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State v. Suggs2/11/2003
eaten the children and it is unclear what the children saw. Suggs also argues that the departure cannot be based on the fact that the assault occurred in A.B.'s bedroom because most sexual assaults occur in the victim's zone of privacy and, therefore, are typical for this type of crime. Minnesota caselaw does not support Suggs's arguments.
Presence of Children
The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors that may be used as reasons for departure, including the victim's vulnerability related to physical capacity. See Minn. Sent. Guidelines II.D.2. This court has held in a first-degree criminal -sexual-conduct case that the "presence of the [victim's] child in an adjoining room is analogous to a reduced physical capacity." State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989); see also State v. Eberhardt, 379 N.W.2d 242, 246 (Minn. App. 1986) (affirming a double durational departure from the sentencing guidelines in a first-degree criminal-sexual-conduct case, where the defendant committed rape in the presence of the victim's five-year-old son and in the victim's own home), review denied (Minn. Feb. 19, 1986).
The record clearly indicates that A.B.'s two-year-old son was sleeping in the same bedroom with her, that he woke during the assault on his mother, and that he remained in the room the entire time. The record also clearly indicates that A.B.'s eight-year-old daughter was awakened by her mother's screams, stood in the doorway to her mother's bedroom, and saw Suggs on top of her mother. Based on these undisputed facts, the district court did not abuse its discretion by using the presence of A.B.'s children as an aggravating factor in the sentencing departure.
Zone of Privacy
Minnesota caselaw has established that when an assault occurs in a victim's zone of privacy, the court may use that as a factor in considering whether to depart from the presumptive sentence. See State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (noting that robbery occurring in the victim's home/zone of privacy "is an aggravating factor that can be considered in deciding whether to depart"); State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (holding that an upward sentencing departure was justified because, combined with an assault with a dangerous weapon and personal injury to victim, raping a victim in her back yard was an invasion of the victim's zone of privacy, the rape was more serious than a typical rape; State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (finding that the zone of privacy was invaded when the defendant raped the victim in her home because her home was no longer the victim's "island of security"); State v. Davis, 546 N.W.2d 30, 36 (Minn. App. 1996) (holding that a "limited departure is justified because the sexual assault occurred on [victim's] enclosed porch and, thus, violated her zone of privacy"); review denied (Minn. May 21, 1996); State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (affirming upward sentencing departure where defendant attempted to rape victim in her bedroom and used physical force to inflict bodily injury), review denied (Minn. Mar. 31, 1994). The district court did not abuse its discretion by citing the invasion of A.B.'s zone of privacy as an aggravating factor supporting the sentencing departure.
Because the sexual assault occurred in A.B.'s zone of privacy and in the presence of her children, the district court properly departed upwardly from the presumptive sentence. Because the factual record supports the district court's reasons for the upward departure and the reasons for departure are legally adequate, the district court did
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