                          This opinion will be unpublished and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
                                     A14-0127

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Javonate James McNeal,
                                      Appellant.

                                 Filed January 12, 2015
                            Affirmed in part and remanded
                                    Schellhas, Judge

                             Sherburne County District Court
                                File No. 71-CR-12-1624

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

Kathleen A. Heaney, Sherburne County Attorney, David T. Anderson, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stephanie A. Karri, Special
Assistant Public Defender, St. Paul, Minnesota; and

Bradford Colbert, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges the district court’s imposition of a sentence that is an upward

durational departure from the presumptive guidelines sentence, arguing that the district

court relied on improper or unsupported aggravating factors. For the reasons set forth

below, we affirm in part and remand.

                                        FACTS

      Appellant Javonate McNeal and Ricardo Dominguez went to the home of A.S.M.

and R.A.M. for the purpose of stealing marijuana. When A.S.M. answered the door, they

barged into the home with Dominguez brandishing a handgun and ordering the victims to

get down on the ground. McNeal bound the victims’ wrists with zip ties and remained

with R.A.M. while Dominguez took A.S.M. to the garage to search for marijuana. When

they returned from the garage, all four went upstairs where Dominguez instructed A.S.M.

to lie under a bed and McNeal allowed R.A.M. to sit. Dominguez gave McNeal the gun

and instructed him to watch A.S.M. While he did so, R.A.M. told McNeal that her

children were in the home. McNeal and Dominguez then searched the home and left with

several items, including an Xbox, a handgun, purses, and jewelry.

      Respondent State of Minnesota charged McNeal with one count of first-degree

aggravated robbery under Minn. Stat. § 609.245, subd. 1 (2012); one count of first-degree

burglary (assault) under Minn. Stat. § 609.582, subd. 1(c) (2012); one count of first-

degree burglary (dangerous weapon) under Minn. Stat. § 609.582, subd. 1(b) (2012); one

count of kidnapping under Minn. Stat. § 609.25, subd. 1(2) (2012); one count of second-


                                           2
degree assault under Minn. Stat. § 609.222, subd. 1 (2012); and one count of possession

of a firearm by an ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2012). The

state provided notice that it might offer evidence of the following aggravating sentencing

factors: (1) “[t]he Defendant has prior convictions for crimes of violence”; (2) “[t]he acts

were done in the presence of children, thereby making the victims particularly

vulnerable”; and (3) “[t]he defendant committed the offenses in a manner which was

more serious than the typical offense.”

       The parties reached a plea agreement. McNeal pleaded guilty to one count of first-

degree aggravated robbery; waived his “right to have a trial on the facts in support of an

aggravated sentence”; admitted the existence of three aggravating sentencing factors,

including “zone of privacy,” “children being present,” and “a prior crime of violence”;

and affirmed his understanding that the sentence would be 142 to 182 months, an upward

durational departure from the presumptive guidelines sentence range of 75 to 105

months. The district court sentenced McNeal to 162 months’ imprisonment.

       This appeal follows.

                                     DECISION

       At sentencing, the district court stated, “[B]ased on the facts of this case and on

the waiver of a jury to decide the aggravating factors, I am finding substantial and

compelling support for the upward departure in this case based on the aggravating

factors.” The district court did not recite the aggravating factors. McNeal argues that the

district court erred by basing the upward departure on improper aggravating factors.




                                             3
       “Departures are warranted only when substantial and compelling circumstances

are present.” State v. Jones, 745 N.W.2d 845, 848 (Minn. 2008). “Substantial and

compelling circumstances are those demonstrating that the defendant’s conduct in the

offense of conviction was significantly more or less serious than that typically involved in

the commission of the crime in question.” Id. (quotation omitted). An appellate court

determines whether “the reasons given for an upward departure are legally permissible

and factually supported in the record.” State v. Edwards, 774 N.W.2d 596, 601 (Minn.

2009). “Whether a particular reason for an upward departure is permissible is a question

of law, which is subject to a de novo standard of review.” State v. Yaritz, 791 N.W.2d

138, 143 (Minn. App. 2010) (quotation omitted), review denied (Minn. Feb. 23, 2011).

Appellate courts 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). “An upward departure will be reversed if the sentencing court’s articulated

reasons for the departure are improper or inadequate and the evidence in the record is

insufficient to justify the departure.” Id. at 586 (quotations omitted).

Presence of children, making the victims particularly vulnerable

       McNeal argues that the district court erred by relying on the presence of children,

making the victims particularly vulnerable, because the record contains “no evidence that

the children in the home witnessed the offense.” McNeal’s argument is misplaced.

       The supreme court has observed that “a durational departure may be warranted

when an offense is committed in the presence of a child in two situations.” State v.

Robideau, 796 N.W.2d 147, 151 (Minn. 2011). First, a durational departure may be


                                              4
warranted “when the defendant’s conduct is particularly outrageous because the child,

while technically not a victim of the offense, is a victim for having witnessed the

offense.” Id. Second, a durational departure may be warranted “when the victim is

particularly vulnerable due to the child’s presence in the home.” Id. In the first situation,

the aggravating factor “is limited to those situations where the child sees, hears, or

otherwise witnesses some portion of the commission of the offense in question.” Id. at

152. In the second situation, the aggravating factor applies “when the victim is

particularly vulnerable due to the child’s presence in the home.” Id. at 151 (emphasis

added); see State v. Grampre, 766 N.W.2d 347, 353 (Minn. App. 2009) (“[T]he woman’s

child was nearby at the time of the crime and compromised the woman’s ability to flee.”),

review denied (Minn. Aug. 26, 2009); State v. Hart, 477 N.W.2d 732, 740 (Minn. App.

