                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1992

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              President Pimping Austin,
                                     Appellant.

                               Filed October 27, 2014
                                      Affirmed
                                  Schellhas, Judge

                          Washington County District Court
                             File No. 82-CR-12-5030

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

Pete Orput, Washington County Attorney, Robin M. Wolpert, Assistant County Attorney,
Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant argues that the district court abused its discretion by admitting

relationship evidence and imposing a greater-than-double upward departure. We affirm.
                                           FACTS

       Appellant President Austin occasionally lived in K.B.’s home in Oakdale with

K.B., her daughter, S., age 41 months, and son, P.A., age 22 months. Austin is the father

of P.A., who was born January 3, 2011. On or around November 30, 2012, P.A. “pooped

on himself,” and Austin took P.A. into the bathroom. K.B. then heard P.A. cry like she

had not heard him cry before, saying, “No daddy. Stop daddy.” Eventually, Austin

brought P.A. to K.B.; told her that P.A.’s penis was swollen; and showed her whip marks

on P.A.’s legs, buttocks, and penis. P.A.’s legs were bloody and the marks remained on

them for at least three months. Partly because K.B. was afraid that Austin would beat her,

K.B. did not call the police about P.A.’s injuries, nor did she seek medical attention for

P.A.

       On December 4, 2012, Austin’s mother picked up S. and P.A. to care for them and

discovered that P.A.’s body was covered with whip marks and open scabs and his

genitals were swollen. Austin’s mother took the children to a hospital and then the

Midwest Children’s Resource Center. On December 6, a nurse found P.A.’s injuries to be

“consistent with a clinical diagnosis of child physical abuse,” finding that his whip marks

were too many too count; “extend[ed] from his buttocks and pubic symphysis extending

down his front and back of his legs”; and “[were] consistent with being brutally hit with a

cord, such that the edges of the cord dug into his skin.” Dr. Caroline Levitt also observed

P.A.’s injuries or photographs, depicting whip marks all over P.A.’s buttocks and the

back of his thighs, injuries to his testicles, and a whip mark across the tip of his penis.




                                               2
         On December 7, 2012, Austin kicked K.B. and hit her on her back and head. K.B.

reported the assault to Austin’s mother, who reported it to the Oakdale Police

Department. When police investigated, K.B. reported that Austin had hit P.A. with an

audio-visual cord. The police seized the cord from the bathroom floor and arrested Austin

nearby the Oakdale home.

         Respondent State of Minnesota charged Austin with felony malicious punishment

of P.A., a child under the age of four, in violation of Minn. Stat. § 609.377, subds. 1, 4

(2012), felony domestic assault of K.B., and violation of an order for protection (OFP).1

The state noticed its intent to introduce relationship evidence and to seek an upward

sentencing departure based on P.A.’s particular vulnerability and Austin’s particular

cruelty. Austin waived his right to have a jury determine his guilt and the facts underlying

the aggravating factors. He also stipulated that he had a November 2010 conviction of

felony domestic assault, an August 2011 conviction of domestic assault by strangulation,

and a March 2012 conviction of violation of a no-contact order. The district court found

Austin guilty of felony malicious punishment of P.A. and domestic assault of K.B.,

concluded that P.A. was particularly vulnerable and that Austin committed the malicious

punishment with particular cruelty, and sentenced Austin to consecutive sentences of 60

months for felony malicious punishment and 12 months and 1 day for felony domestic

assault. The 60-month sentence is 4 months greater than double the presumptive length.

         This appeal follows.



1
    The state dismissed the OFP-violation charge before trial.

                                               3
                                     DECISION

Relationship Evidence

       K.B. testified about her relationship with Austin before his assault of her on

December 7, 2012, including that Austin “has anger issues”; called her “[b]-tch, ho, [and]

slut”; beat her; and was charged with “beating” her in June 2010. Austin objected to

K.B.’s testimony about the June 2010 beating as irrelevant, and the district court

overruled the objection. K.B. thereafter explained that, during the June 2010 incident, she

was pregnant with P.A. and Austin beat her for seven hours. Austin argues for the first

time on appeal that the district court abused its discretion by admitting the relationship

evidence under Minn. Stat. § 634.20 (2012), because the evidence was more prejudicial

than probative. We therefore review the admission of the evidence for plain error. See

Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011) (stating that failure to object to

trial error generally waives right to review of that error but noting that Minn. R. Crim. P.

