Departure in Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.S.Ct., 9/30/2015.  A jury convicted Mr. Meyers of assault in the first degree for the stabbing injuries to the victim.  The trial court imposed an aggravated sentence based on this injury and upon Mr. Meyer's previous conviction in which that victim had been injured. Section II.D.2.b(3) says that a valid ground for departure exists when:

[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

The court of appeals upheld this sentence departure.  Read about that here.  Chief Justice Gildea, Justice Dietzen not participating, upholds the court of appeals although on more simplified reasoning.  The chief says that because the requirement for the previous conviction in which the victim was injured is not an element of the current offense, there is no violation of the rule that says that a departure can't be based on an element of the offense. State v. Osborne, 715 N.W.2d 436 (Minn. 2006).   Put another way, a departure can be based on an element of the offense so long as the legislature has tacked on another requirement to authorize the departure.  So, while the quantity of drugs alone can't support a departure, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the quantity of drugs plus a finding that a defendant's past includes whatever the legislature chooses to use as an enhancer, does support a departure.