State v. Partlow
321 N.W.2d 886
Minn.
1982
Check Treatment

*1 Minnesota, Respondent, STATE PARTLOW, Appellant.

Richard D. of Minnesota.

Supreme Court 7, 1982. 2, 1982. Sept. Denied

Rehearing

Douglas Law Firm and Paul W. Thomson Paul, Engh, appellant. for C. St. Gen., Paul, Atty. Spannaus, Warren St. Atty., and Foley, County Tom Steven C. DeCoster, Atty., Paul, County Asst. St. respondent.

AMDAHL, Justice. Chief guilty by Defendant was found a district jury in the of criminal conduct degree, (1980) 609.342(a) first Minn.Stat. § (sexual penetration of under 13 more than years age by person 36 months older). Guidelines recom- prison mend a sentence of 41-45 severity for an this level of offense of (VIII) by with defendant’s criminal his- one presentence tory (zero). investiga- score A a sentence of 120 recommended prison. months in The trial court sentenced months, which is stat- defendant to 240 utory maximum for this offense. On conviction, peal judgment defend- (1) judgment ant that the of con- contends outright viction be reversed on the insufficiency (2) ground of evidence or that his sentence should be reduced. 1. There is no merit to defendant’s guilt contention that the evidence his was 24 legally insufficient. Defendant years old at the time of the offense and was family. friend victim’s The victim girl temporarily was a 10-month-old *2 887 regular the and we therefore aggra- defendant’s care while conclude that the left in an for defendant at his the presumptive sitter ran errand vation of sentence should request. The evidence established that doubling fall within the limitation ex- gone, pene- while the sitter was defendant pressed Evans, in State v. 311 N.W.2d 481 girl, of the vagina apparently trated the (Minn.1981), limi- the expanded rather than finger. then with a He left the residence. Stumm, propounded tations in State v. 312 later, time When the sitter returned a short (Minn.1981). 248 N.W.2d We affirm the and she found the victim unattended with departure but the modify imposed sentence her coming vagina. from blood by the trial court to 90 months. agree the 2. We with trial that We that psychiatrist, psycholo- note the exist valid aggravating factors that are rea- with working gist, professionals and other departure sons for from the evaluating and appellant the are unani- Sentencing of 41 Guidelines sentence is, the mously opinion that he and will to 45 the months. Two of factors be, danger continue to a to children because specifically applicable are the that victim proclivities. of his system Our age1 to particularly vulnerable due and permits the criminal law confinement of particular that was treated with cruel- she persons committed, for acts have they but ty- permit present does not confinement for cruelty practiced upon The the child may acts which be committed in the future. the and by is demonstrated nature extent If a appellant danger, remains considera- damage physical of the and the treatment given be his commitment could to as a the necessary repair injury. to The psychopathic personality under Minn.Stat. initially submitted the two who doctors (1980).2 526.09 § stated, pertinent part, the child in treated Affirmed as modified. that— An perineal obvious tear periureth- and a * * * KELLEY, present. ral tear were addition tear, vagina to the external the respectfully I I agreement dissent. am in through hyme- a tear which extended the with the majority that substantial and com- ring neal and it for distance beyond a of pelling circumstances exist for 1 cm. tear about The was a second de- the sentence for this depth. tear, gree through The external Guidelines, crime. Minnesota fourchette, posterior about extended (1981). 1.4 and IID I likewise in concur anus, way half to the distance for a statutory court’s conclusion that maxi- vaginal about 1 cm. cervix The for- mum imposed by the trial court nix torn appeared normal. The tissues view, was excessive in my this case. In repaired layers were in with chromic cat- expanded propounded limitations in State v. gut. (Minn.1981), 312 N.W.2d 248 However, assert, apply prosecutor doubling did not rather than the limitation reports pronounced Evans, in testimony nor did medical or State 311 N.W.2d state, any permanent (Minn.1981). injury only that there was 481 significant The dif- charged “psychopathic personality,” term While offense contains a victim as element, i.e., age years, 526.11, 13 under thus un- used in sections to 526.09 means the ordinary age any person der circumstances the victim’s existence such conditions of again upon instability, impulsiveness a could not be relied or emotional of be- havior, customary factor because the same factor would then be or lack of standards of good sentencing, judgment, appreciate twice considered in the absolute or failure to acts, vulnerability consequences 10-month-old victim of his or a combination of conditions, any justifies aggravation as to here an such render such sentence. irresponsible respect for his conduct with to thereby dangerous sexual matters and to oth- psycho- (1980) defines 526.09 § 2. Minn.Stat. persons. er pathic personality follows: as Id. case and Stumm that between this ference the assaulted Stumm see is that

can tragic more conse- admittedly much died— case. in this In both

quence than exists however, assaulted custodians adult children; small, vulnerable

very *3 on

cases, cruelty inflicted there unusual victims; assaulter caring for the indifference toward In we after the assault. approximate-

proved a durational length

ly times 3½ called for the Guidelines.1 case this

my opinion, be at least times 2½

sentence, which is less than one-half of

statutory maximum.

YETKA, Justice Kelley. of Mr. join dissent BILOTTA, Employee,

Albert J. PAUL, INC.,

LABOR POOL OF ST. Relators, al.,

et Inc., Industries, al., et

Safelite

Respondents. Minnesota.

Supreme Court of 16, 1982. The trial court sentenced the defendant to statute. permitted by (7 years), maximum