31.02 permits appellate courts to review unobjected-to trial errors for plain error); see

also State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983) (declining to address district

court’s allowance of testimony in part because defense counsel did not state precise

objection on record).

       “Under the plain-error test, an appellant must show that there was (1) an error;

(2) that is plain; and (3) the error must affect substantial rights.” State v. Vang, 847

N.W.2d 248, 261 (Minn. 2014). Under the first step of that test, whether the district court

erred turns on whether it abused its discretion. See State v. Hayes, 826 N.W.2d 799, 808

(Minn. 2013) (declining to “consider the remaining prongs of the plain-error test” after


                                             4
concluding that “the district court did not abuse its discretion in admitting the challenged

testimony”); State v. Jenkins, 782 N.W.2d 211, 230–31 (Minn. 2010) (concluding during

plain-error review that “the district court did not abuse its discretion or commit any error

when it granted the State’s motion to exclude the evidence on relevance grounds”); see

also State v. Goelz, 743 N.W.2d 249, 254 (Minn. 2007) (“Rulings on evidentiary matters

rest within the sound discretion of the trial court, and [an appellate court] will not reverse

such evidentiary rulings absent a clear abuse of discretion.” (quotation omitted)).

       Minnesota Statutes section 634.20 provides that

              [e]vidence of similar conduct by the accused against the
              victim of domestic abuse . . . is admissible unless the
              probative value is substantially outweighed by the danger of
              unfair prejudice, confusion of the issue, or misleading the
              jury, or by considerations of undue delay, waste of time, or
              needless presentation of cumulative evidence.

Unlike “traditional ‘collateral’ Spreigl evidence, which concerns ‘an unrelated crime

against another person,’ not the present victim, . . . [relationship] ‘evidence . . .

illuminates the history of the relationship between an accused and a victim.’” State v.

Rossberg, 851 N.W.2d 609, 615 (Minn. 2014) (quoting State v. McCoy, 682 N.W.2d 153,

159, 161 (Minn. 2004)). Relationship evidence is relevant because of that illumination

and because it “may also help prove motive or assist the jury in assessing witness

credibility.” State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).

       Here, the relationship evidence was probative because it was “evidence of past

acts of violence committed by the same defendant against the same victim.” State v. Bell,

719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted). We reject Austin’s argument



                                              5
that the evidence was unfairly prejudicial. “[U]nfair prejudice is evidence that persuades

by illegitimate means, giving one party an unfair advantage.” Id. (quotation omitted). The

state notified Austin in advance of trial that it intended to introduce relationship evidence.

The state did not introduce the relationship evidence to persuade by illegitimate means.

We conclude that the district court did not abuse its discretion by admitting the

relationship evidence and therefore decline to consider the remaining prongs of the plain-

error test.

Sentence Greater than Double Upward Departure

       Felony malicious punishment of a child under the age of four has a severity level

of four. Minn. Sent. Guidelines 5.A (2012). Austin’s criminal-history score was four. The

presumptive sentencing range for Austin’s conviction of felony malicious punishment

under Minnesota Statutes section 609.377, subdivision 4, is 21−28 months. Minn. Sent.

Guidelines 4.A (2012). The maximum sentence for felony malicious punishment of a

child under the age of four is five years. Minn. Stat. § 609.377, subd. 4 (2012). Based on

P.A.’s particular vulnerability and Austin’s particular cruelty, the district court imposed a

60-month sentence, which is 4 months greater than a double upward durational departure

from the high range of the presumptive sentence. Austin argues that the court abused its

discretion.

       We generally review an upward departure from the presumptive guidelines

sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585–86 (Minn.

2011). We review de novo “whether a valid departure ground exists, relying on the

factual findings that support the decision,” State v. Weaver, 796 N.W.2d 561, 567 (Minn.


