Vulnerability Due to Child’s Age Can Support Departure in Sentence For Malicious Punishment of Child.

State v. Mohamed, Minn.Ct.App., 2/23/10.  Mr. Mohamed brought his injured four month old son to the emergency room, with three conflicting accounts of the cause of the child’s injuries, which consisted of a brain injury, an altered mental state, bleeding from the brain,etc.  The state charged him with first degree assault, but he negotiated a guilty plea to malicious punishment of a child resulting in great bodily harm.  At sentencing, Mr. Mohamed stipulated to the existence of three aggravating factors:  particular vulnerability because of age; position of authority; zone of privacy.  The trial court imposed an agreed upon upward durational departure on the basis of these factors.

On appeal, Mr. Mohamed argued that none of these factors was a legally permissible basis for a sentence departure.  The appellate court focuses on the first factor because the state concedes that the other two do not authorize a departure.  Only a person in a position of trust can commit the offense and to reliance on that factor impermissibly relies upon an element of the offense.  Mr. Mohamed and his son shared a home and so zone of privacy is also an improper basis for departure. 

The appellate court then rejects the arguments regarding the child’s age.  Infancy impairs the victim’s ability to seek help, fight back or escape harm.  Infancy is also an element of the offense but whereas an older child may be able to seek help, etc., a four year old’s vulnerability is “absolute.”  Under these facts it was not an abuse of discretion to rely upon the victim’s age to support the departure.  The appellate court also rejects Mr. Mohamed’s argument that is based on the statute’s distinction between a child who is under or over age four, again concluding that this distinction emphasizes the legislature’s belief that a child under four is more vulnerable.

Because the appellate court could not determine what sentence the trial court would impose if left to only the one valid departure factor, the appellate court remanded the case, where the trial court imposed the exact same sentence.