Opinion
No. C2-00-1171
April 3, 2001.
Appeal from the District Court, Clay County, File No. K8992198.
Michael A. Hatch, Minnesota Attorney General, Kelly O'Neill Moller, Assistant Attorney General, Caia Johnson, Certified Student Attorney, and Lisa Borgen, Clay County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant was charged with three counts of criminal sexual conduct in the first degree. A jury found appellant guilty of all three counts. The district court sentenced appellant on Count 3, Minn. Stat. § 609.342, subd. 1(e)(i) (1998) (offender "causes personal injury [and] uses force or coercion to accomplish sexual penetration"). An upward departure of at least twice the presumptive sentence of 86 months (severity level-eight offense; zero criminal history points) is required for this offense where the crime involves at least one aggravating factor that would warrant upward departure under the sentencing guidelines. See Minn. Stat. § 609.109, subd. 6 (1998). Citing six aggravating factors, the district court sentenced appellant to 172 months (14 years, 4 months). Appellant challenges the sentence, arguing that his crime was no more serious than the typical first-degree criminal sexual assault. Because the district court did not abuse its discretion in sentencing, we affirm.
FACTS
In August 1999, appellant Bajram Hajrusi sexually assaulted S.A., a 12-year-old family friend who was babysitting Hajrusi's children. At the time of the assault, Hajrusi was 27 years old. Both Hajrusi's family and S.A.'s family were Bosnian refugees who came to the United States in 1997-98. Hajrusi and the victim's father both served in the Bosnian military, and the victim's mother, Ruka, had known Hajrusi since childhood. The two families had been close while living in Bosnia, and when S.A. and her siblings moved with their mother to Minnesota, Hajrusi and his wife helped the family settle into the area. S.A. and her siblings, who were older than Hajrusi's children, often baby-sat Hajrusi's children.
On August 6, 1999, S.A. was helping with Hajrusi's children because Hajrusi's wife was feeling ill and Hajrusi was not at home. At around midnight, Hajrusi's wife complained of difficulty breathing. S.A. called 911. An ambulance arrived and took Hajrusi's wife to the hospital. S.A. telephoned her mother, who told S.A. to remain with Hajrusi's children.
Hajrusi arrived home approximately an hour later and found S.A. and his children sleeping. Hajrusi woke S.A., who told him that his wife was at the hospital. Hajrusi went to the hospital. When Hajrusi returned at around 3 a.m., he again woke S.A. and told her he had a movie he wanted her to watch. S.A. reluctantly agreed and sat on the couch with Hajrusi while the movie started. When S.A. realized that the movie was pornographic, she stood up, spit at Hajrusi, and walked toward the hallway of the apartment. Hajrusi pursued her and grabbed her from behind, forcing her to the floor. Hajrusi pulled up her shirt and fondled her breasts, and then pulled down her pants and inserted his fingers into her vagina. S.A. began swearing at Hajrusi, and he responded by telling her that he loved her. Hajrusi attempted to penetrate S.A. with his penis and she hit him in the face. Hajrusi then stood up and forced his penis against S.A.'s mouth and lips. S.A. tried to escape, but Hajrusi grabbed her and pulled her back onto the couch, positioning S.A. on top of him. Hajrusi then put his penis between her legs and began moving up and down. At some point, Hajrusi let go of S.A. S.A. fled to the other side of the room. She saw Hajrusi masturbate until he ejaculated. Hajrusi threatened to kill S.A. and her family if she told anyone about what had happened. Hajrusi also gave S.A. $10 not to tell anyone, but she threw the money away.
For the next two days, S.A. experienced pain and bleeding as a result of the assault. S.A. did not tell anyone about the assault for approximately two or three months, then she confided in a friend and later told her mother.
