State v. ButterfieldState v. Butterfield
OPINION
On appeal from convictions for kidnapping and first-degree criminal sexual conduct, Scott Butterfield argues that the facts do not warrant a 54R-month prison term. We affirm as modified.
FACTS
At 8:30 p.m. on April 19, 1995, appellant Scott Butterfield approached L.L. at a gas station and asked her to give him a ride to a nearby bar. L.L. agreed. As L.L. drove through a secluded park, Butterfield told her to stop the car. When L.L. stopped the car, Butterfield turned it off, grabbed the keys, and tоld L.L. that he wanted to have sex with her.
When L.L. refused, Butterfield pulled out a knife. He held it six to eight inches from L.L. and told her to get out of the car and take off her clothes. L.L. again refused, but Butterfield pushed her out the driver’s side door and crawled out after her. As L.L. continued to struggle, Butterfield threw her on the ground. "When L.L. screamed, But-terfield hit her in the face twice with something hard. L.L. saw stars and may have briefly lost consciousness. Butterfield then pinned L.L. to the ground. Because of But-terfield’s knife, strength, speed, and threatening statements, L.L. believed that her best hope of survival was to cooperate with him.
Consequently, when Butterfield again ordered L.L. to get undressed, she took off her clothes. It was so cold outside that L.L. was shaking. Butterfield forced L.L. to put his penis in her mouth, then told her to turn over onto her hands and knees. Butterfield then had vaginal and anal intercourse with her. When Butterfield lost his erection, he forced L.L. to turn over and perform oral sex again. This process was repeated twelve to fifteen times over the next two hours. But-terfield never let go of L.L. during this time.
Butterfield also told L.L. to call him “Daddy” and to answer every question with “Yes, Daddy” or “No, Daddy.” Butterfield asked L.L. if she wanted to have sex with Uncle Steve. 1 When L.L. said no, Butterfield asked her if she would have sex with Uncle Steve if Butterfield wanted her to. L.L. had to reply “If you want me to, Daddy, then I will have sex with him.” Butterfield asked similar questions about other people and L.L. had to say she wоuld have sex with them if “Daddy” wanted her to. When a car drove by during the assault, Butterfield told L.L. that if the police were in that car and she told them that he raped her, he would shoot and kill her right in front of them. L.L. did not doubt that Butterfield had a gun or that he would carry out this threat. During the assault, L.L. told Butterfield that she had to go to the bathroom. He ignored her at first, then forced her to continue performing oral sex while she urinated.
Around 11:30 p.m., Butterfield told L.L. that he wanted to go somewhere else. He allowed her to put on her sweater. Butter-field then forced L.L. to perform oral sex while he drove her car. At about midnight, Butterfield stopped at a trailer park. There, he told L.L. to put her pants back on and then forced her to enter a tráiler.
The trailer was very cold and Butterfield said it had no heat, electricity, water, or telephone. Butterfield forced L.L. to sit on a couch while he built a fire. Butterfield then told L.L. to take off her clothes and to gо over to a blanket on the floor. There, But-terfield forced L.L. to perform oral sex. After a few minutes, Butterfield told L.L. to turn over onto her hands and knees. Then, he penetrated her vaginally and anally. When Butterfield lost his erection, he got upset and told L.L. to turn around and perform oral sex again. This pattern continued for two to three hours. Butterfield also performed oral sex on L.L. and forced her to fondle his genitals. During this time, L.L. had to continue calling Butterfield “Daddy.” Butterfield also mentioned the name “Stacy.” 2
At about 3:00 a.m., Butterfield moved L.L. to a bedroom. In the bedroom, Butterfield continued the same pattern of assaulting L.L. for another two hours. Butterfield then said “I better pull out or — so there isn’t any evidence.” He then ejaculated on L.L.’s back. L.L. lay on the bed exhausted while Butterfield sat on the edge of the bed next to her. L.L. talked to Butterfield and tried to be nice to him because she thought that befriending him would give her a better chance оf surviving and escaping.
