Opinion
No. C2-00-2076.
Filed May 15, 2001.
Appeal from the District Court, Hennepin County, File No. AC 98-5487.
Michael A. Hatch, Minnesota Attorney General, and
Amy Klobuchar, Hennepin County Attorney; Michael Richardson, Assistant County Attorney, (for respondent)
Ann McCaughan, Assistant State Public Defender, (for appellant)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This appeal is from a district court order denying appellant's post-conviction petition challenging her sentence for first-degree aggravated robbery. Appellant argues that the district court erred in imposing a double-upward departure because there were not sufficient aggravating factors and there were mitigating factors. She characterizes her participation in the offense as being reluctant and passive. Appellant also contests the joint and several restitution order that required her to pay the full amount. We affirm.
FACTS
On October 26, 1998, appellant Christina Erickson was using cocaine with Michael Ristow and William Sjerven when the men suggested that they rob someone. They selected David Nelson from Erickson's address book. Erickson telephoned Nelson and asked him if she could move some of her belongings into his apartment. She arrived at the apartment accompanied by the two men. Sjerven used a stun gun on Nelson and Erickson participated in restraining Nelson by taping his mouth shut. She then threatened Nelson, telling him that either of the men was capable of killing him.
The three assailants then tormented Nelson for about three hours. They gathered Nelson's credit cards and demanded to know his social security number, personal identification number, and mother's maiden name. Erickson warned Nelson that he should tell the truth because Sjerven's threat to kill him was serious. She injected Nelson with cocaine, using a syringe previously used by Sjerven. She remarked to Nelson that he need not worry because Sjerven did not have AIDS, then immediately asked Sjerven, "you don't have AIDS, do you?" Erickson, Ristow, and Sjerven used Nelson's cash card to withdraw $500 from his bank account. They also removed some of his belongings from his apartment to his car. Erickson covered Nelson's head with a blanket, threatened him with a knife and made a shallow puncture in his neck with the knife. Erickson and Ristow were arrested in Nelson's car, near Nelson's apartment, with Erickson in the driver's seat.
After a bench trial, the district court found Erickson guilty of aggravated robbery under Minn. Stat. §§ 609.245, subd. 1, 609.11, 609.05 (1998); and kidnapping to facilitate the commission of a felony under Minn. Stat. §§ 609.25, subd. 1(2), 609.05 (1998). The court sentenced Erickson to 124 months on the charge of aggravated robbery, a double-upward departure. The district court subsequently denied Erickson's petition for post-conviction relief. This appeal followed.
DECISION I.
The decision to depart from the presumptive sentence under the sentencing guidelines rests within the trial court's discretion. We will not reverse absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An upward departure is within the sentencing court's discretion if aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). An upward departure from sentencing guidelines must be supported by substantial and compelling circumstances which make the crime more serious than a typical case involving the same crime. Minn. Sent. Guidelines II.D; State v. Allen, 482 N.W.2d 228, 231 (Minn.App. 1992), review denied (Minn. Apr. 13, 1992). The sentencing guidelines contain a non-exclusive list of factors that may be used to justify an upward- or downward-durational departure from a presumptive sentence. Minn. Sent. Guidelines II.D.2.
The district court based its double-durational departure upon four factors, finding that Erickson: (1) treated the victim with particular cruelty; (2) committed her crimes as part of a group of three or more persons who all actively participated in the crimes; (3) did not play a minor or passive role in the crimes; and (4) made no attempt to hinder or mitigate her crimes. The court then concluded that the durational departure was warranted "for the safety of the public."
The first two of the factors relied upon by the district court are included in the sentencing guideline's list of aggravating factors. See Minn. Sent. Guidelines II.D.2.b.(2) and (8). The third factor is the inverse of one of the mitigating factors listed in the sentencing guidelines. See Minn. Sent. Guidelines II.D.2.a.(2).
Appellant argues that the record fails to support the cited factors. In doing so, appellant essentially revisits her theory at trial that her acts during the robbery at Nelson's apartment were not cruel, but were intended to comfort and aid the victim and to protect him from greater harm from her two companions. However, the district court heard the evidence and rejected Erickson's defense theory. The evidence was clear that Erickson facilitated the selection of Nelson's address, arranged the entry to his apartment for herself and the other two, injected Nelson with cocaine, taunted Nelson about the needle, told him that her companions were capable of killing him, brandished a buck knife and stabbed him in the neck.
The district court had the benefit of hearing the testimony of all of the witnesses, the evidence amply supports the findings and the court's characterization of Erickson's actions is entitled to deference. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (determining weight and credibility of testimony is for trial court). We conclude that substantial and compelling reasons justify the district court's departure from the presumptive sentence. See State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1975) (a single factor may be sufficient to justify a double-durational departure).
II.
In a pro se supplemental brief, Erickson protests being required to pay the full amount of the joint and several restitution ordered by the district court. We find no error in the restitution order. Joint and several means "apportionable either among two or more parties or to only one or a few select members of the group." See State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 93 (Minn.App. 1992).