This opinion will be unpublished and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
State of Minnesota,
Lee Andrew Paul,
St. Louis County District Court
File No. K100600796
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
TOUSSAINT, Chief Judge
During his jury trial for felon in possession of a firearm, appellant Lee Andrew Paul intentionally absented himself from the trial. The trial court denied appellants’ continuance motion to obtain witnesses, and the trial proceeded. After the jury convicted appellant of the charged offense, the court denied appellants’ motion for a downward durational and dispositional departure and sentenced him to 60 months. Because appellant’s offense carries a presumptive sentence of 60 months, and because he has not shown that he was prejudiced by the continuance denial, the trial court did not abuse its discretion. We affirm.
The trial court has broad discretion in sentencing and only in a “rare” case will a reviewing court reverse a trial court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The 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. Minn. Sent. Guidelines II.D.
Appellant argues that the trial court abused its discretion by imposing the mandatory minimum sentence of 60 months for a felon in possession of a firearm, rather than the presumptive sentence of 49 to 53 months. A conviction for violating Minn. Stat. § 609.165 (2000), a felon in possession of a firearm, carries a presumptive sentence of “not less than five years.” Minn. Stat. § 609.11, subd. 5(b) (2000). And the presumptive sentence is the “mandatory minimum sentence according to statute or the duration of the prison sentence provided in the * * * Sentencing Guidelines Grid, whichever one is longer.” Minn. Sent. Guidelines II.E. Here, because the statutory minimum sentence is longer than the sentence under the guidelines, the five-year mandatory minimum sentence constitutes the presumptive sentence. Therefore, the trial court correctly imposed the presumptive sentence of 60 months for appellant’s conviction of a felon in possession of a firearm.
Appellant alternatively argues that if the 60-month sentence constitutes the presumptive sentence, there are mitigating factors present to justify a downward departure. Although appellant concedes that he handled the firearm, he argues that he did not fire the gun and that he played a minor role in the crime because his possession of the firearm was “fleeting and passive.” A trial court may sentence a “defendant without regard to the mandatory minimum sentences * * * if the court finds substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd. 8(a) (2000). Generally, in determining whether to depart in sentencing, a trial court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). The jury believed that appellant knowingly possessed the gun, and he does not provide any caselaw to support his proposition that a “fleeting and passive” possession is any less dangerous than a typical case of felon in possession of a firearm. Even in a constructive-possession case, the presumptive sentence applies. See State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999) (holding that the presumptive sentencing provisions of section 609.11 apply to cases of constructive possession where it is reasonable to assume that the weapon’s presence increased the risk of violence).
Appellant also argues that the witnesses who testified that he possessed the gun are suspect because they did not initially cooperate with the police and because they have an allegiance to his accomplice. This argument, however, merely addresses the credibility of the witnesses — a determination that rests within the province of the fact finder and that does not justify a departure from a presumptive sentence. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993) (stating that this court shows great deference to a fact finder’s determinations of witness credibility).
Finally, appellant argues that his desire to care for his daughter and to continue his education also justify a downward departure. Even if appellant’s aspirations could constitute mitigation, the mere presence of mitigating factors does not require a trial court to grant a dispositional departure. See Herme v. State, 384 N.W.2d 205, 209 (Minn. App. 1986), review denied (Minn. May 22, 1986) (stating that this court “will not ordinarily interfere with a sentence in the presumptive range, even if there are grounds to justify departure” because the trial court is in the best position to evaluate the circumstances). Moreover, the trial court here stated that it might have been more sympathetic to appellant’s downward-departure motion if he had attended his trial. Because this is not a rare case involving substantial and compelling circumstances that warrant a downward departure, we conclude that the trial court did not abuse its discretion in imposing the presumptive 60-month sentence.
This court will not reverse a conviction based on a denial of a motion for a continuance unless the denial is a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). A reviewing court must determine whether, in light of the circumstances before the trial court when the defendant made the motion for continuance, the decision prejudiced the defendant by materially affecting the outcome of the trial. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980).
Continuances should not be granted upon the verbal statements of counsel, made as were those in question, or upon the mere suspicion that absent witnesses may be needed at the trial. A substantial reason for a continuance must be properly shown.
State v. Fay, 88 Minn. 269, 270, 92 N.W. 978, 979 (1903).
In determining if a trial court’s denial of a continuance to locate a witness violated a defendant’s constitutional rights, this court focuses on whether the defendant showed that he could have found the missing witness within a reasonable time and whether the witness would have provided favorable, noncumulative evidence. State v. King,414 N.W.2d 214, 219 (Minn. App. 1987), review denied, (Minn. Jan. 15, 1988); see also State v. Llloyd, 345 N.W.2d 240, 247 (Minn. 1984) (affirming the trial court’s denial of a one - to two-week continuance so the defendant could persuade uncooperative witnesses to testify, because defendant made no offer of proof as to testimony and did not explain why the witnesses would cooperate if given more time).
Appellant contends that he was prejudiced by the trial court’s denial of his continuance motion because it prevented him from obtaining paid counsel, contacting witnesses, and presenting a better-prepared defense. The trial court denied appellant’s continuance motion stating that the jury had already been impaneled. Not only did appellant request a continuance after the jury was impaneled and before the trial was to begin, but he did so on the mere oral statements of counsel that he wanted more time to obtain witnesses. Appellant’s offer of proof was not sufficient, he did not identify any specific witnesses that needed to be obtained, and he failed to identify what the alleged witnesses’ testimony might be.
Appellant also claims that the trial court abused its discretion by denying his waiver of a speedy trial, because he had to go to trial unprepared and without witnesses. For this proposition appellant relies on two cases concerning whether a defendant has waived his right to a speedy trial, not whether a court abused its discretion in denying a waiver of a speedy trial. See State v. Dehler, 257 Minn. 549, 557, 102 N.W.2d 696, 703 (1960) (holding that an accused has waived his right to a speedy trial when he fails to assert his right arising out of any irregularity in the proceedings before his trial); State v. Genung, 481 N.W.2d 130, 132 (Minn. App. 1992) (finding that defendant waived his right to a speedy trial by agreeing to two continuances and the postponement of the presentment of a grand jury indictment until after the trial of his accomplice), review denied (Minn. Apr. 13, 1992).
Because appellant requested a continuance on the morning of the trial and did not provide a substantial reason why the continuance was necessary or show how this denial prejudiced him, the trial court did not abuse its discretion in denying appellant’s continuance motion.
 The sentencing guidelines grid shows that appellant’s sentence is 49 to 53 months because his offense has a severity level of six and his criminal-history score is five. Minn. Sent. Guidelines IV.