This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,


Daniel Lee Kruse,


Filed May 8, 2001


Crippen, Judge


Hennepin County District Court

File No. 98120765



Mike Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and


Amy Klobuchar, Michael Richardson, Hennepin County Attorney’s Office, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)


John Stuart, Steven P. Russett, Minnesota State Public Defender’s Office, 2829 University Avenue SE, Suite 600, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

U N P U B L I S H E D    O P I N I O N


            Because the record does not present one of those rare circumstances permitting a demand for a downward departure from the presumptive guidelines sentence, we affirm the trial court’s imposition of the presumptive sentence for appellant’s first-degree assault offense.


            Appellant Daniel Kruse severely injured another patron of a bar by first punching, then kicking the victim in the face.  Both appellant and the victim had been drinking.  Appellant testified that the victim confronted and hit him. Other witnesses testified that appellant was pestering the victim, whereupon the victim grabbed appellant’s hand, stood up, and perhaps pushed appellant away from him.  Appellant then punched the victim, knocking him to the floor.  Although restrained, appellant kicked the victim in the face as he attempted to stand up.  Appellant entered into a plea agreement that provided he would receive a 59-month sentence, a downward departure from the presumptive guidelines sentence of 86 months.  Later, appellant withdrew from the plea agreement, the jury convicted him of first-degree assault, and the court imposed a sentence of 86 months.



The trial court may depart from the sentencing guidelines if the “individual case involves substantial and compelling circumstances.”  Minn. Sent. Guidelines II.D.  If such circumstances exist, the court has broad discretion in its decision to depart and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Only in a “rare” case will this court reverse the trial court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

Here, the trial court found no substantial or compelling circumstances to warrant a departure, and the record permits the court’s summary of the case: the court impressed upon appellant the risks of withdrawing his guilty plea and going to trial, advising that his sentence could be greater than that determined in the plea agreement; the jury rejected appellant’s claim of self-defense; and the record contains ample evidence to conclude that appellant willfully attacked the victim.  See State v. McKissic, 415 N.W.2d 341, 345-46 (Minn. App. 1987) (providing there is no error in refusing to depart when the reasoning for departure rests on a self-defense claim that was unclear or not accepted by the jury).  Although appellant may not have intended to inflict the severe injuries that he did, there is sufficient evidence that he meant to harm the victim.  See State v. Gorman, 532 N.W.2d 229, 233 (Minn. App. 1995) (stating felony assault does not require “proof of intent to inflict a certain degree of bodily harm” (citation omitted)), review denied in part, granted in part (Minn. July 20, 1995), and aff’d, 546 N.W.2d 5 (Minn. 1996).

The circumstances here are much different that those addressed in Hennum, a case cited by appellant, where the Minnesota Supreme Court reversed the trial court’s refusal to depart from the presumptive sentence.  State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989).  In Hennum, the supreme court concluded that in spite of the jury’s rejection of the defendant’s self-defense claim, the case qualified “as one of those rare cases” where the court was justified in interfering with the trial court’s refusal to depart because of substantial evidence that the victim had subjected the defendant to “severe physical and mental abuse” for an extended period of time.  Id.  In this case, the mere fact that the victim may have shoved appellant before appellant hit him is not the type of circumstance that would justify interfering with the trial court’s decision not to depart.

Appellant also contends that the trial court should have imposed a 59-month sentence because the court had indicated earlier its consent to a plea agreement with a sentence of that length.  But appellant withdrew from the plea agreement and demanded a trial, taking a chance that trial evidence would impact the length of his sentence.  See State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983) (“[O]ne of the risks of a defendant’s insisting on a trial is that it gives the court an opportunity to see the victims and hear the testimony and learn the facts in more vivid, concrete detail.”).  No new evidence was presented at trial as respondent suggests, but the record does permit the conclusion that the trial court had the opportunity to see the victim, hear his testimony, and learn the facts in more vivid detail.  Moreover, as in any trial, the court was able to ascertain the credibility of appellant’s statements and the contradictory statements of his conduct.