This opinion will be unpublished and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
Lisa Jill Olson,
Affirmed in part and reversed and remanded in part
Carver County District Court
File No. K0001504
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael A. Fahey, Carver County Attorney, Government Center, Justice Center, 600 East Fourth Street, Chaska, MN 55318 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this sentencing appeal, appellant Lisa Jill Olson argues that the district court abused its discretion by determining that mitigating circumstances surrounding a first-degree burglary offense did not warrant a downward durational departure from the presumptive sentence and that the court erred when it imposed a 15-month sentence for a deprivation-of-parental-rights conviction. We affirm the first-degree-burglary sentence but reverse the deprivation-of-parental-rights sentence and remand for imposition of a sentence of one year and one day.
On September 11, 2000, Olson was at the home of J.F. When J.F. woke up on September 12, Olson was gone, and J.F.’s car was missing.
Around 3:00 a.m. on September 12, Olson entered a home where she had lived for a year and a half with J.G. Following a court hearing on August 31, 2000, Olson had been ordered excluded from the home until she participated in an anger-management program and met with a Carver County Community Social Services employee to discuss chemical-dependency treatment options. The court had also ordered that Olson and J.G.’s infant daughter, C.G., remain in J.G.’s custody.
J.G. awoke to find Olson standing in the kitchen. After J.G. got dressed, Olson confronted him with a knife in each hand and told him to “get [C.G.]” The knives were in the kitchen when Olson entered the home. J.G. went to C.G.’s room, and Olson followed him with a knife pointed at his lower back. J.G. handed C.G. to Olson and then went to the living room and sat down. After talking with Olson in the living room, J.G. went to the kitchen and got a bottle to feed C.G., who was crying. Olson changed C.G.’s diaper, J.G. handed Olson the bottle, and Olson fed C.G. Olson then handed C.G. to J..G., and held a knife while sitting next to him.
Olson told J.G. to put C.G. back in her crib and again followed J.G. to C.G.’s bedroom with the knives pointed at his back. After laying C.G. down, J.G. saw an opportunity to escape. He ran out of the room, shut the door behind him, and ran out of the house. Olson chased him at first but soon gave up. J.G. ran to a neighbor’s house to call 911.
Police who responded to the call did not find Olson or C.G. The police found “an eight-inch kitchen or butcher knife” in the living room next to a chair.
Police recovered J.F.’s car outside Menomonie, Wisconsin, on September 12, and FBI agents arrested Olson in Hammond, Indiana, three days later. C.G. was with Olson and was not harmed.
As a result of this course of events, Olson was convicted of several criminal offenses. After denying Olson’s requests for dispositional and durational departures, the district court sentenced Olson to concurrent prison terms of 48 months for first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(b) (2000) (burglar possesses a dangerous weapon when entering or while in building); 15 months for depriving another of custodial or parental rights in violation of Minn. Stat. § 609.26, subds. 1(1), 6(a)(1) (2000) (concealing minor child from person with right to parenting time or custody); and 12 months for possession of stolen property in violation of Minn. Stat. §§ 609.53, subd. 1, 609.52, subd. 3(4) (2000) (possession of stolen vehicle worth more than $500 but less than $2,500).
1. A departure from the sentencing guidelines rests within the discretion of the trial court and will not be reversed absent a clear abuse of that discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). Only in “rare” cases 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). Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).
A downward durational departure is justified where the defendant’s conduct is significantly less serious than that typically involved in the commission of the offense. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). The sentencing guidelines provide a nonexclusive list of factors justifying a downward departure; factors relied on must somehow tend to excuse or mitigate the offender’s culpability for the offense. Herme v. State, 384 N.W.2d 205, 208 (Minn. App. 1986), review denied (Minn. May 22, 1986); Minn. Sent. Guidelines II.D.2.a.
A mitigating factor exists where the offender, because of a physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. Minn. Sent. Guidelines II.D.2.a.(3). Olson contends that the court should have departed downward because she was diagnosed with bipolar disorder. But only an extreme mental impairment justifies mitigating a sentence. State v. Wilson, 539 N.W.2d 241, 247 (Minn. 1995) (citing State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992)); see State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (finding years of abuse by victim substantial grounds to mitigate culpability). In Lee, although the defendant was depressed, angry and impulsive, the court found that he did not suffer from an extreme mental impairment, because “the experts overwhelmingly concluded that appellant’s mental condition did not deprive him of control over his actions.” 491 N.W.2d at 902. Similarly in Wilson, the supreme court found that although the defendant was depressed and angry, he “failed to present sufficient evidence that he suffered such an extreme impairment.” 539 N.W.2d at 247.
Olson presented no expert testimony regarding her diagnosis of bipolar disorder or how it affected her judgment. Other than her own testimony that she had been depressed and suicidal before treatment and that after receiving treatment she was much calmer and less impulsive, Olson presented no evidence that her bipolar disorder affected her capacity for judgment. Because Olson did not show that, as a result of her mental impairment, she lacked substantial capacity for judgment, the district court did not abuse its discretion by denying Olson a downward departure based on a mental impairment.
Olson also argues that her actions do not rise to the level of a typical first-degree burglary because (1) she lived in the home before the incident and was excluded from it by an order issued at a hearing that she did not attend, (2) she did not bring the knives she used during the incident into the home, and (3) one of the knives was a butter knife.
Although Olson had lived in the home before this incident, a court had ordered her excluded from the home, and even though Olson did not attend the hearing that led to the order, she does not claim that she was not aware of the order. Consequently, when Olson entered the home, she had no right to do so.
Olson’s first-degree burglary sentence was imposed for violating Minn. Stat. § 609.582, subd. 1(b) (2000), which provides that the offense occurs if the burglar possesses a dangerous weapon “when entering or at any time while in the building.” Under this statute, it is immaterial whether the burglar brings the dangerous weapon into the building or obtains the weapon after entering the building; all that is required is possession while in the building. And because it is not necessary for the burglar to possess more than one dangerous weapon, it is immaterial whether one of the knives Olson used was a butter knife. She used two knives, and she does not contend that the other knife she used was not a dangerous weapon.
This is not the “rare case” contemplated by Kindem. The factors Olson cites do not make her conduct significantly less serious than that typically involved in the commission of first-degree burglary. The district court did not abuse its discretion by imposing the presumptive sentence.
2. Olson contends that the district court erred by imposing a 15-month sentence for her deprivation-of-parental-rights conviction. The presumptive guidelines sentence for this severity-level-one offense, committed by an offender with a criminal history score of two or less, is one year and one day. Minn. Sent. Guidelines IV, V. Olson had one criminal history point after she was sentenced on the burglary conviction. The district court provided no written findings to support an upward departure, and it appears that the court inadvertently imposed the guidelines sentence for depriving another of custodial or parental rights while in possession of a dangerous weapon in violation of Minn. Stat. § 609.26, subds. 1(1), 6(a)(2)(i) (2000), which is an offense for which Olson was charged but found not guilty. Because the general rule under Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985), is that “[i]f no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed,” we reverse the 15-month sentence and remand for imposition of the presumptive sentence of one year and one day.
3. In a pro se supplemental brief, Olson has challenged or attempted to clarify several factual assertions that appear throughout the record. We have considered the factual issues she has raised, and they do not change our analysis of the sentencing issues raised in her appeal.
Affirmed in part and reversed and remanded in part.