This opinion will be unpublished and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

C3-00-1471

 

State of Minnesota,

Respondent,

 

vs.

 

Annette Naomi Robinson,

Appellant.

 

Filed July 24, 2001

Affirmed

Amundson, Judge

Concurring specially, Lansing, Judge

 

Ramsey County District Court

File No. K0-99-1674

 

 

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

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

AMUNDSON, Judge.

In sentencing appellant for second-degree felony murder, the district imposed the presumptive sentence mandated by the sentencing guidelines.  We affirm.

FACTS

            In October 1998, appellant, Annette Naomi Robinson, met Henderson Harris Howard.  Robinson and Howard later were engaged to be married.  Robinson testified that on June 8, 1999 Howard raped her.  After this incident she stayed in a shelter, and told police that she had reported the rape, but no police report was found.

On June 10, 1999, Renda Tesfai went to Robinson's apartment to drink alcohol along with Robert Cook, Patrick Walker, and Antoine Watson; another friend, Cathy Lou Evans, arrived later.  Robinson and Howard were also present.  Robinson spent most of her time in the bedroom.  Howard came and went, but was with Robinson in the bedroom where they argued during the course of the evening.  At some point, Howard intended to leave the apartment, but Robinson did not want him to go.  Howard began packing up his belongings, including a television, stereo, and vacuum cleaner and placed them by the apartment door.  During the argument, Robinson had a knife in her hand and told Howard that if he left, she was going to stab and kill him.  Cook stopped the confrontation, Howard stayed in the apartment, and Robinson put the knife away.  Robinson and Howard went back into the bedroom. 

In the early morning of June 11, 1999, Tesfai and Evans left the apartment.  Cook, Walker, and Watson remained in the apartment, but fell asleep in the living room.  Robinson and Howard remained in the apartment and at some point on June 11, 1999, Robinson stabbed Howard in the chest with a knife.  At about the same time, Tesfai and Evans returned to Robinson's apartment and knocked on the door.  Howard opened the door holding a knife.  His shirt was bloody.  He stumbled through the doorway, past Tesfai and Evans where he tried to walk, but collapsed instead.  The police were called.  After arriving, the police kicked down Robinson’s locked bedroom door and found Robinson on her bed, covered with a blanket.

Robinson testified at the court trial that she was arguing with Howard, who was outside of the apartment, through the front door and that he pushed his way into the apartment and “rushed into the knife, I guess.”  She testified that she had a flashback to a previous incident in 1996 in which she was stabbed and that she “wasn't going to let [the 1996 assailant] hurt me a second time.”  She claimed Howard tried to hurt her and she was defending herself.  The court, however, found that Howard had been inside the apartment the entire evening and that Robinson, in retrieving the knife, had acted intentionally when stabbing Howard.  Furthermore, the court determined that Howard did not reasonably cause Robinson to believe he was about to inflict or attempt to inflict bodily harm on her or commit a felony in the apartment, and concluded that she did not stab Howard in self-defense.

Howard died as a result of his wound from the stabbing and Robinson was charged with second-degree murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1998).  After a court trial, Robinson was found guilty of second-degree murder.  She was sentenced to the presumptive sentence of 150 months and her motion for a downward departure was rejected.  This appeal followed.

D E C I S I O N

Robinson argues that the district court abused its discretion when it denied her request to depart from the presumptive sentence because (a) she lacked substantial capacity for judgment at the time of the offense due to mental illness, as well as other mitigating factors, and (b) the evidence demonstrates that she is “particularly amenable to probation.” 

A reviewing court affords the trial court great discretion in the imposition of sentences and will not simply substitute its judgment for that of the trial court.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The decision whether to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  Id.  This court may, however, review the sentence imposed to determine whether it is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.  Minn. Stat. § 244.11, subd. 2(b) (2000); Minn. R. Crim. P. 28.05, subd. 2. 