At trial, Hajrusi denied the assault and testified that S.A.'s mother, Ruka, had persuaded S.A. to fabricate the allegations against him because Hajrusi had spurned Ruka's romantic advances. The jury found Hajrusi guilty of all charges. At his sentencing hearing, Hajrusi admitted that he had lied under oath at trial and confessed to sexually assaulting S.A. The district court sentenced Hajrusi to 172 months, a double-upward departure from the presumptive sentence. The district court cited six aggravating factors to justify the double-upward departure: multiple penetrations; Hajrusi's threats following the assault; the predatory nature of the crime; Hajrusi's violation of his position of trust; S.A.'s particular vulnerability; and S.A.'s physical and emotional/psychological injury. On appeal, Hajrusi argues that the district court abused its discretion by departing upward from the sentencing guidelines and asks this court to reduce his sentence to the presumptive sentence of 86 months.
At sentencing, Count 2 was dismissed based on the prosecutor's statement and the district court's agreement that the state failed to prove Count 2 beyond a reasonable doubt.
DECISION
The district court's decision to depart from the sentencing guidelines rests within its sound discretion and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An upward departure is within the sentencing court's discretion if aggravating circumstances are present. See State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Departure from the presumptive sentence should be reserved for offenses that are significantly worse than the typical offense. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989).
The sentencing guidelines contain a non-exhaustive list of aggravating factors that may justify a departure. Minnesota Sentencing Guidelines II.D.2.b; State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982). Generally, a sentencing court considers the course of conduct underlying the crime for which the defendant is being sentenced. State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Elements of the offense, however, are not proper factors to consider for an upward departure. State v. Yanez, 469 N.W.2d 452, 457 (Minn.App. 1991) (citation omitted), review denied (Minn. June 19, 1991); see, e.g., State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983) (stating defendant's position of authority not valid ground for departure where offense requires actor to be in position of authority). Even where the reasons articulated by the district court are improper, this court will uphold the sentence if the record contains other grounds to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
Here, the district court sentenced Hajrusi pursuant to Minn. Stat. § 609.109, subd. 6 (1998), which mandates an upward departure of at least twice the presumptive sentence where (1) the offender is convicted under Minn. Stat. § 609.342, subd. 1(e), and (2) the offense involved at least one aggravating factor. The district court cited six aggravating factors as justification for the upward departure.
Multiple penetrations
The district court cited Hajrusi's multiple penetrations of S.A, noting that Hajrusi digitally penetrated S.A.'s vagina, and twice attempted to vaginally penetrate her with his penis, as well as orally penetrating her. Multiple penetrations alone justify a double departure. State v. Heinkel, 322 N.W.2d 322, 327 (Minn. 1982); see State v. Mesich, 396 N.W.2d 46, 52 (Minn.App. 1986) ("Multiple penetrations alone will generally justify a double * * * departure."), review denied (Minn. Jan. 2, 1987); see also Van Gorden, 326 N.W.2d at 635 (noting three different forms of penetration constitutes a permissible aggravating factor justifying upward departure). The district court properly considered Hajrusi's multiple penetrations of S.A. as an aggravating factor.
Minnesota's criminal jury instructions state:
Fellatio constitutes sexual penetration if there is any contact between the penis of one person and the mouth, tongue or lips of another person.
10 Minnesota Practice, CRIMJIG 12.05 (1999).
Hajrusi's threats to kill S.A. and her family
According to the sentencing guidelines, an aggravating circumstance is present where "[t]he victim was treated with particular cruelty for which the individual offender should be held responsible." Minn. Sent. Guidelines II.D.2.b (2); see, e.g., Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (holding defendant's death threats, in part, illustrated particular cruelty that constituted an aggravating circumstance); State v. Cermak, 344 N.W.2d 833, 840 (Minn. 1984) (holding defendant's threat to 12-year-old sexual-assault victim that he would break every bone in child's body if child revealed the assault, qualified as an aggravating factor). After the assault, Hajrusi threatened to kill S.A. and her family if she told anyone about the assault. S.A. knew of Hajrusi's military training and participation in the Bosnian war and believed Hajrusi capable of carrying out this threat. The district court properly considered the threat as an aggravating factor.
