This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1232

 

State of Minnesota,

Respondent,

 

vs.

 

Toni Michele Lemmer,

Appellant.

 

Filed March 12, 2002

Affirmed

Lansing, Judge

 

St. Louis County District Court

File No. K000600045

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Jeremy Clinefelter, Certified Student Attorney, Suite 500, 525 Park Ave., St. Paul, MN† 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, Suite 501, 100 N. 5th Ave. W., Duluth, MN† 55802 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 600, 2829 University Ave. SE, Minneapolis, MN† 55414 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Randall, Judge, Klaphake, Judge.

U N P U B L I S H E D†† O P I N I O N

 

LANSING, Judge

 

††††††††††† Toni Lemmer appeals the denial of her request for a downward durational departure on a presumptive 150-month sentence for third-degree murder in violation of Minn. Stat. ß 609.195(a) (1998).† Because Lemmerís arguments, to the extent they are supported by the evidence, do not compel reversal of the district courtís imposition of the presumptive sentence, we affirm.

F A C T S

 

††††††††††† Toni Lemmer called the Duluth Police Department on the afternoon of January 2, 2000, and reported that her boyfriend Randy Holm was dead in her apartment.† Police officers responding to the call found Holm on Lemmerís bedroom floor in a pool of blood.† They also found shell casings from a .22-caliber firearm next to Holmís body.† An autopsy determined that Holm died from blood loss attributable to multiple gun-shot wounds in his lower, rear extremities.†

Lemmer told the police that she and Holm had argued on the evening of January 1, 2000, and she left the apartment.† When she arrived home in the early morning hours of January 2, 2000, she found Holm lying on the floor in front of her bed.† She assumed that he had passed out from overconsumption of alcohol and, without investigating further, went to bed.† When she awoke that afternoon she saw that Holm had not moved, concluded that he was dead, and called the police.

At the police station, Lemmer told the police that she had left her apartment the previous evening to retrieve clothing for Holm from his apartment.† She also said that she had become fearful of Holm during the argument because of his anger and because he had previously abused her physically and sexually.†

Police obtained a search warrant for Lemmerís apartment.† The search yielded ten spent .22-caliber shell casings from the bedroom and a .22-caliber rifle located behind the couch in Lemmerís living room.

The state charged Lemmer with second-degree murder.† Following plea negotiations, Lemmer entered a guilty plea to an amended charge of third-degree, depraved-mind murder, and the state agreed to a sentencing cap of 150 months.† At the sentencing hearing, Lemmer requested a downward durational departure on four grounds:† Holm was the aggressor, she acted in self-defense, her history of mental illness diminished her capacity for judgment, and she was remorseful.† The district court rejected Lemmerís request for a departure and imposed the presumptive guideline sentence of 150 months.

††††††††††† On appeal, Lemmer argues the district court abused its discretion by failing to grant a durational departure.† In her pro se supplemental brief, Lemmer also argues that the court misapplied the law by not accepting equivocal evidence of Holmís aggression and that the prosecutor committed misconduct by demonstrating that the .22-caliber rifle belonged to Lemmer rather than Holm.

D E C I S I O N

 

I

 

Whether to depart from the sentencing guidelines is a discretionary decision of the district court that will be reversed only when the discretion is abused.† State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).† Only in rare cases will a reviewing court reverse a district courtís imposition of the presumptive sentence.† State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).† Even when grounds exist that would justify departure, an appellate court will not ordinarily interfere with the district courtís discretionary imposition of the presumptive sentence.† State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).†

The sentences prescribed by the guidelines are presumed to be appropriate.† Minn. Sent. Guidelines cmt. II.D.01.† Although the district court generally applies the presumptive sentence, the court has discretion to depart if substantial and compelling circumstances warrant a departure.† Id.;Kindem, 313 N.W.2d at 7.† When determining whether departure is justified, a district court must consider if the ďdefendantís conduct was significantly more or less serious than that typically involved in the commission of the crime in question.Ē† State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).† To aid the court in making its decision, the Guidelines list nonexclusive mitigating factors that may establish grounds for a downward departure.† See Minn. Sent. Guidelines II.D.2.† These factors include the victimís acting as the aggressor, the offenderís lack of capacity for judgment, and other substantial grounds that excuse or mitigate culpability.† Id. at II.D.2(a).†

