Opinion
No. A06-719.
Filed: October 16, 2007.
Appeal from the District Court, Beltrami County, File No. KX-05-0172.
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, (for respondent).
Barry V. Voss, (for appellant).
Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant argues that the district court abused its discretion in imposing a double durational departure when it sentenced him for criminal sexual conduct in the first degree because the four aggravating factors used to support a double departure were not found by the jury beyond a reasonable doubt. Because we see no abuse of discretion in appellant's sentence, we affirm.
FACTS
On 5 February 2006, appellant Rudolph White was arrested in connection with the sexual assault of a 69-year-old woman in her garage. Appellant was charged with criminal sexual conduct in the first degree and burglary in the first degree. A jury found him guilty of both counts. A second phase of the trial was held on aggravating factors. The jury found four such factors: (1) multiple methods of penetration, (2) a particularly vulnerable victim, (3) an offense in the victim's zone of privacy, and (4) severe psychological and emotional trauma caused to the victim. Appellant was sentenced to 288 months, a double durational departure. He challenges his sentence, arguing that the double durational departure was an abuse of the district court's discretion because the aggravating factors were independently insufficient and were not sufficiently proved.
DECISION
This court reviews a sentencing court's departure from the sentencing guidelines for an abuse of discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).
1. Sufficiency of Departure Evidence.
Appellant suggests that each aggravating factor must independently justify a sentencing departure. But, while one factor may be sufficient to justify a departure, factors may be considered together to provide that justification. See, e.g., State v. Losh, 721 N.W.2d 886, 897 (Minn. 2006) ("In light of the presence of these two aggravating factors, there is sufficient evidence in the record to justify the departure. . . ."); State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985) (upholding double durational departure when only one aggravating factor was present).
2. Proof Beyond a Reasonable Doubt.
At the threshold, appellant asserts that none of the four aggravating factors was "proven beyond a reasonable doubt." But appellant provides no basis for this assertion. An assignment of error based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App. 1997). We see no prejudicial error. Moreover, appellant concedes in his brief that "the district court instructed the sentencing jury that it must unanimously find each aggravating factor proven beyond a reasonable doubt. . . ." A jury is presumed to follow the district court's instructions. State v. James, 520 N.W.2d 399, 405 (Minn. 1994). The jury here found all four factors proven beyond a reasonable doubt.
a. Multiple Penetrations
The victim testified that appellant penetrated her vagina with his penis and tongue; appellant does not dispute this testimony. Multiple types of penetration are grounds for upward departure. See, e.g., State v. Griffith, 480 N.W.2d 347, 351 (Minn.App. 1992) (holding that three types of vaginal penetration justified upward departure), review denied (Minn. 19 Mar. 1992). This factor was proved by sufficient evidence.
b. Vulnerable Victim
The victim was age 69 at the time of appellant's assault. Age has been found to justify a departure on the basis of a victim's vulnerability. See, e.g., State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982) (victim was 66); State v. Kimmons, 502 N.W.2d 391, 393, 397 (Minn.App. 1993) (victim was 63), review denied (Minn. 16 Aug. 1993).
Appellant claims that, although the victim was age 69, she was not vulnerable because she was able to "put up a spirited fight" with appellant and to flee. But the victim's struggles were not adequate to prevent appellant from pulling her clothes off and achieving multiple vaginal penetrations before she fled. Appellant offers no support for the implication that, in order to be a "vulnerable victim" for aggravation purposes, the victim must be unable to oppose an assault.
c. Zone of Privacy
Raping a victim in her garage is an invasion of the zone of privacy surrounding and including the victim's home. State v. Pickett, 343 N.W.2d 670, 674 (Minn.App. 1984) (upholding upward departure for defendant who raped victims in the victims' garages). It is undisputed that the assault took place in the victim's garage, where appellant went after the victim refused him entry into her house. Appellant argues that, because he entered her garage to seek shelter rather than to commit rape, he did not violate the zone of privacy. But he offers no support or compelling rationale for his assertion that an offender's intent is relevant to, much less dispositive of, a finding that a crime occurred within the victim's zone of privacy. Undisputed evidence supports the finding that appellant violated the victim's zone of privacy.
d. Psychological or Emotional Trauma
The victim testified that, since the rape incident, she is afraid to enter her garage, she cannot sleep, she has nightmares, and she can no longer share a bed with her husband. The psychologist who treated appellant after the incident testified that her post-traumatic stress disorder is "severe." Appellant did not refute this testimony but claims that the victim's frustration and anxiety over whether charges against him would be dismissed, not the rape itself, are responsible for her condition. This claim lacks support.
Appellant also relies on State v. Hagen, 679 N.W.2d 739 (Minn.App. 2004), to argue that the victim's psychological injury is no greater than that typical for a rape victim and therefore is not an aggravating factor. But Hagen rejected that argument, finding that the victim's psychological trauma was "substantial," id. at 742, and holding that "[a] sexual assault victim's psychological and emotional trauma may support a less-than-double upward departure." Id. at 741. The departure in Hagen was 50% rather than 100% (from 144 months to 216 months rather than 288 months) but only two factors, vulnerability and psychological trauma, were found in Hagen. Id. at 740-41. Here, there are four factors. Hagen does not support a reversal of appellant's sentence.
3. Conclusion.
We conclude that the jury's finding of four aggravating factors is supported by the evidence. We further conclude that the factors collectively justify the double durational departure. Accordingly, we affirm.