1991) (“During the assault, [the victim] was afraid to scream or struggle because her sons

might awaken and be injured. She was afraid of leaving [defendant] alone in the home

with the children.”), review denied (Minn. Jan. 16, 1992); State v. Dalsen, 444 N.W.2d

582, 584 (Minn. App. 1989) (stating that “presence of the child in an adjoining room is

analogous to a reduced physical capacity,” that “infant’s mother was not free to extricate

herself and run because the child would be left with her assailant,” and that “child’s

presence resulted in an incapacitation that increased the parent’s vulnerability”), review

denied (Minn. Oct. 13, 1989).

       Here, the following colloquy occurred at the plea hearing:

              THE COURT: Okay. Do you know whether children were
              present in the home?



                                             5
              McNEAL: I didn’t know there was children in the home until
              [R.A.M.] said, “My kids were home.”
              THE COURT: Okay. Do you have any reason to dispute that
              they were there?
              McNEAL: No.

No one asked McNeal whether the children saw, heard, or otherwise witnessed any

portion of the robbery—the first situation in which presence of children may warrant a

durational departure. The state never suggested that it intended to offer evidence that the

children saw, heard, or otherwise witnessed any portion of the robbery. But the state

provided notice that it might offer evidence regarding the second situation in which

presence of children may warrant a durational departure—the presence of children in the

victims’ home made the victims particularly vulnerable. See Robideau, 796 N.W.2d at

151–52 (identifying two situations in which presence of child may be basis for

departure).

       McNeal testified that he and Dominguez barged into the victims’ home, ordered

them to the ground while Dominguez brandished a handgun, and put zip ties on the

victims to bind their hands. He acknowledged that the victims knew that the handgun was

a dangerous weapon and that his possession of the handgun while the victims’ hands

were zip-tied could have made them believe that he was going to use the handgun. These

facts support the district court’s reliance on presence of children in the second situation

identified in Robideau. See id. We conclude that McNeal’s testimony at the plea hearing

is sufficient to support a determination that the victims were particularly vulnerable due

to the presence of children in their home. The district court therefore did not abuse its

discretion by relying on presence of the children as an aggravating sentencing factor.


                                            6
Zone of privacy

       The supreme court has “clearly recognized the commission of a crime in the

victim’s zone of privacy as justifying a more severe punishment.” State v. Thao, 649

N.W.2d 414, 422 (Minn. 2002) (quotation omitted); see also Minn. Sent. Guidelines

2.D.2.b.(14) (2012). The “zone of privacy” includes the victim’s home and curtilage.

Thao, 649 N.W.2d at 422. McNeal argues that the district court erred by relying on the

zone-of-privacy aggravating factor because that factor is based on conduct underlying the

dismissed offense of first-degree burglary. McNeal’s argument is persuasive. “Departures

cannot be based on uncharged or dismissed offenses.” Jones, 745 N.W.2d at 849. We

therefore conclude that the district court erred by relying on zone of privacy as an

aggravating factor to support McNeal’s upward-departure sentence.

Prior crimes of violence

       During his plea colloquy, McNeal admitted that he has “a prior crime of violence”

and also admitted that he has a second-degree assault conviction from “2004 maybe” and

a felon-in-possession conviction from 2009. McNeal argues, in a footnote in his reply

brief, that because “[his] prior conviction for assault was included in his criminal history

score and was used to determine his presumptive sentence[,] it cannot also be used to

justify a departure.” But the state did not address the validity of McNeal’s prior crimes of

violence as an aggravating factor to support the court’s upward departure, and under our

rules of procedure, “[t]he reply brief must be confined to new matter raised in the brief of

the respondent.” Minn. R. Civ. App. P. 128.02, subd. 3. “Because the State did not raise

this matter in its brief, it was not proper subject matter for appellant’s reply brief and,


                                             7
therefore, is waived and stricken.” State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009); see

also McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998) (“Issues not argued in

briefs are deemed waived on appeal.” (quotation omitted)). We therefore do not address

the validity of McNeal’s prior crimes of violence as an aggravating factor.

      In conclusion, the district court did not abuse its discretion by relying on the

aggravating factor of presence of children, making the victims particularly vulnerable.

The presence of a single valid aggravating factor is sufficient to support an upward

departure. See State v. Petersen, 799 N.W.2d 653, 659−60 (Minn. App. 2011) (citing

State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985), and upholding upward-departure

sentence when “at least one of the aggravating circumstances stated by the district court

[wa]s supported by the record”), review denied (Minn. Sept. 28, 2011); State v.

Mohamed, 779 N.W.2d 93, 97 (Minn. App. 2010) (“The presence of a single aggravating

factor is sufficient to uphold an upward departure.”), review denied (Minn. May 18,

2010). But “[b]ecause the record does not allow us to determine whether the district court

would have imposed the same sentence absent its reliance on the improper aggravating

factor[]” of zone of privacy, “we remand for the district court’s determination of whether

resentencing is warranted in light of our decision.” See Mohamed, 779 N.W.2d at 100.

      Affirmed in part and remanded.




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