Upward Departure in Criminal Sexual Conduct Conviction is Upheld

State v. Grampre, Minn.Ct.App., 6/9/2009.  Mr. Grampre broke into his neighbor's home while she slept, then sexually assaulted her as he held a knife to her throat.  The victim's young daughter was in the next room.  Mr. Grampre pleaded guilty to two counts of criminal sexual conduct, first degree burglary, and second degree assault.  The trial court imposed an upward departure on the basis of three aggravating factors:  particular cruelty, particular vulnerability, and prior planning.

The trial court supported its finding of particular cruelty because Mr. Grampre woke the victim, held a knife to her throat during the sexual assault, then forced her to take a shower after the rape.  His argument to the appellate court was that because the use of the knife was the factual basis for the second degree assault conviction, it could not be a basis for departure under the recent Opinion, State v. Jones, 745 N.W.2d 845 (Minn. 2008).

Jones identified four improper grounds for departure, one of which is that conduct underlying one conviction cannot be relied on to support departure on a sentence for a separate conviction.  The appellate court said that Mr. Grampre would be correct but for a statutory exception, which Jones recognized:

Notwithstanding subdivision 1, a prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the Sentencing Guidelines.

Minn.Stat. 609.035, Subd. 6 [emphasis in original].  The use of the knife constitutes "force" and thus triggers this statutory exception.  It was thus permissible for the trial court to rely upon the use of the knife in finding particular cruelty.

The appellate court then goes on to uphold the departure.  In doing so, it totally ignores last month's Minnesota Supreme Court Opinion, State v. Vance, available here.  In Vance, as here, children were present in the residence but neither saw nor heard the sexual assault that occurred in a different room.  Vance held that this was not a sufficient basis for a departure.

The state conceded that Mr. Grampre could not be convicted and sentenced on both criminal sexual conduct counts that arose from the same facts.  The appellate court vacated one of those convictions and sentences.