Opinion
No. C3-98-1372.
Filed May 4, 1999.
Appeal from the District Court, Ramsey County, File No. K8973846.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This appeal is from a judgment of conviction for first-degree burglary and second-degree assault. See Minn. Stat. §§ 609.222, subd. 1, 609.582, subd. 1(b), (c) (1996). Appellant Robert Ahlberg was sentenced to concurrent terms of 86 months and 36 months. Because we conclude the trial court did not abuse its discretion in instructing the jury on appellant's failure to testify or in imposing an upward sentencing departure, we affirm.
FACTS
Ahlberg was charged with attempted second-degree murder, second-degree assault, and two counts of first-degree burglary for entering the duplex apartment of his former girlfriend and firing a shotgun through a bedroom door. The shooting occurred at about 3:00 a.m., as Ahlberg's former girlfriend and her new boyfriend were in the bedroom. The former girlfriend was struck in the hand by a shotgun pellet.
The jury found Ahlberg not guilty of attempted second-degree murder but guilty of the other counts. The trial court sentenced Ahlberg to 86 months on the first-degree burglary, an upward departure from the presumptive sentence of 48 months, and to a concurrent 36 months, the presumptive sentence, for second-degree assault.
DECISION I.
Ahlberg argues that the trial court abused its discretion in giving CRIMJIG 3.17, the instruction that the jury should draw no adverse inference from the defendant's failure to testify, without first having obtained his on-the-record consent to the instruction. See State v. Larson , 358 N.W.2d 668, 671 (Minn. 1984) (holding court should not give CRIMJIG 3.17 unless requested by defendant). But it is not error to give CRIMJIG 3.17, even over the defendant's objection, if the defense "opens the door" to that instruction. Id. Here, as in Larson , defense counsel in closing argument "use[d] the defendant's failure to testify as part of the defense," id. , when she argued that the jury could consider Ahlberg's not guilty plea "along with all the other evidence" as the equivalent of a denial under oath.
As the supreme court stated in Larson ,
[a] plea of not guilty is not testimony or the equivalent of testimony; rather, it is merely the formal way a criminal defendant puts the state to its [burden of proof].
Id. Defense counsel, by making the same argument disapproved in Larson , "opened the door" to the giving of CRIMJIG 3.17. Moreover, defense counsel did not object to any of the court's instructions, including CRIMJIG 3.17. In Larson , the supreme court affirmed even though the trial court gave CRIMJIG 3.17 over a defense objection and added another instruction explicitly negating defense counsel's argument. Larson , 358 N.W.2d at 671-72. The use of CRIMJIG 3.17 alone, without defense objection, was certainly not an abuse of discretion under Larson .
II.
Ahlberg argues that the trial court abused its discretion by imposing a sentence of 86 months for the first-degree burglary, a less-than-double upward departure from the presumptive sentence of 48 months.
The trial court has discretion to depart from the presumptive sentence if there are aggravating or mitigating circumstances. State v. Best , 449 N.W.2d 426, 427-28 (Minn. 1989). This court will not reverse a departure absent a clear abuse of discretion. State v. Garcia , 302 N.W.2d 643, 647 (Minn. 1981).
The burglary was aggravated because it violated an order for protection the victim had obtained against Ahlberg. See State v. Coley , 468 N.W.2d 552, 556 (Minn.App. 1991) (holding violation of restraining order was separate factor from invasion of zone of privacy). Ahlberg's conduct, moreover, was part of a history of abuse, a lengthy course of conduct that also supports the departure. See generally State v. Murphy , 545 N.W.2d 909, 917 (Minn. 1996) (upward departure for terroristic threats supported in part by ten-year duration of conduct). The presentence investigation also indicates that Ahlberg's former girlfriend required psychological counseling as a result of the offense. Although the trial court did not cite this factor, it is a proper aggravating factor, establishing the victim's psychological injury. State v. Patterson , 511 N.W.2d 476, 478 (Minn.App. 1994), review denied (Minn. Mar. 31, 1994). Moreover, although invasion of the "zone of privacy" is an element of first-degree burglary that may not be used as grounds for departure, the victim, who was at rest in the early hours of the morning, was particularly vulnerable at the time of the offense, even beyond her rightful reliance on the security of her own dwelling. Therefore, we conclude the trial court did not clearly abuse its discretion in imposing a 1.7-times upward departure from the presumptive sentence for first-degree burglary.