Anoka County District Court File No. 02-CR-11-3451.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, Minnesota (for respondent).
David R. Lundgren, Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, Minnesota (for appellant).
Considered and decided by Cleary, Presiding Judge; Kalitowski, Judge; and Hooten, Judge.
After entering an Alford plea for unintentional second-degree felony murder and receiving a sentence within the presumptive sentencing guidelines, appellant appeals, arguing that substantial and compelling circumstances supported a downward durational and dispositional departure from the presumptive sentence. Because the district court did not abuse its discretion by imposing a presumptive sentence, we affirm.
On May 11, 2011, appellant Joshua Allen VanHoutan was at the home he shared with his fiancée, their children, and his fiancée's father. That morning, at approximately 3:30 a.m., appellant's fiancée prepared to go to work while appellant gave a bottle to A.V., their five-month-old daughter. By the time appellant's fiancée left for work at around 4:00 a.m., A.V. had been fed and was placed back into her bed. At approximately 9:00 a.m., appellant telephoned his fiancée and advised her that something was wrong with A.V. He called again at approximately 10:00 a.m. and informed her that A.V. would not wake up and "her arms were frail." Shortly thereafter, his fiancée came home to take A.V. to Mercy Hospital. A.V. was admitted to Mercy Hospital at 12:30 p.m. and was diagnosed with "retinal hemorrhaging and bi-hemispheric subarachnoid hemorrhages." A.V. had been in cardiac arrest, but was stabilized and eventually transported to Minneapolis Children's Hospital. At Children's Hospital, surgery was performed to alleviate the pressure in her skull, but her doctors advised that A.V.'s injuries could be fatal.
Just after 1:00 p.m., the Coon Rapids police were dispatched to Mercy Hospital on a report of a possible "shaken baby" case. Appellant told one of the police officers that, after his fiancée left for work, A.V. was crying "a little bit, " which he believed meant that she was still tired, so he put her back down to sleep. Appellant told this officer that he checked on A.V. at 8:45 a.m. because she slept longer than normal, and found that she would only open her eyes a little, that she was somewhat non-responsive, and that her arms were limp. He then telephoned his fiancée about these symptoms.
Appellant also spoke to a police detective, explaining that when A.V. woke up between 6:30 and 6:45 a.m., he brought her into the living room to play. Appellant initially told the detective that he had not harmed A.V., though he stated that she is fussier than her twin and that she is difficult to calm down when she is upset. However, when the detective advised appellant that it was important for the doctors to understand the mechanism of injury in order to help her, appellant responded that he shook A.V. twice because she would not calm down. According to the complaint, "using a forensic interview doll, [appellant] demonstrated shaking [A.V.], causing her head to forcibly jerk back and forth." Appellant indicated that A.V. quieted down, and that he laid her down until 10:30 or 11:00 a.m. Appellant was taken into custody after this statement and, in a post-Miranda statement, he stated that he first shook A.V. at about 6:30 a.m., and noticed that she was limp and had difficulty keeping her eyes open around 8:30 a.m.
As a result of her injuries, A.V. developed elevated intracranial pressure and seizure activity, and her neurologic status worsened during her hospital stay despite "aggressive medical intervention." A.V. had no response to pain, so life support was withdrawn on May 15, 2011, and she died. The next day, appellant was charged with unintentional second-degree felony murder.
Appellant, while maintaining that he was innocent of the charge, entered a plea to the charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). In exchange for his Alford plea, the state withdrew its motion for an upward durational departure and indicated that appellant could seek a downward departure from the presumptive sentence. In making his plea, appellant agreed that there was a substantial likelihood that a jury would find him guilty at a trial. Following extensive questioning by his attorney, the district court told appellant that it would not be hearing arguments about guilt or innocence once the plea was accepted, although, consistent with the plea agreement, it would hear appellant's arguments for a departure from the sentencing guidelines' presumptive sentence. As part of his plea, appellant denied that he "picked [A.V.] up and  shook her, " instead stating that he "played with her" and did not shake her. The prosecutor offered an extensive recitation of the facts the state would offer at trial, and the district court made several inquiries of appellant, after which it accepted appellant's Alford plea.
In conjunction with accepting the plea, and at appellant's request, the district court scheduled an evidentiary hearing and separate sentencing hearing. At the evidentiary hearing, appellant offered the testimony of a forensic pathologist retained by appellant to explain the mechanism of A.V.'s injuries. The forensic pathologist testified that the "cause of [A.V.'s] death was expansion of a chronic subdural hematoma" and that "[s]he had no evidence for any acute injury at the time of her collapse." Specifically, A.V. had no bruises, broken bones, or scalp injuries, and the hematoma in her skull was thought to be chronic by the treating radiologist and neurosurgeon. The forensic pathologist testified that, to the extent that this injury resulted from some sort of impact trauma, the "initial injury occurred at least a month or longer before her death." Finally, the forensic pathologist ...