                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1926

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Arthur Charles Huffman,
                                       Appellant.

                                   Filed July 11, 2016
                                        Affirmed
                                    Peterson, Judge

                             Wabasha County District Court
                                File No. 79-CR-14-131

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Scott A. Hersey, Special Assistant Wabasha County Attorney, St. Paul, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal challenging the imposition of consecutive sentences for convictions

of first-degree criminal sexual conduct, domestic assault by strangulation, and terroristic
threats, appellant argues that his total sentence of 196 months and two days unfairly

exaggerates the criminality of his conduct. Because the district court did not abuse its

discretion by imposing consecutive sentences, we affirm.

                                          FACTS

       Appellant Arthur Charles Huffman was charged with eight counts of first-degree

criminal sexual conduct, one count of domestic assault by strangulation, and three counts

of terroristic threats as a result of events that occurred during one night in February 2014.

This court described the events in the opinion issued in Huffman’s initial appeal. See State

v. Huffman, No. A14-1363, 2015 WL 1757966, at *1 (Minn. App. Apr. 20, 2015), review

denied (Minn. June 30, 2015). A jury found Huffman guilty of three counts of first-degree

criminal sexual conduct (oral, vaginal, and digital penetration), one count of domestic

assault by strangulation, and one count of terroristic threats. The jury also found that

Huffman used force and coercion in the commission of each of the criminal-sexual-conduct

offenses. The district court imposed concurrent sentences of 360 months for one of the

criminal-sexual-conduct convictions, 33 months for the domestic-assault conviction, and

33 months for the terroristic-threats conviction.

       Huffman raised several arguments in the initial appeal. See id. at *2-9. Regarding

the entry of convictions, this court determined that the district court erred by entering

convictions on more than one count of first-degree criminal sexual conduct but did not err

by entering convictions on the counts of domestic assault by strangulation and terroristic

threats. Id. at *5-6. Regarding the sentence, this court determined that the district court

incorrectly calculated Huffman’s criminal-history score and erred by imposing a


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durational-departure sentence for criminal sexual conduct without prior written notice to

Huffman and without making necessary findings. Id. at *6-8. This court reversed in part

and remanded for resentencing. Id. at *5, 7-8.

       On remand, the district court imposed consecutive sentences of 172 months for the

criminal-sexual-conduct conviction and one year and one day each for the domestic-

assault-by-strangulation and terroristic-threats convictions. The district court noted that

the crimes involved “multiple forms of penetration” and “gratuitous violence” and that the

victim “was treated in a particularly degrading way.” This appeal follows.

                                      DECISION

       Appellate courts “afford the [district] court great discretion in the imposition of

sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.

Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). “[T]he decision to

impose concurrent or consecutive sentences rests within the discretion of the district court.”

State v. Williams, 862 N.W.2d 701, 703 (Minn. 2015).

       “Generally, when an offender is convicted of multiple current offenses . . .

concurrent sentencing is presumptive.” Minn. Sent. Guidelines 2.F (2012). But the

criminal code provides that

              a prosecution or conviction for committing [first- through
              fourth-degree criminal sexual conduct] with force or violence
              is not a bar to conviction of or punishment for any other crime
              committed by the defendant as part of the same conduct. If an
              offender is punished for more than one crime as authorized by
              this subdivision and the court imposes consecutive sentences
              for the crimes, the consecutive sentences are not a departure
              from the Sentencing Guidelines.



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Minn. Stat. § 609.035, subd. 6 (2012). The imposition of consecutive sentences in

accordance with section 609.035, subdivision 6, is “always permissive and there is no

dispositional departure if the sentences are executed.”            Minn. Sent. Guidelines

2.F.2.a.(2)(iii).

       Huffman had a criminal-history score of zero for the purpose of sentencing him on

his criminal-sexual-conduct conviction, and he received a presumptive guidelines sentence

of 172 months for that conviction. See Minn. Sent. Guidelines 4.B (2012) (providing for

presumptive commitment and discretionary range between 144 and 172 months for first-

degree criminal sexual conduct with zero criminal-history score); see also Minn. Sent.

