This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jodie Ray Clews,
Filed May 15, 2001
Otter Tail County District Court
File No. K5-99-2046
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
David J. Hauser, Otter Tail County Attorney, County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537; and
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the presumptive sentence imposed on him for criminal sexual conduct in the first degree. Appellant argues that the district court erred in denying his motion for a dispositional departure by applying an incorrect legal standard that focused on the seriousness of his offense instead of his amenability to treatment. We affirm.
On August 23, 1999, the Otter Tail County Department of Social Services received a report that two sisters, aged seven and eight and sharing the initials M.C., had been sexually abused by appellant Jodie Ray Clews while he was temporarily staying in their family home during the months of October through December 1998. Although seven-year-old M.C. did not repeat her account of the sexual abuse to the authorities, eight-year-old M.C. reported that appellant “had sex with her.” Appellant was charged by complaint with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a) (1998) (sexual penetration or sexual contact by a person at least 36 months older than victim under age 13). According to the complaint, M.C. stated that appellant “came into her room while she was lying in her bed covered up and that he had leaned over her and put his penis by her privates.” While appellant’s account of events differed from eight-year-old M.C.’s version, he admitted putting “his penis in her mouth.”
On May 30, 2000, appellant pleaded guilty to criminal sexual conduct in the first degree. There was no plea agreement. At the time he entered his guilty plea, appellant was questioned about the offense. His answers were consistent with his earlier admission to the police. The district court accepted his responses as a valid factual basis for his guilty plea. Appellant moved for a downward dispositional departure. On August 28, 2000, a sentencing hearing was held. The forensic psychologist who performed a sexual offender evaluation of appellant testified that appellant was amenable to outpatient sex offender treatment.
The district court denied appellant’s motion for a downward dispositional departure. The district court sentenced him to an executed sentence of 86 months, a $1,000 fine, and a five-year conditional release period following his imprisonment; that disposition incorporated the presumptive sentence for this level VIII crime committed by an individual with a criminal history score of zero. See Minn. Sent. Guidelines IV, V (1998). This appeal followed.
D E C I S I O N
[I]t would be a rare case which would warrant reversal of the refusal to depart. * * * [T]he Guidelines state that when substantial and compelling circumstances are present, the judge “may” depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (citation omitted). “This court has held that the presumptive sentence should be imposed, unless the circumstances of the crime indicate that a departure is warranted.” State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (citation omitted). “[T]he decision to depart is one for the trial court,” and “[t]his court is loathe to overturn the exercise of that discretion without clear evidence of its abuse.” Id. (citations omitted).
Appellant argues that the district court erred in denying his motion for a dispositional departure by applying an incorrect legal standard that focused on the seriousness of his offense instead of his amenability to treatment, and that this error “requires a remand for reconsideration * * * and resentencing * * * .” Appellant’s reliance on State v. Abeyta, 328 N.W.2d 443, 445 (Minn. 1983), is misplaced. In Abeyta, the district court “assumed that it had no choice but to sentence defendant to the mandatory minimum term,” without considering “whether or not there were mitigating circumstances present that would justify placing defendant on probation.” Id. (remanded for resentencing hearing at which parties could present evidence and arguments on propriety of mandatory minimum sentence). In the instant case, the district court heard testimony from the forensic psychologist who had evaluated appellant and arguments from both parties on the propriety of imposing the presumptive sentence. The district court made a considered decision to impose the presumptive sentence on appellant.
Appellant also relies on State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). Curtiss, however, is distinguishable. Curtiss was sentenced to 33 months in prison after pleading guilty to burglary for entering a breezeway attached to a house and removing a case of beer. Id. at 263. In Curtiss, we stated that “legitimate” and “significant” “reasons for departure did exist” and that the district court “erred in putting [them] aside * * * rather than considering them alongside valid reasons for non-departure.” Id. at 263-64 (quotation omitted). We held that because “the exercise of discretion ha[d] not occurred,” the “matter must be remanded for a hearing on sentencing and for reconsideration of the departure question.” Id. at 264. Finally, the Curtiss court stated that the defendant’s offense was “barely within the scope of the serious charge of burglary in the first degree.” Id. at 263.
