Durational Departure Supported By District Court’s Finding of Particular Cruelty

State v. Turrubiates, Jr.,  Minn.Ct.App., 5/6/2013.  Mr. Turrubiates, Jr. appeals from an upward sentencing departure.  The state alleged that Mr. Turrubiates, Jr. caused the death of T.M., age nineteen months.  There were two counts to the Complaint:

Count 1:  Unintentional murder while committing first degree assault; and
Count 2:  Unintentional murder while committing child endangerment.

The state said that there were three factors to support the sentencing departure:  T.M.’s “absolute vulnerability, T.M.’s particular vulnerability fur to her age; and Mr. Turrubiates’s particularly cruel treatment of T.M.  Mr. Turrubiates, Jr., entered a guilty plea to Count 2, and he also agreed to let the trial judge decide the departure motion.  Mr. Turrubiates, Jr., testified during the plea hearing that he was home alone with T.M., playing with her by pulling her around on a rug.  When T.M. fell off the rug, causing a rug burn on her head, Mr. Turrubiates, Jr., kicked a dresser which caused a two hundred pound television to fall off that dresser and land on T.M.’s forehead.  Mr. Turrubiates, Jr., could tell that something was seriously wrong with T.M. but did nothing about except to wait for T.M.’s mother to arrive home.  Even then, he lied to her about T.M.’s condition and tried to hide evidence of the child’s injuries.  The medical examiner provided additional evidence, essentially saying that there were more injuries than were accounted for by Mr. Turrubiates’s statements.  The trial court found all three of the factors that the state articulated and imposed an upward durational sentence of two hundred forty months.

Mr. Turrubiates, Jr., did not dispute either that T.M. was particularly vulnerable due to her age, or that she was absolutely vulnerable.  Rather, his argument was that because her age was an element of the predicate felony age could not be the basis for a departure.  The court of appeals agrees that T.M.’s age is an element of the predicate felony; and agrees that a district court may not base a sentencing departure on an element of the offense.  But that’s as far is the court is willing to go.  The court grabs hold of a malicious punishment case of a four month old, State v. Mohamed, 779 N.W.2d 93 (Minn.Ct.App., 2010), where the court had said:

The age element in the statute does not account for the particular vulnerability of [the four month -old victim], an extremely young victim who, because of his early stage of development, is incapable of perceiving danger, fleeing or shielding himself from harm, seeking help, or reporting the abuse. Indeed, [the victim]’s vulnerability is absolute. He is particularly vulnerable among the broad class of child victims who are covered by the statute.

Mr. Turrubiates, Jr., also argued that the trial court could not rely upon particular cruelty to support the departure.  The court of appeals rejects this argument, saying that a district could can consider the conduct underlying the offense of conviction in determining whether to depart.  Part of that underlying conduct included failing to get help and lying to T.M.’s doctors about the cause of her injuries.  While pointing out that the supreme court has yet to hold that failure to render medical aid, by itself, would support a departure, here, there was more than that.