A Child's Mere Presence At the Scene of an Assault Does Not Support A Departure

State v. Vance, Minn.S.Ct., 5/21/2009.  A jury convicted Mr. Vance of several criminal sexual conduct offenses, and a second degree assault offense. Although there were children in the apartment during the assaults, the children were never in the room in which the assaults were occurring.  At the Blakely sentencing trial, the state submitted an aggravating factor, that the assaults occurred in the presence of children.  Over objection, the trial court instructed the jury that

The State need not prove that the child or children actually observed or heard the offense or offenses, so long as they could have, from where they were located. Furthermore, a child in an adjoining room could be considered to be within sight or sound of the offense if the defendant knew the child was there, and the victim was less inclined to flee because she did not want to abandon the child.

The presence of children is an aggravating factor when the offense is committed in the actual presence of children.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  It can also be an aggravating factor when the victim is particularly vulnerable because of a child's presence.  State v. Johnson, 450 N.W. 2d 134 (Minn. 1990).  Mr. Vance, however, thought that in this instance, the instruction was a bit too loose because all that jury had to conclude was that it was possible that the children saw or heard the offenses.

The appellate court agrees that the instruction was a material misstate of the law.  Mere presence is not enough; the children must have actually seen or heard the offense.  However, because the jury found two other aggravating factors, either or both of which would support the double departure, the appellate court affirms the sentence.