State v. Herberg

Citation324 NW 2d 346,347 Minn. 1982
Decision Date08 September 1982
Docket NumberNo. 82-64.,82-64.
PartiesSTATE of Minnesota, Respondent, v. David M. HERBERG, Appellant.
CourtSupreme Court of Minnesota (US)

C. Paul Jones, Public Defender and Lawrence Hammerling, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen. and Norman B. Coleman, Jr., Sp. Asst. Atty. Gen., St. Paul, Gaylord A. Saetre, Jr., County Atty., Long Prairie, Roger Van Heel, County Atty., St. Cloud, for respondent.

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

AMDAHL, Chief Justice.

This is a criminal appeal from judgment of conviction which raises only sentencing issues, namely, the propriety of departure from the Guidelines presumptive sentence, scope of departure, and application of Minn. Stat. § 609.035 (1980), which forbids multiple sentencing of a defendant for multiple offenses against the same victim as part of one behavioral incident.

Defendant, who is now 39, is a compulsive sex offender who was first convicted in 1973 in Douglas County of attempted aggravated rape of a 15-year-old female. After failing in treatment, defendant was sentenced to prison, where he remained until 1977, when he was paroled.

We are concerned primarily with the conduct of defendant that occurred on the afternoon of July 17, 1981. On that day defendant was driving north of Sauk Centre, which is in Stearns County, when he spotted a 14-year-old girl on her bicycle. Defendant stopped and, using a knife, forced the girl into his car, tied her hands with his belt, pushed her on the floor, and covered her with a blanket.

He then drove a short way into Todd County and turned onto a gravel road, where he stopped. There he used his knife to cut off her clothes. He then inserted some of his fingers into her vagina. He also cut her vagina with the knife.

Feeling perhaps that they were in an area where they might be observed, defendant had the victim dress herself, and he then drove to a gravel pit in a nearby Todd County township. There he ordered her to remove her clothes again and forced her to remove his also. He then made her stick a safety pin into the nipple of her left breast. He then forced her to ask him to hit her. After hitting her, he forced her to commit fellatio and to submit to anal penetration. He made her use a cigarette to burn herself on a breast and near the pubic area. He then defecated and urinated on her face, forcing her to ingest some of the excrement and urine. He then made her urinate into a cup and drink it. He then took a string from her blouse and choked her to the point of unconsciousness, leaving burn marks on her neck. Then, after cutting her with his knife in a couple places, he drove her back to the area from which he had abducted her and released her.

It appears that in committing these various acts, defendant was giving life to some stories he had read in various pornographic books. These books, which were seized from defendant following his arrest, bear titles such as Violent Stories of Kinky Humiliation, Violent Stories of Dominance and Submission, Bizarre Sex Crimes: Shamed Victims, and Watersports Fetish: Enemas and Golden Showers.

Defendant was charged in Stearns County with kidnapping and assault in the second degree (assault with a dangerous weapon). Defendant was charged in Todd County with kidnapping; two counts of assault in the second degree (one count for cutting the victim's vagina and the other for cutting her in the chest); three counts of criminal sexual conduct in the first degree (one for penetrating the victim's vagina with his fingers, one for the act of fellatio, and one for the anal penetration); and one count of attempted first-degree murder (for choking her).

Pursuant to a plea negotiation resulting in the dismissal of the other charges, defendant was permitted to plead guilty to two counts of assault in the second degree (one for threatening the victim in Stearns County and one for cutting her vagina in Todd County) and two counts of criminal sexual conduct in the first degree (one count for penetrating the victim's vagina with his fingers and one count for penetrating her anus with his penis, both acts occurring in Todd County).

The district court sentenced defendant to consecutive terms of 240 months for each of the two sex offenses, making a total of 480 months or 40 years in prison. The court imposed terms of 54 months each for the two assaults, with the terms to run concurrently with each other and with the sentences for the sex offenses.

Defendant's criminal history score at the time of sentencing was two, based on one prior felony conviction and one custody status point. Criminal sexual conduct in the first degree is a severity level VIII offense and assault in the second degree is a severity level VI offense. The presumptive sentence for criminal sexual conduct in the first degree by a person with a criminal history score of two is 65 (60-70) months in prison.

Under Minn.Stat. § 609.035 (1980) a sentencing court cannot impose multiple sentences (even concurrent sentences) for multiple offenses committed against the same victim in a single behavioral incident. Even in those instances in which multiple sentencing is permitted, concurrent multiple sentencing is the norm under the Sentencing Guidelines. Section II.F. of the Guidelines provides that, absent grounds for departure, consecutive sentences may be given only in the following cases:

1. When a prior felony sentence for a crime against a person has not expired or been discharged and one or more of the current felony convictions is for a crime against a person, and when the sentence for the most severe current conviction is executed according to the guidelines; or
2. When the offender is convicted of multiple current felony convictions for crimes against different persons, and when the sentence for the most severe current conviction is executed according to the guidelines; or
3. When the conviction is for escape from lawful custody, as defined in Minn. Stat. § 609.485. The presumptive disposition for escapes from executed sentences shall be execution of the escape sentence. If the executed escape sentence is to be served concurrently with other sentences, the presumptive duration shall be that indicated by the appropriate cell of the Sentencing Guidelines Grid. If the executed escape sentence is to be served consecutively to other sentences, the presumptive duration shall be that indicated by the aggregation process set forth below.

In explaining its decision to impose multiple sentences in this case, the district court, citing State v. Stevenson, 286 N.W.2d 719 (Minn.1979), stated its belief that the various offenses were not part of a single behavioral incident.

In Stevenson, which is a pre-Guidelines case, the defendant and his wife persuaded a 15-year-old girl to accompany them to a farm. There the defendant took the girl to the house and raped her. After this was over, the victim went to the car and stayed in it for about 4 hours. Whenever she asked to be taken home, the defendant would say that he was afraid that she would go to the police. Finally, nearly 5 hours after the first rape, the defendant raped her again. Several hours later he and his wife returned her to town. Stevenson was charged with two counts of criminal sexual conduct in the first degree but, possibly as a result of instructions which did not clearly distinguish criminal sexual conduct in the first degree from criminal sexual conduct in the third degree, was convicted only of two counts of criminal sexual conduct in the third degree. The trial court sentenced Stevenson to consecutive 5-year prison terms. In upholding the multiple sentences, we stated as follows:

A closer issue, but one which we also resolve against defendant, is that raised by the contention that in sentencing him to two terms the trial court violated section 609.035, which bars multiple punishment of a defendant for multiple offenses arising from the same behavioral incident. While the offenses both involved coerced sexual intercourse with the same 15-year-old girl and
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