L.L. eventually fell asleep. When she awoke, it was light outside. Butterfield let L.L. go to the bathroom. There, she saw in the mirror that her face was swollen and that her eye was nearly swollen shut. L.L. was wrapped in a blanket because Butterfield would not allow her to get dressed. At one point, Butterfield went outside to try to turn on the water, but he was never far enough away from the trailer to allow L.L. to escape. Later, someone knocked on thе door and Butterfield told L.L. to go into the bedroom and to be quiet. L.L. heard voices but did not reveal herself because she was afraid the visitor was one of Butterfield’s friends, and she did not want to put herself in a situation involving two men. L.L. also thought that Butterfield soon would release her because he repeatedly told her that they would be leaving soon.
Late in the afternoon, Butterfield said he wanted to have sex again. L.L. started crying but Butterfield ignored her. He ordered L.L. to get undressed and to perform oral sex on him. He then ordered her to lie on the couch where Butterfield had vaginal intercourse with her. This assault continued for about one-half hour.
Butterfield and L.L. left the trailer at about 6:30 or 7:00 p.m. L.L. assumed But-terfield had a knife in the case he was wearing on his belt. After driving back to the park and spending about 15 to 20 minutes there looking for a beeper that Butterfield had lost the night before, L.L. followed his directions to a church parking lot. There, Butterfield said he paid at least $100 for a prostitute in Reno and wanted to give L.L. the same amount. To get rid of Butterfield, L.L. finally agreed that he could leave this money for her at the gas station where they had met. Butterfield then got out of the car and walked away.
When L.L. was sure that Butterfield was too far away to catch her, she drove home and immediately reported the assault. The doctor who examined L.L. after the assault said that she had a black еye and bruises on her right collarbone, back, and right foot. The doctor also said an x-ray showed L.L. might have suffered a broken nose but he could not be certain because the film was over-penetrated by radiation.
Butterfield was charged by complaint with two counts of kidnapping and seven counts of first-degree criminal sexual conduct. The officer who arrested Butterfield recovered a knife and a sheath from him. At trial, But-terfield admitted that he had oral, vaginal, and anal sex with L.L. in the park and the trailer and had oral sex with her in the car but claimed that these acts were consensual. Butterfield explained that L.L. had fallen and hit her head in the trailer’s bathroom. Butterfield said L.L. had lied about the assaults because he did not want to have a relationship with her and because she had spent 24 hours with him and needed a story to tell her fiancee.
The jury found Butterfield not guilty of first-degree criminal sexual conduct involving the use of а dangerous weapon in the trailer but guilty of the other eight charges. The state sought a sentencing departure with regard to duration and consecutive service. At the sentencing hearing, L.L. testified that her family had been traumatized by her ordeal and that her daughters had nightmares and could not sleep. L.L. said she had uncontrollable flashbacks of the incident, which
The district court determined that the assaults in the park, the car, and the trailer were three separate behavioral incidents. The court sentenced Butterfield to a 330-month term for his conviction for first-degrеe criminal sexual conduct involving fear of great bodily harm in the park. To support this triple durational departure, the court cited the three types of penetration, the use of a dangerous weapon, the threats to the victim, the injury to the victim, and particular cruelty consisting of forcing L.L. to remove her clothing in 45-degree weather, to lie in the grass and dirt, and to perform oral sex while she urinated.
The court then sentenced Butterfield to a 42-month consecutive term for his conviction for kidnapping.
See
Finally, the court sentenced Butterfield to a consecutive 172-month sentence for his conviction for first-degree criminal sexual conduct involving fear of great bodily harm in the trailer. The court said this was a double durational departure and a departure as to consecutive service that was justified by the length of the assault, the multiplе types of penetration repeated numerous times, and extreme mental cruelty consisting of forcing L.L. to play sexual games and to assume sexual poses. The aggregate sentence imposed was 544 months.
ISSUES
1. Did the district court err in determining the assaults in the park, the car, and the trailer were separate behavioral incidents?
2. Did the district court abuse its discretion in sentencing Butterfield?
ANALYSIS
1. Whether offenses were part of a single behavioral incident is а fact determination that will not be reversed on appeal unless clearly erroneous.
Effinger v. State,
Except as provided in * * * seetion[] 609.251 [double jeopardy exception for kidnapping] * * *, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * *.
“Whether multiple offenses arose out of a single behavior incident depends on the facts and circumstances of the particular case.”
Bookwalter,
“[T]he essential ingredient of any test is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.”
Id.
