This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Jason Ryan Burford,
Hennepin County District Court
File No. 99090187
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott Swanson, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Poritsky, Judge.*
Appellant Jason Burford disputes his conviction for second-degree murder, contending that the trial court erred in allowing the state to introduce evidence of his “enhanced” intellectual capacity. Appellant also claims that the trial court abused its discretion in imposing an upward durational sentencing departure. We affirm.
In late May 1999, 18-year-old Valantina Voight disappeared. Voight had a long history of drug abuse and was addicted to crack cocaine. In August 1999, appellant’s friend, Matt Garwood, told police officers that appellant admitted to him that he had strangled Voight and buried her in a shallow grave.
Later in August 1999, following police instructions, Garwood made arrangements to have appellant, who had moved to South Carolina, visit him in Minnesota. Garwood and appellant stayed in a motel room that police had equipped with a video camera and audio system. During one conversation in the motel room, appellant told Garwood that he had killed Voight in part because she had taken $2,000 from him. Appellant led Garwood to a remote area in Elk River where Voight was buried and told Garwood that he had planted grass over the area to cover up the gravesite. The next day, police exhumed the body and arrested appellant for murder and interfering with a dead body.
At trial, a medical examiner testified that because the body was unclothed and buried in a shallow grave in the summer, it had “entered the late postmortem interval.” Because of the body’s state of decomposition, the examiner used dental records to identify Voight’s body. The examiner stated that in his opinion, the cause of Voight’s death was “homicidal violence,” mainly asphyxiation, because of the “absence of any other injuries that would cause the death of someone of this age.”
Appellant testified that he buried Voight on May 31, 1999, but insisted that he did not kill her. He claimed that Voight died of an overdose of prescription painkillers. Appellant maintained that he decided to bury Voight instead of calling the police because he had given her painkillers, which he had taken from somebody’s home, and thought he would be questioned about it. Appellant described how he put Voight’s body in the trunk of his car and drove to a remote area in Elk River. He took off her clothes and estimated that it took 30 minutes to bury her.
Appellant asserted that he told Garwood he had buried Voight, not killed her, and that he let Garwood believe that he had killed her to make Garwood afraid of him. Appellant also admitted that he later went to the area where he buried Voight and planted grass to hide the grave from view.
Brief mention was made at trial that during a search of appellant’s apartment, police found correspondence from Mensa indicating, according to the officer, that appellant “had missed being admitted to that group of people with a high IQ because he was just one IQ short.” The state then commented on how despite appellant’s high IQ, he was lured into admitting on videotape that he killed Voight and unknowingly leading authorities to the body. The state also questioned appellant about his claimed ability as a prophet. Appellant admitted that he had written to the Minneapolis Star Tribune, proclaiming to have used LSD and that it had enhanced his ability to prophesy. He signed the letter “sincerely a fellow intellectual.”
The jury found appellant guilty of second-degree murder and interference with a dead body. The trial court sentenced appellant to an executed 366-month term of imprisonment, a 53-month departure from the upper end of the presumptive guidelines sentence.
1. Evidentiary rulings
The trial court did not abuse its discretion in permitting testimony concerning appellant’s intellectual capacities. “Appellate courts largely defer to the trial court’s exercise of discretion in evidentiary matters” and will not overturn an evidentiary ruling absent a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989) (citations omitted). Appellant presents no authority, and we find none, for his proposition that evidence of enhanced capacity is not admissible. The law provides only that evidence of diminished capacity is not allowed. State v. Bouwman, 328 N.W.2d 703, 706 (Minn. 1982) (rejecting the doctrine of “diminished responsibility” because the law does not recognize varying degrees of sanity); see also Minn. Stat. § 611.025 (2000) (“[I]n every criminal proceeding, a person is presumed to be responsible for the person’s acts * * *.”). Moreover, there is no showing that the state used evidence of appellant’s intellectual capacity to demonstrate his ability to plan and commit the crime. The Mensa scores were introduced in the context of describing evidence seized from appellant’s apartment, and other references to appellant’s intelligence occurred through evidence aimed at contradicting his testimony on the duration of his involvement with illegal drugs.