In the instant case, appellant pleaded guilty to criminal sexual conduct in the first degree involving “sexual penetration in addition to sexual conduct” with an eight-year-old child. The district court found appellant’s offense to be no less serious than the typical first-degree criminal sexual conduct and, therefore, found no substantial or compelling reason to depart from the presumptive sentence. In sentencing appellant, the district court listed the following factors that placed the offense squarely within the presumptive sentence: the seriousness of the offense, the injury to M.C., appellant’s lack of empathy, and “the fact that [appellant] apparently drove past [M.C.’s] foster parents’ residence * * * .” The district court stated:
[T]he report * * * indicates clearly to me that you have a lack of empathy, and your demeanor both at the plea and at this hearing causes me to believe that you have a lack of empathy for the terrible thing that you have done to this young girl.
Thus, it is manifest that the district court made a considered decision within its discretion to impose the presumptive sentence on appellant.
Appellant contends that “[t]he proper standard for determining a dispositional departure is whether the defendant is particularly amenable to individualized treatment in a probationary setting.” However, before a district court may depart, dispositionally or durationally, from the presumptive sentence, “substantial and compelling circumstances” must be present. Minn. Sent. Guidelines II.D. In State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983), the supreme court noted that
when justifying only a dispositional departure, the trial court can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.
(Emphasis in original). The Heywood court affirmed the district court, holding that it “was justified in departing dispositionally, by staying presumptively executed minimum prison term[s], where the court concluded that [the] defendants were particularly amenable to probation.” Id. at 243.
It does not follow from the Heywood decision that the district court’s refusal in the instant case to depart dispositionally is an abuse of discretion or error. On the contrary, a district court may refuse to depart even where mitigating or aggravating factors are present. See, e.g., State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (“The fact that a mitigating factor was clearly present did not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (“We have indicated in a number of cases that ordinarily we will not interfere with a sentence that falls within the presumptive sentence range even if there are grounds that would justify departure.”); State v. Abeyta, 336 N.W.2d 264, 264 (Minn. 1983) (rejecting defendant’s argument “that there were mitigating circumstances present which were so substantial that the trial court on remand erred in refusing to depart dispositionally” and place him on probation). The three other cases that appellant cites to support his contention are all distinguishable, most noticeably because they are cases where the reviewing court affirmed the district court’s decision to depart as within the district court’s discretion.
Because it was within the district court’s discretion to refuse to depart from the presumptive sentence, we affirm.
 Had appellant’s offense occurred after August 1, 2000, he would have been subject to a presumptive 144-month sentence under Minn. Stat. § 609.342, subd. 2(b) (2000), which provides:
Unless a longer mandatory minimum sentence is otherwise required by law or the sentencing guidelines provide for a longer presumptive executed sentence, the court shall presume that an executed sentence of 144 months must be imposed on an offender convicted of violating this section. Sentencing a person in a manner other than that described in this paragraph is a departure from the sentencing guidelines.
 The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.
Minn. Sent. Guidelines II.D.
The guideline sentences are presumed to be appropriate for every case. However, there will be a small number of cases where substantial and compelling aggravating or mitigating factors are present. When such factors are present, the judge may depart from the presumptive disposition or duration provided in the guidelines, and stay or impose a sentence that is deemed to be more appropriate, reasonable, or equitable than the presumptive sentence.
Minn. Sent. Guidelines cmt. II.D.01.
 See State v. King, 337 N.W.2d 674, 675 (Minn. 1983) (defendant’s particular amenability to probation justified dispositional departure in form of stay of execution of presumptively executed sentence); State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (district court was justified in staying execution of defendant’s sentence in view of his youth, fact that he had no prior criminal record, his remorse, his cooperation, his respectful attitude in court, and strong support shown him by friends and family); State v. Wright, 310 N.W.2d 461, 462-63 (Minn. 1981) (district court’s sentencing departure in placing defendant on probation was based on substantial and compelling circumstances where district court reasonably concluded, on basis of recommendations of psychiatrist and agent who prepared presentence investigation report, that defendant was particularly unamenable to incarceration and particularly amenable to individualized treatment in probationary setting consistent with public safety).