                                              6
App. 2011), and “whether the valid departure reasons are severe,” Dillon v. State, 781

N.W.2d 588, 598 (Minn. App. 2010), review denied (Minn. July 20, 2010).

“[A]ggravating factors [are] reasons explaining why the facts of the case provide the

district court a substantial and compelling basis to impose a sentence outside the range on

the grid.” State v. Rourke, 773 N.W.2d 913, 920 (Minn. 2009) (emphasis omitted).

Generally, departures require “[s]ubstantial and compelling circumstances” that

“demonstrat[e] that the defendant’s conduct in the offense . . . was significantly more or

less serious than that typically involved in the commission of the crime in question.”

Tucker, 799 N.W.2d at 586 (quotations omitted). “Only in cases of severe aggravating

circumstances may the district court impose a greater-than-double departure from the

presumptive sentence . . . .” State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005)

(quotation omitted).

       Aggravating Factors

       Austin argues that the district court’s order and statements at the sentencing

hearing show that the court based its sentencing departure not only on P.A.’s particular

vulnerability and Austin’s particular cruelty but also on (1) Austin’s restraint of P.A.,

(2) Austin’s lack of remorse, (3) Austin’s escalating and ongoing violence shown by his

criminal history, (4) Austin’s position of trust as to P.A., (5) Austin’s relationship as

father to P.A., and (6) P.A.’s expectation of privacy where the offense was committed.

We conclude that the court relied on those facts only as support for the two aggravating

factors that it identified—P.A.’s particular vulnerability and Austin’s particular cruelty.

Although the court did mention additional aggravating factors at the sentencing hearing,


                                            7
including Austin’s position of trust and P.A.’s expectation of privacy, factors not noticed

by the state, nothing in the record suggests that the court was modifying its July 11 order

to add the departure grounds not noticed by the state. To the contrary, the court stated that

it was imposing the upward departure “[f]or the reasons enumerated and stated in [its]

previous orders and analysis.”

       Particular Vulnerability

       Although the court generally may depart based on the victim’s “particular[]

vulnerab[ility] due to age, infirmity, or reduced physical or mental capacity,” Minn. Sent.

Guidelines 2.D.3.b.(1) (2012), it may not depart based on “facts necessary to prove

elements of the offense being sentenced” or “facts that, while not necessary to satisfy the

elements of the offense in question, were nonetheless contemplated by the legislature

when it set the punishment for the offense being sentenced,” State v. Edwards, 774

N.W.2d 596, 602 (Minn. 2009). And the court must not base a particular-vulnerability

departure on “the victim’s vulnerability . . . as to age . . . where th[e] fact[] [was] already

taken into account by the legislature in determining the degree of seriousness of the

offense.” Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003).

       Malicious punishment of a child that “results in less than substantial bodily harm”

is ordinarily a gross misdemeanor. Minn. Stat. § 609.377, subds. 1, 2 (2012). But, for

children under the age of four, the legislature enhanced the seriousness of malicious

punishment by providing that the offense is a felony when the punishment results in

“bodily harm to the head, eyes, neck, or . . . multiple bruises to the body.” Id., subds. 1, 4.

We recognize that, even though age is an element of the offense, a child in infancy may


                                              8
be particularly vulnerable due to age. See State v. Turrubiates, 830 N.W.2d 173, 175,

177–80 (Minn. App. 2013) (19-month-old victim of felony murder), review denied

(Minn. July 16, 2013); State v. Mohamed, 779 N.W.2d 93, 97–99 (Minn. App. 2010) (4-

month-old victim of malicious punishment in case charged under Minn. Stat. § 609.377,

subds. 1, 6 (2006)), review denied (Minn. May 18, 2010). In Mohamed, this court noted

that the child was “particularly vulnerable among the broad class of child victims who are

covered by the statute[,i.e., all children under the age of 18].” 779 N.W.2d at 98. But this

court also stated that “the legislature has recognized in subdivision 4 the particular

vulnerability of children under age four by criminalizing punishment resulting in harm

that does not rise to the level of the ‘great bodily harm’ required by subdivision 6.” Id. at

98 (emphasis added).