Even assuming the trial court abused its discretion, the error was harmless beyond a reasonable doubt. See Kelly,435 N.W.2d at 813 (stating that even if an evidentiary ruling violates a constitutional right, “the decision will not be reversed if it is found to be harmless beyond a reasonable doubt” (citation omitted)); accord State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (providing that the test to determine harmless error is “whether the error reasonably could have impacted upon the jury’s decision”). There is no showing that appellant’s case was weakened by evidence of his intellectual capacity, and there was overwhelming independent evidence that the jury could have used to find appellant guilty. See State v. Risk, 598 N.W.2d 642, 650 (Minn. 1999) (finding harmless error in light of “overwhelming independent evidence presented against appellant at trial, including testimony from two individuals who told the jury that appellant confessed to them that he committed the murder”). The jury was presented with appellant’s testimony that he was with Voight when she died and that he buried her; Garwood’s testimony that appellant confessed to killing Voight; a surveillance tape of appellant bragging about killing the victim; and the medical examiner’s testimony that in his opinion, the cause of Voight’s death was strangulation.
Appellant also challenges the decision to admit evidence concerning his enhanced intellectual capacity because he was not allowed to present evidence concerning Tourette’s Syndrome, a disorder from which he suffers. Not only is evidence of diminished capacity expressly prohibited, but also appellant was allowed to present evidence concerning his disorder; his mother testified that Tourette’s Syndrome made him cough a lot, “tick,” and scratch uncontrollably.
2. Sentencing departure
Decisions to depart from the sentencing guidelines rest within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). A reviewing court will not substitute its own judgment for that of the trial court regarding sentencing matters. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 22, 1994). The presumptive sentences provided in the sentencing guidelines are presumed appropriate for every case, but the trial court may depart if the “individual case involves substantial and compelling circumstances.” Minn. Sent. Guidelines II.D.
The trial court based appellant’s sentencing departure on two substantial and compelling aggravating factors: appellant’s particular cruelty in concealing the body and his lack of remorse. “Concealment and an attempt to hinder identification of the body are valid aggravating factors.” State v. Jackson, 370 N.W.2d 72, 74 (Minn. App. 1985) (citations omitted), review denied (Minn. Aug. 20, 1985); cf. State v. Schmit, 329 N.W.2d 56, 58 n.1 (Minn. 1983) (recognizing that concealment not abusive in manner is not an aggravating factor). Appellant concealed his crime by transporting the victim’s body to a remote area in the middle of a Girl Scout camp. He removed all of her clothing, including any items of identification, buried her in a shallow grave, and later returned to plant grass seed on the grave to cover it up. Appellant’s concealment of the body and later deceit, lying to Voight’s mother about her daughter’s whereabouts, caused the Voight family great anguish. See State v. Murr, 443 N.W.2d 833, 837 (Minn. App. 1989) (providing that “the method of concealment and the indication of particular cruelty” may be considered in granting an aggravated sentence), review denied (Minn. Sept. 27, 1989).
The court also determined that appellant’s lack of remorse related “back to the particular cruelty of concealment.” In addition to bragging about committing the crime, the court remarked on appellant’s conversation with Voight’s mother in which he questioned Voight’s self esteem when he knew “she was no longer walking this earth.” The court was also disturbed by appellant’s “cavalier candor and * * * demeanor as evidenced on the surveillance tape” in which he discussed the incident with Garwood.
Although lack of remorse generally is not considered in the context of durational departures, its use as an aggravating factor is not prohibited. State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984) (stating that “there may be cases in which the defendant’s lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based”). The combination of appellant’s lack of remorse and the particularly cruel manner in which he concealed the body adequately supports the trial court’s upward durational departure.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Because there is no lawful basis for appellant’s expectation of a new trial in the case, we do not reach his pro se assertions as to evidence that should be considered in the event such a trial occurred.
 Appellant testified that in early May 1999, appellant told Voight of his plans to steal an ATM machine with Garwood and Garwood’s roommate, Matt Lodin. When Garwood and Lodin found out that appellant had told Voight, they were “very angry” and “insinuat[ed] that they were going to beat [appellant] up.”