Minnesota Court of Appeals Affirms Upward Departure in First-Degree Criminal Sexual Conduct Case
In a published decision, State v. Abrahamson, issued on December 9, 2008, the Minnesota Court of Appeals affirmed the district court's upward departure in sentencing an individual convicted of first-degree criminal sexual conduct. Judge Schellhas wrote the opinion, without dissent.
Abrahamson was charged with three counts of criminal sexual conduct, one count of possession of substances with intent to manufacture methamphetamine, one count of exposing a child to methamphetamine activity, and one count of endangerment of a child. Pursuant to a plea agreement, he admitted that from 1999 through August 2005, he engaged in multiple acts of sexual abuse of his child. Abrahamson also admitted to possessing materials that could be used to manufacture methamphetamine in his home.
At sentencing, the prosecutor asked for an upward durational departure, arguing that the offense occurred over a period of five to six years; (2) the minor victim was treated with particular cruelty; (3) the minor victim was forced to watch pornographic movies; (4) the minor victim was told that appellant wanted to photograph her without clothes; (5) there was use of and exposure to illegal drugs; and (6) overall, the conduct was far more egregious than the usual child-sexual-abuse case.
The district court agreed with the prosecutor and opined:
The Court does find that there are some things that were listed by [the prosecutor] as bases for departure depending on how I decide this case, and those for the sake of argument would include the longevity and the extent of the crime, the fact that multiple acts involving the same vulnerable young girl took place over years of time, the multiplicity of trauma and the sex acts that this child was exposed to involving oral sex, feigned anal sex, appliances and the like all exceedingly damaging and harmful to a young child. The third factor that [the prosecutor] called to the Court’s attention I think has some merit for discussion purposes is the fact that [appellant] utilized methamphetamine and marijuana as well as promises to “groom” this child for his victimization and also used the viewing of pornographic movies so as to lower the child’s natural inhibitions and/or fears regarding the adult nature of the acts that were being suggested and perpetrated by [appellant]. I think all of those things do support a motion as brought by [the prosecutor].
Abrahamson appealed. Judge Schellhas reiterated that a district court "may depart from the sentencing guidelines if substantial and compelling circumstances are present." She stated that "A district court’s discretion is broad, and only a rare case warrants reversal of the refusal to depart."
The Court found that variety in the sexual acts is a valid reason for departure and that the sharing of pornographic materials with the victim constituted a valid aggravating factor because Abrahamson's use of pornography with the child demonstrated that he committed the criminal sexual conduct in a "particularly serious way."
In Minnesota, factors relevant to dispositional departures include a defendant's amenability to probation, the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family. These are known as the Trog factors. While these factors were argued by Abrahamson's counsel, the Minnesota Court of Appeals found no basis for a downward dispositional departure.