       In this case, we conclude that, because P.A.’s vulnerability was due to his age,

particular vulnerability was an impermissible aggravating factor on which to base a

sentencing departure for malicious punishment under section 609.377, subdivision 4. The

district court therefore impermissibly relied on the aggravating factor of P.A.’s particular

vulnerability to support an upward sentencing departure.

       Particular Cruelty

       Generally, the court may depart based on the aggravating factor of the offender’s

treatment of the victim “with particular cruelty for which the . . . offender should be held

responsible.” Minn. Sent. Guidelines 2.D.3.b.(2) (2012). Austin maintains that that factor

was unavailable for departure for this offense. We disagree. For departure purposes,

conduct is “[p]articular[ly]” cruel when it “involves the gratuitous infliction of pain and


                                             9
cruelty of a kind not usually associated with the commission of the offense in question.”

Tucker, 799 N.W.2d at 586 (emphasis added) (quotation omitted).

      Austin argues that the district court improperly relied on the existence of

numerous marks on P.A.’s body, arguing that “this factor was already accounted for by

the legislature” when it criminalized “infliction of ‘multiple bruises,’ on a child under

four, when a child’s head, eyes or neck are not affected” (quoting Minn. Stat. § 609.377,

subd. 4). We disagree. P.A.’s injuries did not consist only of multiple bruises; they

consisted of marks deep enough to cause bleeding and scabbing resulting in some

permanent scarring. Bloody wounds and permanent scarring are more serious than the

bodily harm or bruising required to secure Austin’s conviction. See Minn. Stat. § 609.02,

subd. 7 (2012) (defining bodily harm as “physical pain or injury, illness, or any

impairment of physical condition”); State v. McDaniel, 534 N.W.2d 290, 293 (Minn.

App. 1995) (concluding that two-thirds-inch scar on chest and six-centimeter scar on

neck were great bodily harm), review denied (Minn. Sept. 20, 1995).

      Austin argues that the district court could not rely on permanent scarring because

it is a type of great bodily harm that would support a conviction of malicious punishment

under an uncharged provision, Minn. Stat. § 609.377, subd. 6 (2012). See Minn. Stat.

§ 609.02, subd. 8 (2012) (defining great bodily harm as “bodily injury . . . which causes

serious permanent disfigurement”). Facts proving the defendant’s guilt of an uncharged

offense “cannot be relied upon as a ground for departure” because they “only support[]

defendant’s guilt of some other offense.” Edwards, 774 N.W.2d at 602 (quotation

omitted). But “it is generally proper for the court to consider the conduct underlying the


                                           10
offense of which the defendant is convicted.” Shattuck, 704 N.W.2d at 140. Because facts

proving permanent scarring are part of the course of conduct underlying Austin’s

malicious punishment, they support a conclusion that Austin treated P.A. with particular

cruelty. See State v. Herrmann, 479 N.W.2d 724, 730 (Minn. App. 1992) (“When the

crime charged requires ‘injury’ alone, then the sentencing court can depart from the

presumptive sentence when the victim’s injuries are serious.”), review denied (Minn.

Mar. 19, 1992).

       Austin argues that the district court erred by relying on his lack of remorse to

support its particular-cruelty conclusion. We disagree. “As a general rule, a defendant’s

remorse bears only on a decision whether or not to depart dispositionally, not on a

decision to depart durationally . . . .” State v. Yang, 774 N.W.2d 539, 564 (Minn. 2009)

(quotation omitted). But “there may be cases in which the defendant’s lack of remorse

could relate back and be considered as evidence bearing on a determination of the cruelty

or seriousness of the conduct on which the conviction was based.” State v. McGee, 347

N.W.2d 802, 806 n.1 (Minn. 1984); see, e.g., State v. Chaklos, 528 N.W.2d 225, 228

(Minn. 1995) (“[T]he sentencing court may take into consideration the offense-related

conduct of trying to pin the blame for the offense on someone else.”). This is such a case.

At no time has Austin expressed remorse or accepted responsibility for his actions. His

failure to do so supports a conclusion that Austin treated P.A. with particular cruelty. See

Dillon, 781 N.W.2d at 600 (“Dillon’s lack of remorse and refusal to accept responsibility

for K.P.’s life-threatening injuries combine to constitute an aggravating factor on which

the district court could base a decision to depart upward from the guidelines sentence.”).


