State v. Van Gorden, 82-340.

• Decision Date: 24 November 1982
• Docket Number: No. 82-340.,82-340.
• Citation: 326 NW 2d 633
• Parties: STATE of Minnesota, Respondent, v. John VAN GORDEN, Appellant.
• Court: Minnesota Supreme Court

326 N.W.2d 633 (1982)

STATE of Minnesota, Respondent, v. John VAN GORDEN, Appellant.

No. 82-340.

Supreme Court of Minnesota.

November 24, 1982.

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

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Division, Thomas A. Weist, Rick Osborne, Beverly J. Wolfe and William Neiman, Asst. County Attys., Minneapolis, for respondent.

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

AMDAHL, Chief Justice.

This is an appeal from judgment of conviction which raises only one issue, whether the trial court erred in imposing a sentence of 180 months when the presumptive sentence established by the Minnesota Sentencing Guidelines is 54 (50-58) months in prison. We affirm.

At 10:35 p.m. on September 18, 1981, the victim in this case, a 66-year-old widow living in northeast Minneapolis, heard a knock on her front door. When she looked out, she saw defendant, whom she did not know. She motioned him to go away. Instead, defendant went to her rear door and started to kick in the door. She called police and managed to give her address before defendant grabbed the phone from her and terminated the call.

Defendant then dragged her outside, hitting her as he did, to the base of a powerline tower in a wooded area behind her house. After tearing off her clothing, he forced her to commit fellatio, then took out her false teeth and threw them away, then made her resume the act of fellatio. He then penetrated her anus with his penis. He followed this by penetrating her vagina with his penis.

Meanwhile, police had arrived at her house and found the back door broken in. They called for a canine unit and the dog trailed the victim's scent to the scene of the sexual assault. The officer following the dog saw defendant in the act of vaginal intercourse. Upon seeing the police and the dog, defendant got up and fled but was caught by police a short time later.

The beating resulted in a piece of the victim's retinal tissue becoming detached and floating inside the eyeball. There apparently is nothing that can be done about this condition, and it appears that the victim's vision has been permanently impaired as a result.

Defendant, who was 24 at the time of the offense, was subsequently charged with two counts of criminal sexual conduct in the first degree (one alleging that he put the victim in fear of great bodily harm, the other alleging that he inflicted personal injury), burglary and kidnapping, Minn.Stat. §§ 609.342(e)(i), 609.58, subd. 2(1)(b), 609.25, subd. 1(2), 609.25, subd. 2(2) (1980). Defendant pleaded guilty to the second of the two sex charges, burglary and kidnapping.

The kidnapping and sex offenses were both part of the same behavioral incident and therefore, pursuant to Minn.Stat. § 609.035 (1980), the trial court could sentence defendant for only one of the two. The one picked was the sex conviction because, although it is an offense with a shorter maximum prison term than the kidnapping offense, it is classified as a more serious offense by the Sentencing Guidelines. The burglary was also part of the same behavioral incident, but Minn.Stat. § 609.585 (1980) operates to except burglary from the operation of Minn.Stat. § 609.035 (1980). Therefore, the trial court could sentence defendant for the sex offense and the burglary.

Criminal sexual conduct in the first degree is a severity level VIII offense, and, effective August 1, 1981, burglary is a severity level VII offense. At the time of sentencing, defendant had a criminal history score of one, based on a 1977 conviction of criminal sexual conduct in the third degree.¹ The presumptive sentence for the sex offense by a person with a criminal history score of one is 54 (50-58) months in prison. The presumptive sentence for the burglary offense by a person with a criminal history score of one is 32 (30-34) months in prison. If the court had chosen to impose a consecutive sentence for the burglary, a sentence which would have constituted a departure under Minnesota Sentencing Guidelines and Commentary, II.F. (1982), the presumptive sentence duration for the burglary would have been 24 (23-25) months. This is because when consecutive sentences are given the presumptive duration is determined by assigning a criminal history score of zero to the offenses being sentenced consecutively.

Defendant claimed no memory of the incident. His wife spoke on his behalf at the sentencing hearing, blaming his troubles on his drinking problem. She stated that "John is a Doctor Jekyll and Mr. Hyde when he is drinking."

Noting the extraordinarily brutal nature of the sexual assault of the victim, the trial court imposed concurrent prison terms of 180 months for the sexual assault and 24 months for the burglary. This 180-month term is slightly more than three times the maximum 58-month term that the court could have imposed without departing. The trial court cited, as reasons for the greater than double durational departure, the particular vulnerability of the victim and the particularly aggravated nature of the misconduct, including the fact that defendant inflicted permanent injury on the victim.

We agree with the trial court that the victim was...