The purposes of the sentencing guidelines will not be served if trial courts generally fail to apply the presumptive sentences found in the guidelines.  Spain, 590 N.W.2d  at 88.  A trial court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  When considering whether sufficient mitigating circumstances are present to warrant a departure, the trial court considers whether the conduct was “significantly more or less serious than that typically involved in the commission of the crime in question.”  Spain, 590 N.W.2d at 88-89 (citation omitted).  Only in a rare case will a reviewing court reverse a trial court’s imposition of the presumptive sentence.  Kindem, 313 N.W.2d at 7. 

a.         Mitigating factors

Mitigating factors warranting a downward departure from the presumptive sentence indicated by the guidelines include situations where

            (3) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. 

* * * *

            (5) Other substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense.

Minn. Sent. Guidelines II.D.2.a.(3), (5).

Robinson had been stabbed and severely injured in 1996. She presented evidence that she had been the victim of repeated physical and sexual abuse as a child, and testified that she was raped by Howard three days before the murder.  In 1998, Robinson went to Chicago to take care of her ailing mother, saw her suffer, and was present at her death. Robinson's expert testified that she suffered from chronic post traumatic stress disorder as a result of these events and that that disorder was a cause of her behavior in stabbing Howard in 1999.

            The state presented a psychiatric evaluation of Robinson which revealed that although Robinson claimed that she experienced a flashback to the 1996 assault when she stabbed Howard, she did not experience any other psychotic symptoms that would impair her ability to be aware of her actions or in control of her behavior and that her subjective reports of post traumatic stress disorder and depressive and psychotic symptoms were not evidenced by objective symptoms that typically accompany psychiatric disorders.  The doctors who prepared the report concluded that Robinson's actions involving the stabbing and her subsequent actions were organized, goal-directed, and motive-based.  They opined that at the time she stabbed Howard, Robinson was not suffering from a major mental illness or mental deficiency that would have rendered her incapable of knowing the nature or the wrongfulness of her conduct.

            The district court’s finding that Robinson did not suffer from post traumatic stress disorder is supported by evidence presented at trial.  Because of the evidence that Robinson’s actions were organized, goal-directed, and motive-based and that she was not suffering from a mental illness that would have prevented her from understanding the wrongfulness of her actions, the district court did not abuse its discretion in imposing the presumptive sentence. 

b.         Dispositional departure

            Amenability to probation is a sufficient basis for a downward dispositional departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  A court should look to grant a downward departure where a defendant is “particularly amenable to probation.”  State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).  To make this determination, the district court may consider the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family.  Trog, 323 N.W.2d at 31.

            Robinson contends that she would be amenable to probation because she had no prior felonies in her record; had a criminal history score of zero; does not present an imminent risk of harm to herself and others; has adult children, grandchildren, and family to help and support her; has attended therapy “regularly” in the past; would have her best opportunity for success with intense therapy; and expressed remorse for what happened.

            The district court did not, however, abuse its discretion by declining to conclude that Robinson was particularly amenable to probation and imposing a downward departure from the presumptive sentence.  First, while Robinson had a criminal history score of zero and that fact may be used, in conjunction with other factors, to demonstrate that she would be particularly amenable to probation, there do not appear to be other mitigating factors warranting a downward departure.  Second, witnesses at trial testified to their observation that Robinson had verbally threatened to kill Howard and had physically threatened him the night before the murder.  Also, evidence was presented at trial of Robinson's significant anger and emotional outbursts.  Third, Robinson presented no testimony at the sentencing hearing from her relatives or friends that they would assist her.  Fourth, the report from Robinson's court-ordered psychiatric evaluation noted that Robinson has not consistently taken the psychiatric medications prescribed to her and has not remained under treatment with her psychiatric providers, although such treatment was necessary.  Remorse is another factor the court may consider for downward departure.  But, we sadly note that, after stabbing Howard, Robinson not only failed to call for help but, while police were transporting her after the stabbing, asked an officer “is that son of a bitch dead yet?”  Verba sunt indices animi.

            Affirmed.

 

 

LANSING, Judge (Concurring specially).

            I concur.  The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 744, 776 (Minn. 1996).  Only in a rare case will the reviewing court reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The evidence in the record compels neither a durational nor a dispositional departure.  Consequently, the district court did not abuse its discretion in imposing the presumptive guidelines sentence.