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State v. Johnson

Supreme Court of Minnesota
Jan 12, 1990
450 N.W.2d 134 (Minn. 1990)

Summary

concluding that a double durational departure was justified by a number of factors, including that the 14-year-old sexual assault victim was particularly vulnerable due to the fact that she was babysitting two infants and "she was not free to try to flee because she had a responsibility to the infants who were present"

Summary of this case from State v. Vance

Opinion

No. C4-89-384.

January 12, 1990.

Susan L.-P. Hauge, Asst. State Public Defender, Minneapolis, for appellant.

Lee W. Barry, III, Sr. Atty., Appellate Section, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.


In its unpublished decision in this case the court of appeals affirmed the conviction of defendant Daniel Bruce Johnson of attempted criminal sexual conduct in the first degree and also affirmed a greater-than-double durational departure from the presumptive sentence. We granted defendant's petition for review in order to reduce his sentence to double the maximum presumptive sentence pursuant to the doubling limitation of State v. Evans, 311 N.W.2d 481 (Minn. 1981).

The victim, P., was 14 years old and was sitting with two infants, who were the children of two women who were living together in Minneapolis. Defendant, who worked the night shift at a nearby foundry, came by twice to see the women, who were not home on either occasion. On the second occasion, shortly after 1:00 a.m., he entered the apartment and began talking with P. After 15 minutes, he pulled a knife on her, tried to kiss her, then fondled her. P. feigned uncontrollable twitching and screamed. Defendant fled.

The applicable presumptive sentence for the completed offense of criminal sexual conduct in the first degree, a severity level VIII offense, when committed by a person with defendant's criminal history score of three, is 76 (71-81) months in prison. Pursuant to Minnesota Sentencing Guidelines II.G., the presumptive sentence for the attempted offense is one half the presumptive sentence for the completed offense. In this case the trial court imposed a sentence of 114 months, triple the median presumptive sentence of 38 months (one half of the 76-month median presumptive sentence for the completed offense).

In State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981), we held that " generally in a case in which an upward departure in sentence length is justified, the upper limit will be double the presumptive sentence length." We made it clear, however, that the doubling limit is not an absolute upper limit on the scope of departure "because there may well be rare cases in which the facts are so unusually compelling that an ever greater degree of departure will be justified." Id.

In a very limited number of cases — see, e.g., State v. Mortland, 399 N.W.2d 92 (Minn. 1987), and State v. Herberg, 324 N.W.2d 346 (Minn. 1982) — we have concluded that severe aggravating circumstances were present justifying a durational departure of greater than two times the presumptive sentence.

Whether a given case is the "rare" case where the aggravating circumstances are so severe that a greater-than-double durational departure is justified is a decision which must be based on our "collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).

In this case a double durational departure was justified by a number of factors, including (a) the fact that defendant in effect invaded what was temporarily the victim's zone of privacy and (b) the particular vulnerability of the victim due to (i) her age, (ii) the fact that she felt that she had to talk with defendant because he was a friend of the people for whom she was working and (iii) the fact that she was not free to try to flee because she had a responsibility to the infants who were present. However, we believe that this is not such an extraordinary case that a greater-than-double durational departure is justified. Accordingly, we reduce the sentence to 81 months or two times the maximum presumptive sentence length of 40.5 months.

Affirmed as modified.



Summaries of

State v. Johnson

Supreme Court of Minnesota
Jan 12, 1990
450 N.W.2d 134 (Minn. 1990)

concluding that a double durational departure was justified by a number of factors, including that the 14-year-old sexual assault victim was particularly vulnerable due to the fact that she was babysitting two infants and "she was not free to try to flee because she had a responsibility to the infants who were present"

Summary of this case from State v. Vance

concluding that departure was justified by multiple factors, including victim's inability to flee because she was babysitting two infants

Summary of this case from State v. Grampre

reversing a greater-than-double durational departure for attempted first-degree criminal sexual conduct in which the victim was particularly vulnerable because she was 14 years old and caring for two infants at the time of the offense and the offense occurred in victim’s zone of privacy

Summary of this case from State v. Barthman

modifying an upward durational departure to double the high end of the presumptive sentencing range

Summary of this case from State v. Barthman

noting among other aggravating factors supporting a double-upward departure "the fact that [the victim] was not free to try to flee because she had a responsibility to the infants who were present"

Summary of this case from State v. Conley

reducing sentence without explanation except that "we believe that this is not such an extraordinary case that a greater-than-double durational departure is justified"

Summary of this case from Dillon v. State
Case details for

State v. Johnson

Case Details

Full title:STATE of Minnesota, Respondent, v. Daniel Bruce JOHNSON, Petitioner…

Court:Supreme Court of Minnesota

Date published: Jan 12, 1990

Citations

450 N.W.2d 134 (Minn. 1990)

Citing Cases

State v. Barthman

Id. We have interpreted the Evans rule to authorize a sentence that is twice the upper end of the presumptive…

State v. Karnes

Id. (quoting State v. Skinner, 450 N.W.2d 648, 654 (Minn.App. 1990), review denied (Minn. Feb. 28, 1990));…