Multiple Sex Acts of Various Kinds Support Upward Departure

State v. Abrahamson, Minn.Ct.App., 12/9/2008.

Mr. Abrahamson plead guilty to first degree criminal sexual conduct - sexual penetration of a person under 16 by an offender who has a significant relationship with the victim including multiple acts of sexual abuse over an extended period of time - and also to exposing a child to methamphetamine activity.  During the plea, Mr. Abrahamson admitted to engaging in multiple acts of sexual abuse, including sexual touching and "penetration, but denied penetrating [the child's] vagina or anus."  Mr. Abrahamson waived a jury sentencing hearing on the state's motion for an upward departure, which the state based on these grounds:

(1) 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 trial court determined that there were factors that supported an upward durational departure.  Among them were "the multiplicity of trauma and the sex acts," and viewing of pornographic movies.  The Court of Appeals accepts these two factors, but points out that under the offense of conviction multiple sex acts, alone, cannot serve as a departure factor because it is an element of the offense.  On the other hand, "the variety in the sexual acts is a valid reason for departure."  See Rairdon v. State, 557 N.W.2d 318 (Minn. 1996).  The Court of Appeals also agreed with the trial court that the use of pornography as a prelude to the sexual acts supported a departure.  (It is not entirely clear from the opinion, however, that Mr. Abrahamson admitted to this behavior during the plea hearing and Blakely waiver.)

The Court of Appeals somewhat reluctantly agreed that exposing the child to methamphetamine was not a valid factor for departure.  The Court acknowledged that the conviction for such exposure could not be the basis of a departure,  because it was the basis for the conviction on the other count to which Mr. Abrahamson pled.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  The record did not sufficiently establish that such exposure was a part of the CSC I conviction, and so it does not support a departure.