Predatory nature
The district court noted that Hajrusi knew S.A. was alone with the children. He seized this opportunity to leave the hospital and return home to wake up S.A. to show her a pornographic movie and then sexually assault her. See State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (citing planning, among other factors, as an appropriate aggravating factor justifying departure); see, e.g., State v. Sebasky, 547 N.W.2d 93, 96, 101 (Minn.App. 1996) (finding offender's planning of showing pornographic movies, inducement with gifts, and orchestrating overnight stay-overs with mother's permission, as valid aggravating factor in upward sentence departure for violation of Minn. Stat. § 609.342), review denied (Minn. June 19, 1996). The district court properly considered Hajrusi's planning as an aggravating factor.
Abuse of position of trust
Abuse of a position of trust has been upheld as a valid basis for a durational departure. See State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) (relying on abuse of position of trust as aggravating factor where not element of the crime); see, e.g., State v. Griffith, 480 N.W.2d 347, 351 (Minn.App. 1992) (indicating appellant violated position of trust where he raped victim after she moved in with appellant and his family), review denied (Minn. Mar. 19, 1992). Here, Hajrusi was a friend of S.A.'s family and S.A. babysat Hajrusi's children. S.A.'s mother and Hajrusi had been childhood friends, and S.A.'s father and Hajrusi were friends in the Bosnian military. At trial, S.A.'s mother testified that she considered Hajrusi and his wife "[l]ike my brothers [sic] and my sister." S.A.'s mother told her daughter to remain at Hajrusi's home and look after Hajrusi's children after Hajrusi's wife was taken to the hospital. S.A. felt comfortable enough to go to sleep in Hajrusi's home. The district court did not abuse its discretion in finding that Hajrusi's betrayal of S.A.'s trust constitutes an aggravating circumstance justifying upward departure.
Other factors
The district court also cited the particular vulnerability of the victim and the psychological injury to the victim as aggravating factors. Because we have already found sufficient basis for the departure, we do not analyze these factors separately. Hajrusi acknowledges that all of the factors cited are recognized aggravating factors, but argues that all are present, to varying degrees, in every first-degree sexual assault or are elements of the offense for which he was sentenced. We disagree. Not all first-degree criminal sexual conduct cases involve multiple penetrations, threats, abuse of trust, or the type of planning demonstrated in this case. The district court evaluated this case according to standards set out in the sentencing guidelines and did not abuse its discretion in determining that a double upward departure was warranted and appropriate. Affirmed.
The district court noted that personal injury is an element of the crime for which appellant was sentenced.
Hajrusi argues that this court "will be hard pressed to explain" why his conduct warrants a sentence of 172 months when probation was appropriate in State v. Lorenzen, No. CX-00-124, 2000 WL 758266 (Minn.App. June 13, 2000). Distinguishing the present case from Lorenzen, however, is not difficult. In Lorenzen, the defendant was convicted of first-degree criminal sexual conduct after sexually assaulting his stepdaughter. Lorenzen, 2000 WL 758266, at *1. We affirmed the district court's decision to sentence Lorenzen to outpatient treatment instead of incarceration. Id. There, the psychologist assigned to assess Lorenzen recommended either incarceration or outpatient sex-offender treatment. Id. Both the victim (Lorenzen's stepdaughter) and her mother (Lorenzen's wife) wrote letters to the court asking that Lorenzen not serve prison time. Id. Lorenzen's extended family and friends supported his treatment, as opposed to his imprisonment. Id. Also, significant restrictions were placed on Lorenzen's contact with the victim. Lorenzen, 2000 WL 758266, at *2.
Here, by contrast, the record contains no recommendation that Hajrusi serve less than 172 months, and nothing indicates that Hajrusi is more suited to the presumptive sentence, let alone probation. Moreover, the district court was obligated to double Hajrusi's presumptive sentence under Minn. Stat. § 609.109, subd. 6, because he was convicted of one of the designated offenses and aggravating factors were present.