This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Ernest Demar Moore,




Filed January 8, 2002


Halbrooks, Judge



Ramsey County District Court

File No. K1002386


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


Susan Gaertner, Ramsey County Attorney, Richard J. Dusterhoft, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102  (for respondent)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges his sentence for second-degree unintentional murder on the ground that the trial court failed to consider the presence of mitigating circumstances in imposing a presumptive sentence.  Because the trial court acted within its discretion, we affirm.


Appellant Ernest Demar Moore shared a Minneapolis apartment with Dino Moore, Marvin Pate, and Michael Warren.  On January 24, 2000, just before 8:00 p.m., appellant, Pate, Dale Ross,[1] and some friends returned to the apartment.  Appellant noticed that some of his clothes and other belongings were missing.  He surmised that Warren had taken his belongings because Warren was gone and appellant’s key was “thrown under the door.”  Appellant, Pate, and Ross believed that Warren was traveling by bus to Chicago, so appellant drove them to the Minneapolis Greyhound station.  Upon arrival at the bus station, appellant found his belongings in the luggage compartment of a bus bound for Chicago and removed them without having any contact with Warren.  At some point after leaving the station, appellant realized that he had not recovered all of his things.

The three then drove to St. Paul.  As they drove, Pate was yelling that they needed “to go F [Warren] up.”  They stopped at a home in St. Paul and Pate and Ross went in.  When Pate and Ross returned, they told appellant that they had a gun and wanted to switch cars, in case appellant’s had been seen at the Minneapolis bus station.  As they drove to the St. Paul bus station, Ross pulled out the gun, and appellant put it on the back seat. 

When they arrived, Pate asked to see the gun, and appellant handed it to him.  Pate then boarded the bus and shot Warren in the head, killing him.  Appellant turned himself in to the police the following morning.

Appellant was indicted for one count of second-degree intentional murder and one count of conspiracy to commit second-degree murder.  Appellant agreed to a plea bargain and pleaded guilty to second-degree unintentional murder under Minn. Stat. § 609.19, subd. 2 (1998).  The agreement required appellant to cooperate in the Pate and Ross prosecutions in exchange for a 150-month guideline sentence.  The state agreed that appellant could argue for departure at the sentencing.

Pate was charged with one count of first-degree murder and one count of second-degree murder.  He was tried and acquitted, despite appellant’s testimony.  Ross was charged with one count of first-degree murder and one count of second-degree murder.  Charges against him were later dismissed.

At sentencing, appellant moved for dispositional and durational downward departures from the presumptive 150-month sentence.  Appellant cited a number of mitigating factors, including his cooperation with the police, his family support, his lack of a criminal record,[2] and his age (21).  Additionally, because Pate was acquitted and the charges against Ross were dismissed, appellant was to be the only defendant sentenced for this crime.  Appellant argued that his role was minor compared to that of Pate and Ross.  The trial court denied both motions and imposed the presumptive sentence of 150 months.  This appeal follows.


The trial court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only in a rare case will a reviewing court reverse a district court’s imposition of the presumptive sentence.  Id.  A sentencing court should “exercise[] its broad discretion, [by] comparing reasons for and against departure” when determining the appropriate sentence.  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).  Factors a sentencing court may consider in imposing a downward departure include the age of the defendant, whether the defendant has a prior criminal record, whether the defendant is remorseful, whether the defendant cooperated with law-enforcement authorities, and whether the defendant has family support.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  The presence of mitigating factors does not require a sentencing court to impose a downward departure from the sentencing guidelines.  See 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.”).

Although appellant maintains that his level of involvement in the crime was minimal, he played a key role in the murder.  It was his property that was stolen, he drove his friends to the Minneapolis bus station, and he handed Pate the gun at the St. Paul bus station.  Although appellant turned himself in, he also told the police several versions of what happened.  As the trial court stated:

This is a very serious matter.  You did admit your role in it, even though you didn’t intend that someone would get killed.  You did admit that you had the gun in your hand at one time.  You were in the car.  It was your belongings that Mr. Warren had taken.  


The trial court has broad discretion to impose the sentence that it deems appropriate provided that it examines all factors relevant to sentencing.  State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985) (“The reviewing court may not interfere with the sentencing court’s exercise of discretion, as long as the record shows the sentencing court carefully evaluated all the testimony and information presented before making a determination.”).  In this case, the court that sentenced appellant also presided at Pate’s trial.  The court gave appellant the opportunity to present mitigating factors.  After considering those factors, the court acted within its broad discretion to impose the presumptive sentence. 



[1]  The pre-sentence investigation reports that Ross’s first name is Lovell.  Appellant stated that Ross’s first name is Dale. 

[2]  Appellant’s prior adult convictions include two instances of speeding and two instances of driving without a license.