Departure In Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.C.App., 9/15/2014, petition for further review, GRANTED, 11/26/2014.  Since the adoption of the Guidelines it’s always been the case that a departure from the presumptive sentence cannot be based upon an element of the offense of conviction.  State v. Osborne, 715 N.W.2d 436 (Minn. 2006).  This is not to say that flanking maneuvers to avoid this rule have ceased.  Far from it.  Indeed, there’s one successful flanking maneuver – the subject of this appeal – that’s right in the Guidelines.  Section II.D.2.b(3) says that a valid ground for departure exists when:

“[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

A jury convicted Mr. Meyers of assault in the first degree from the stabbing of A.C.  This stabbing caused a ten inch knife wound that penetrated her liver and adrenal gland; and she also sustained permanent nerve damage to her thumb from a separate cut.  An element of first degree assault is “substantial bodily injury.”  Mr. Meyers argued that because injury was an element of the offense that injury could not also be used to support a departure notwithstanding the language of the above Guidelines section.

As well as the Supreme Court opinion, State v. Peake, 366 N.W.2d 299 (Minn. 1985).  Mr. Meyers sought to distinguish this case by two more recent ones.  in the first, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the supreme court threw out a departure under the “major controlled substance offense” provision which is based, in part, on the quantity of drugs.  The court had cautioned courts about using the quantity of drugs to support a departure.  In the other case, State v. Thompson, 720 N.W.2d 820 (Minn. 2006). the supreme court threw out a departure in a theft by swindle over $35,000.00 conviction where the amount of the swindle had been really over $35,000.00. 

The court here says that the Guidelines provision in play “is not duplicative in its consideration of victim injury.”  (Fact of injury becomes “consideration” of injury, something of a re-wright of the language of the Guidelines.)  That’s because injury is actually is a limitation on the applicability of this aggravating factor provision.  The court can only impose a departure when the current conviction is for a crime that involved injury to a victim, and the defendant has a previous conviction for a crime involving injury to a victim.