This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Kelly James Leith,



Filed July 2, 2002

Klaphake, Judge


Dakota County District Court

File No. K2011383


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


James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)


John M. Stuart, State Public Defender, Sara Martin, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Kelly James Leith pleaded guilty to making terroristic threats against his estranged wife and kidnapping his wife’s male friend.  See Minn. Stat. §§ 609.713, subd. 1, 609.25, subds. 1(3), 2(2) (2000).  The district court imposed the presumptive 27-month sentence for terroristic threats and a consecutive 130-month term for kidnapping, which represents an upward durational departure from the presumptive sentence of 108 months.  The district court based its departure on appellant’s conduct in violating the victim’s zone of privacy and exhibiting particular cruelty toward the victim.

            Because appellant treated the male victim with particular cruelty by hog-tying him and leaving him in a dark basement for several hours, we affirm the district court’s sentencing departure on that basis alone.


            A district court is afforded great discretion in its sentencing decisions and a reviewing court cannot simply substitute its judgment for that of the district court.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  To warrant a departure from the sentencing guidelines, however, substantial and compelling circumstances must be cited by the district court and must be present in the record.  Id.  The district court must determine whether “the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  Id. at 88-89 (quotation omitted).

            Appellant argues that because the male victim was not beaten or removed from the home to an unsafe location, appellant’s conduct was less egregious than the typical kidnapping with an unsafe release.  Appellant claims that the victim was not subjected to gratuitous infliction of pain or placed in any danger.  He further claims that hog-tying the victim did not make this offense substantially more serious than the typical offense because the binding was not done as a tactic to make the victim more vulnerable so that appellant could commit another offense on him; rather, appellant bound the victim in order to complete the offense of kidnapping.  Appellant urges this court to use its “collective, collegial experience” to conclude that this case is less serious than the typical unsafe release kidnapping.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (quotation omitted).

            A sentencing court may consider what happened to a victim during a kidnapping.  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996).  Here, appellant threatened the victim with a crowbar, led him into the basement, and forced him to lie on the floor on his stomach.  Appellant then tied the victim’s hands and feet together, behind his back.  The victim was left there for several hours in the dark, with the basement door tied shut from the outside.  While there, the victim was forced to listen while, upstairs, appellant physically and sexually assaulted his estranged wife, with whom the victim was intimately involved.  During the incident, the victim was fearful for his life, and he suffered psychological trauma that has required continuing counseling.  These facts support an upward departure on the grounds that the victim was treated with particular cruelty.  See State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (particular cruelty may support upward departure); State v. Smith, 541 N.W.2d 584, 589-90 (Minn. 1996) (same); State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (durational departure upheld where crime caused psychological injury that required future counseling), review denied (Minn. Mar. 31, 1994).

            Appellant further asserts that the district court inappropriately relied upon the dismissed charges involving criminal sexual conduct to justify its durational departure.  We disagree.  The district court did not cite the dismissed charges as a basis for its decision, and the evidence in the record on the kidnapping offense fully justifies the upward durational departure imposed here.

            Finally, the state claims that in addition to the existence of substantial and compelling reasons, appellant agreed to an upward departure when he accepted a 142-month cap on his sentence in his plea agreement.  However, the supreme court recently held that a sentencing departure must be supported by substantial and compelling circumstances and that “[a] plea agreement standing alone * * * does not create such circumstances in its own right.”  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Because the district court here did not rely on the plea agreement, but cited other substantial and compelling circumstances to support its departure decision, Misquadace does not control this case.

            Appellant exhibited particular cruelty toward the victim during the kidnapping, and we affirm the district court’s upward durational departure.