Guidelines cmt. 2.C.02 (2012) (“Any sentence length given that is within the range of

sentence length shown in the appropriate cell on the applicable Grid is not a departure from

the Guidelines . . . .”).

       “For each felony offense sentenced consecutively to another felony offense(s), the

court must use a Criminal History Score of 0 . . . to determine the presumptive duration. A

consecutive sentence at any other duration is a departure.” Minn. Sent. Guidelines 2.F.2.a.

For an offender with a criminal-history score of zero, the presumptive sentence for

domestic assault by strangulation and for terroristic threats is a stayed sentence of one year

and one day. See Minn. Sent. Guidelines 4.A (2012) (providing for presumptive stayed

sentence of one year and one day for crime of severity level of four with zero criminal-

history score); Minn. Sent. Guidelines 5.A (2012) (assigning severity level of four to

crimes of domestic assault by strangulation and terroristic threats). Huffman received

sentences of the presumptive duration for each of these crimes, and, under the sentencing


                                              4
guidelines, the district court’s execution of the sentences was not a dispositional departure.

See Minn. Sent. Guidelines 2.F.2.a.(2)(iii).

       Huffman acknowledges that he received presumptive guidelines sentences and that

consecutive sentencing is permissive in this case. But he argues that the resulting sentence

unfairly exaggerates the criminality of his conduct. “The district court abuses its discretion

in imposing consecutive sentences when the resulting sentence unfairly exaggerates the

criminality of the defendant’s conduct.” State v. Vang, 774 N.W.2d 566, 584 (Minn. 2009).

“In determining whether a sentence has exaggerated the criminality of a defendant’s

conduct, [an appellate court] will take guidance from past sentences imposed on similarly

situated defendants.” Id.

       The district court identified the multiple forms of penetration and Huffman’s

treatment of the victim as factors relevant to sentencing. Appellate courts have affirmed

significant upward durational departures in criminal-sexual-conduct cases involving

multiple forms of penetration and particularly cruel treatment of the victim. See, e.g., State

v. Vance, 765 N.W.2d 390, 393, 395-96 (Minn. 2009) (stating that “[w]e have previously

concluded that a double upward durational departure is appropriate on finding particular

cruelty [to the victim] alone” and affirming 288-month sentence, a departure from

presumptive 144-month sentence, for first-degree criminal sexual conduct based on factors

of particular cruelty to victim and multiple forms of penetration); State v. Adell, 755

N.W.2d 767, 770, 775-76 (Minn. App. 2008) (stating that “multiple penetrations alone will

generally justify a double . . . upward durational departure” and affirming 288-month

sentence, a departure from presumptive 144-month sentence, for first-degree criminal


                                               5
sexual conduct based on factors of physical injury to victim and multiple forms of

penetration (quotation omitted)), review denied (Minn. Nov. 25, 2008).              Huffman

committed multiple forms of penetration. He also slapped the victim repeatedly, pulled

her hair, spit in her face, hit her, bit her face, punched her in the head and ribs, strangled

her, and threatened her. See Huffman, 2015 WL 1757966, at *1. The victim testified that

she could not breathe while Huffman was strangling her and that she “thought [she] was

going to die.” Based on a comparison of Huffman’s total sentence of 196 months and two

days to the sentences imposed on similarly situated defendants, the imposition of

consecutive sentences does not unfairly exaggerate the criminality of Huffman’s conduct.

       Huffman correctly points out that consecutive sentences are commonly imposed in

cases that involve multiple victims. See State v. Ali, 855 N.W.2d 235, 259 (Minn. 2014)

(“In cases with multiple victims, consecutive sentences are rarely, if ever, disproportionate

to the offense.”).   But the statutes and sentencing guidelines also explicitly permit

consecutive sentencing when first-degree criminal sexual conduct was committed with

force or violence as part of the same course of conduct as other crimes. See Minn. Stat.

§ 609.035, subd. 6; Minn. Sent. Guidelines 2.F.2.a.(2)(iii). The district court did not abuse

its discretion by imposing consecutive sentences.

       Affirmed.




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