Aggravating Factor, “Presence of Child” Means Seeing, Hearing, Witnessing Some Portion of the Commission of the Offense.

State v. Robideau, Minn.S.Ct., 3/23/2011.  A jury convicted Mr. Robideau of stabbing his girlfriend to death.  The court imposed an aggravated sentence based, in part, on the presence of a child in the house where the stabbing occurred.  The child did not see, hear, or otherwise witness the stabbing.  The court of appeals affirmed the aggravated sentence, reasoning that Mr. Robideau knew it was highly likely that the child would discover the body, which is exactly what happened.  See here.  The supreme court reverses the court of appeals.

Previous opinions have established, generally, that the presence of a child can be an aggravating factor.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  This factor is now codified at Minn.Stat. 244.10, subd. 5a(13).  Profit said that “presence” meant two things:  the child actually witnessed the offense; and the victim is particularly vulnerable due to the child’s presence in the home.  More recently, the supreme court has said that a child who is only within “sight or sound” of the offense is not “present.”  This is because the child must see, hear or otherwise witness the offense.  State v. Vance, 765 N.W.2d 390 (Minn. 2009).

Here, the state argued that the child’s discovery of the body is “presence” enough.  Mr. Robideau countered that no, the child must be cognizant of the crime as it is being committed.  Justice Dietzen, writing for a unanimous court, sides with Mr. Robideau.  The court vacates the sentence and remands for a sentencing redo.