                                            11
       Austin argues that the district court erred by relying on his criminal history.

“Generally the sentencing court cannot rely on a defendant’s criminal history as a ground

for departure” because “[t]he Sentencing Guidelines take one’s history into account in

determining whether or not one has a criminal history score and, if so, what the score

should be.” State v. Magnan, 328 N.W.2d 147, 149–50 (Minn. 1983). Here,

notwithstanding the fact that the court mentioned Austin’s criminal-history score, we

disagree that the record suggests that the district court departed upward based on Austin’s

criminal history score. We conclude that the district court properly relied on Austin’s

particular cruelty as an aggravating factor that warrants the greater-than-double upward

departure in this case.

       “The presence of a single aggravating factor is sufficient to uphold an upward

departure.” Weaver, 796 N.W.2d at 571 (quotation omitted). We note that, in Mohamed,

we remanded to allow the district court to determine whether the same or a different

sentence should be imposed based on a single aggravating factor, because we could not

“discern the weight given to the invalid [aggravating] factors as compared to the valid

factor.” 779 N.W.2d at 100. Here, although the district court relied on one valid

aggravating factor, particular cruelty, and one invalid factor, particular vulnerability, we

decline to remand because the court’s order and statements at sentencing, as well as the

factual record, leave us with no doubt that the court would have imposed the greater-

than-double upward departure had it relied on only Austin’s severe particular cruelty to

P.A. Cf. State v. Vance, 765 N.W.2d 390, 395 (Minn. 2009) (“[A] double upward

durational departure is appropriate on finding particular cruelty alone.” (citing State v.


                                            12
Martinez, 319 N.W.2d 699, 701 (Minn. 1982) (“We need not decide whether the facts

cited by the state made the victim in this case ‘particularly vulnerable’ because it is clear

to us that the defendant in this case committed the offense in a ‘particularly cruel’

way.”))). The fact that the departure was only four months greater than a double

departure supports our conclusion. Cf. State v. Hodges, 784 N.W.2d 827, 834 (Minn.

2009) (“[W]e are satisfied that the aggravating factors found by the district court are

sufficiently severe to justify the . . . slightly greater-than-double-durational sentence.”).

       Severity

       “[T]o impose a greater-than-double-durational sentence, there must be severe

aggravating factors.” State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009). “There remains

‘no easy-to-apply test’ of severity,” and “the inquiry is unstructured.” Dillon, 781

N.W.2d at 597. “A district court may evaluate the degree of cruelty inflicted on a child

victim based on ‘the nature and extent of the physical damage . . . .’” Turrubiates, 830

N.W.2d at 180 (quoting State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982)). “[W]e

attach particular significance to the fact that permanent injury was inflicted.” State v. Van

Gorden, 326 N.W.2d 633, 635 (Minn. 1982). “In the final analysis, determining whether

severe aggravating circumstances are present must be based on our collective, collegial

experience in reviewing a large number of criminal appeals from all the judicial

districts.” Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996) (quotation omitted).

Based on the record evidence, our review of malicious-punishment caselaw, and our

collective, collegial experience, we are persuaded that Austin’s particular cruelty to P.A.

was severe.


                                              13
       Here, the district court did not address explicitly whether Austin’s particular

cruelty was severe. But, based on Austin’s atypical and particularly egregious malicious

punishment of P.A., we have no reasonable doubt that the court believed that Austin’s

particular cruelty was severe. See Stanke, 764 N.W.2d at 828–29 (declining to remand

when “atypical and particularly egregious” conduct left supreme court with no reasonable

doubt that district court would find at least one aggravating factor to be severe); see also

Dillon, 781 N.W.2d at 597 (“It is clear that the supreme court continues to review district

court determinations of severity without affording great deference.”); Weaver, 796

N.W.2d at 572–73 (“[W]hen the district court’s stated departure reasons are improper or

inadequate, an appellate court may independently examine the record to determine if

there is sufficient evidence to justify departure, so long as the court does not engage in

impermissible fact-finding.”).

       Affirmed.




                                            14