The district court considered and addressed each of Lemmerís four proposed grounds for departure.† The court accepted Lemmerís evidence that she had been physically and sexually abused by Holm and others, but characterized the evidence as equivocal on whether Holm had been the aggressor in the events leading to his death.† The record supports this characterization.† Police observed no visible marks on Lemmerís body on the day following Holmís death.† Lemmer does not claim that Holm hurt or touched her before she shot him, and the physical evidence does not support Lemmerís claim that she was the victim of Holmís aggression on the evening he was shot.† The court rejected Lemmerís self-defense explanation because of Holmís multiple wounds including several wounds that demonstrate Holm was shot from behind.† The court also noted that Lemmer made no attempt to provide assistance to Holm after the wounds were inflicted or when she saw him on the floor of her bedroom the following morning.

The evidence that Lemmer lacked the capacity for judgment is mixed.† The record establishes that Lemmer had significant and persistent psychiatric difficulties, but neither the consulting doctors nor the psychologist believed that she was incapable of rational thought on the night she shot Holm.† The psychologist testified that although she believed that Lemmer suffered from battered womanís syndrome, Lemmer was not ďcrazy.Ē† Other doctors observed that Lemmer demonstrated psychological difficulties, but added that she could not be relied on to tell the truth, was intoxicated at the time of the shooting, and was fit to stand trial.† Voluntary intoxication that impairs judgment is not a lack of capacity supporting a departure.

The court accepted Lemmerís statements of remorse, but concluded that remorse alone was not enough to compel a downward durational departure.† See State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (stating that when there are factors both for and against granting downward departure, the decision is matter of discretion for the district court), review denied (Minn. Jan. 14, 1991).

Lemmer argues a fifth basis for departure on appeal: cooperation with the authorities.† This basis was not argued to the district court and, in addition, has only minimal support in the record.† Although Lemmer openly spoke with the police about some of the events surrounding Holmís death, she withheld other information and, with the assistance of a friend, hid the .22-caliber rifle used in the shooting.

On this record the district court acted within its discretion in declining to depart downward from the presumptive sentence for third-degree murder.† See State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (stating that a district court has a unique perspective and is in the best position to evaluate offenderís conduct and weigh sentencing options).

II

In her pro se supplemental brief, Lemmer claims that the court misapplied the law in considering her request for a downward departure and that the prosecutor committed misconduct in refuting her statement on Holmís ownership of the gun.†

Lemmer contends that because the district court found the evidence of Holmís aggressive behavior ďequivocal,Ē the court is obligated to accept her account of Holmís aggression.† Lemmerís argument attempts to transfer the evidentiary burdens of trial to the courtís discretionary determination of whether to depart.

The standard for granting a downward durational departure is whether the district court, in its discretion, finds that there are ďsubstantial and compellingĒ circumstances that warrant a departure.† Kindem, 313 N.W.2d at 7.† Although Lemmer presented evidence of past aggression and past physical abuse, her accounts of Holmís aggression on the evening of the shooting are equivocal and inconsistent.† The district court is not obligated to accept these accounts as substantial and compelling circumstances that require a departure.

Lemmerís final allegation is that the state engaged in prosecutorial misconduct by refuting her statement that Holm owned the gun by showing that the gun had been used in a previous shooting incident that occurred between Lemmer and another person before Lemmer knew Holm.† Prosecutorial misconduct is a doctrine that is ordinarily applied to ensure that a defendant receives a fair trial.† See, e.g., State v. Robinson, 604 N.W.2d 355, 362 (Minn. 2000).† Even if the doctrine were extended to the sentencing phase of trial, Lemmer has not shown that the prosecutorís information was incorrect.† Thus, the prosecutor may have had an obligation to bring the information to the courtís attention.

Because the district court did not misapply the law or abuse its sentencing discretion, we affirm.† Lemmer has demonstrated substantial and persistent psychiatric difficulties and a history of physical, sexual, and chemical abuse.† The record shows that she has substantial support from friends and family in confronting these protracted problems.† But the record does not show that the district court abused its discretion in imposing the presumptive guideline sentence for third-degree, depraved-mind murder.

††††††††††† Affirmed.