(quoting
State v. Johnson,
Butterfield argues the district court erred in imposing multiple sentences for the
But this eourt has held that a defendant’s desire to satisfy his perverse sexual desires is too broad a motivations to justify application of the single behavioral incident rule.
State v. Secrest,
Defendant moved the victim to a different place before committing the second act of penetration only because he feared that the first location was too open and that they might be noticed. His underlying motivation remained the same: to satisfy his perverse sexual needs by assaulting, penetrating, and degrading the victim in various ways.
Id. at 349.
Here, Butterfield did not move L.L. to a different place because he feared detection. Nor did any other external force prompt Butterfield to stop each assault and move L.L. to another location and assault her again. Butterfield stopped his аssaults and moved L.L. to a new location to serve his own whims. Given these facts, the district court did not clearly err in determining But-terfield had a separate and distinct criminal objective for each assault. Because the assaults in the park, the car, and the trailer had no unity of time, location, or purpose, they were separate behavioral incidents, and the district court did not err in imposing a sentence for each assault.
2. The decision to deрart from the sentencing guidelines rests within the district court’s discretion and will not be reversed on appeal absent an abuse of discretion.
State v. Givens,
A. Triple durational departure for assault in the park
Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration. But when the aggravating circumstances are severe, the doubling limit ⅜ * ⅜ does not apply.
State v. Glaraton,
[Tjhere is no clear line that marks the boundary between “aggravating circumstances” justifying a double departure and “severe aggravating circumstances” justifying a greater than double departure. In the final analysis, our decision whether there were “severe aggravating circumstances” must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.
State v. Norton,
Butterfield concedes that the facts here support a double durational departure but argues the aggravating circumstances were not severe and therefore are insufficient to support a triple durational departure. We disagree. Multiple penetrations alone can support a double durational departure.
State v. Allen,
Moreover, Butterfield acted with particular cruelty.
See
Minn.Sent.Guidelines II. D.2.b(2) (treating victim with particular cruelty is aggravating factor). He forced L.L. to remain unclothed in the dirt in 45-degree weather for over two hours.
Cf. State v. Hamilton,
Butterfield also threatened to kill L.L. and threatened her with a knife.
See State v. Mortland,
B. Kidnapping sentence
Minn.Stat. § 609.251 (1994), provides that a prosecution for or conviction of the crime of kidnapping is not a bar to conviction of or punishment for any other crime committed during the time of the kidnapping.
When a defendant is sеntenced for both kidnapping and a crime that was committed during the kidnapping, the sentences are presumed to be concurrent.
State v. Halvorson,
Butterfield argues the district court erred in sentencing him to a consecutive term for his kidnapping conviction because the confinement of L.L. was connected solely to the commission of the sexual assaults.
See State v. Crocker,
Butterfield next argues the district court abused its discretion in sentencing him to durational and consecutive service departures because severe aggrаvating circumstances were not present in the commission of the kidnapping. We agree.
In sentencing the defendant for kidnapping, the court can consider what
To justify the departure here, the district court cited the length of the kidnapping, the fact that Butterfield moved L.L. to four different locations, the psychological damage inflicted on L.L., the use of the knife, and the repeated verbal threats. These aggravating factors do not constitute the severe aggravating circumstances necessary to support departures with respect to duration and consecutive service. Accordingly, we reverse the sentence imposed for the kidnapping. It is clear that the district court intended to impose on Butterfield the maximum permissible sentence under the guidelines. A remand, therefore, is unnecessary.
State v. Pince,
C. Sentence for assault in trailer
The imposition of consecutive sentences for multiple offenses involving the same victim is a departure from the guidelines.
State v. Jones,
Butterfield argues that although the facts here support a double durational departure, they do not constitute the severe aggravating circumstances necessary to justify a departure with respect to consecutive service as well. We disagree. As previously discussed, multiple penetratiоns alone are sufficient to support the double durational departure.
Allen,
Moreover, Butterfield acted with particular cruelty toward L.L. in committing the assault in the trailer.
See
Minn.Sent.Guidelines II.D.2.b.(2) (treating victim with particular cruelty is aggravating factor). During the five-hour assault in the trailer, Butter-field forced L.L. to call him “Daddy,” to assume provocative poses, and to participate in other sexual games.
Cf. Mesich,
DECISION
The district court did not err in imposing multiple sentences for the assaults in the
Affirmed as modified.