This opinion will be unpublished and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,
Abel DeJuan Chaparro,
Filed October 16, 2001
Yellow Medicine County District Court
File No. K7-99-260
Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Thomas G. Kramer, Yellow Medicine County Attorney, P.O. Box 128, 132 Eighth Avenue, Granite Falls, MN 56241 (for respondent)
Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
Appellant challenges a postconviction order correcting his criminal history score but denying his motion for downward durational departure for second-degree assault. Appellant argues that the district court abused its discretion in refusing to depart because (1) appellant was provoked by his wife’s drinking and infidelity, and (2) the victim’s injuries were significantly less serious than those sustained in the typical second-degree assault. Appellant also argues that the district court’s imposition of multiple concurrent sentences exaggerated the criminality of his conduct. We affirm.
Early one morning, appellant’s wife was drinking around a picnic table with a male friend and others. Suddenly, a man swinging a baseball bat jumped out of the bushes and struck several of the people present before running away. Witnesses identified the assailant as appellant Abel Chaparro.
The jury found Chaparro guilty of two counts of second-degree assault, each for a different victim. The court sentenced Chaparro to concurrent sentences of 39 months and 51 months. Chaparro initially appealed the sentence, but then moved to remand for postconviction proceedings to correct the sentence on one of the counts and to move for downward departure. The district court corrected the 51-month sentence to 45 months, but denied Chaparro’s motion for downward departure. This appeal followed.
A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted). Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. (citation omitted).
Chaparro argues that the postconviction court erred by denying his motion for downward durational departure; first, because there were mitigating circumstances, and second, because the victims’ injuries were less serious than those resulting from the typical second-degree assault.
The decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court must order the presumptive sentence unless the case involves “substantial and compelling circumstances” to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see also Minn. Sent. Guidelines II.D. Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal. Kindem, 313 N.W.2d at 7.
Chaparro notes that the sentencing guidelines allow a court to depart when “[o]ther 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.(5). He argues that the upsetting nature of his wife’s drinking and infidelity provoked the attack and that such provocation constitutes a mitigating circumstance warranting downward departure.
Chaparro fails to cite to any cases that recognize such provocation as a mitigating circumstance, and we have found none. We conclude that the district court did not abuse its discretion in declining to make a downward departure on the basis of provocation.
Chaparro also argues that the district court erred by denying his motion for downward departure because the victims’ injuries were less serious than those resulting from the typical second-degree assault. While Chaparro correctly points out that the seriousness of the injury is not an element of second-degree assault, he suggests that it becomes relevant because the crime requires assault with a “dangerous weapon,” which implies the possibility of serious injury.
This argument is unconvincing. The definition of a “dangerous weapon” does not focus on the seriousness of the actual injury, but on the capability of the instrumentality to cause serious injury. See Minn. Stat. § 609.02, subd. 6 (1998) (defining a “dangerous weapon” as “any * * * device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm”).
Moreover, this court has held that a downward departure in sentencing is not required simply because the weapon used in a particular case is not as dangerous as some others. State v. Hysell, 449 N.W.2d 741, 744 (Minn. App. 1990) (holding that district court was not required to downward depart for second-degree assault because, while an air rifle is arguably a less dangerous weapon, it is nonetheless capable of producing great bodily harm); State v. Carter, 424 N.W.2d 821, 824, (Minn. App. 1988) (holding that downward departure was not required where the defendant used a wooden post that was potentially just as deadly as a knife or a gun).
A baseball bat is capable of producing serious injury or death and, therefore, is a dangerous weapon for purposes of second-degree assault. A downward departure is not required because a bat may be less dangerous than other dangerous weapons. Likewise, a downward departure is not required because Chaparro did not actually cause serious injury. The district court did not abuse its discretion when it refused to grant a downward dispositional departure.
Chaparro also argues that the district court’s imposition of concurrent sentences exaggerates the criminality of his conduct.
Minnesota law prohibits the imposition of multiple sentences, including concurrent sentences, arising from a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). The district court has discretion, however, when crimes are committed against different victims in the same incident, to impose one sentence per victim, provided the sentencing does not exaggerate the criminality of the defendant's conduct. State v. Cole, 542 N.W.2d 43, 53 (Minn. 1996); State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988). Sentences that are within the presumptive sentence range do not exaggerate the criminality of the defendant’s conduct. Norris, 428 N.W.2d at 70.
Because the sentences imposed on Chaparro are within the presumptive sentence range, the district court did not abuse its discretion in imposing concurrent sentences.
 While not precedential, this court’s reasoning in the unpublished decision of State v. Bladow is persuasive. There, we stated that
although the guidelines list of mitigating factors is non-exclusive, generally provoking circumstances, collateral to the specific event, have not been recognized as mitigating violent offenses. The relationships of the individuals involved should not be considered sufficient to mitigate violent assaults.
State v. Bladow, No. C2-88-2625, 1989 WL 1000641, at *1 (Minn. App. Sept. 5, 1989).