2011-M-172             State of Minnesota, Respondent, vs. Raymond Clyde Robideau, Appellant.

The aggravating factor of an offense committed in the presence of a child is limited to those situations where the child actually saw, heard, or otherwise witnessed some portion of the offense in question.  The phrase “otherwise witnessed” refers to other sensory perceptions of the child.   Reversed and remanded.

Appellant Raymond Clyde Robideau was found guilty by an Anoka County jury of second-degree intentional murder for the January 26, 2008, stabbing death of Sharon Chouinard.  The district court entered judgment of conviction and imposed a sentence of 460 months, which is a 93-month upward durational sentencing departure.  The court relied on the aggravating factors of particular cruelty and an offense committed in the presence of a child when it imposed the upward departure.  The court of appeals affirmed the conviction and sentence, concluding that the aggravating factor of an offense committed in the presence of a child was a valid ground for the upward departure, but that the district court’s reliance on the aggravating factor of particular cruelty was misplaced.  We granted review on the sentencing issue.  Because we conclude that D.C. (Chouinard’s child) did not see, hear, or otherwise witness the commission of Chouinard’s murder, we reverse Roubideau’s 460-month sentence and remand for resentencing consistent with this opinion.

Dietzen (Gildea, Page, Paul Anderson, Meyer, Barry Anderson, and Stras)

[MURDER]