This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ottertail County District Court
File No. K301197
Mike Hatch, Attorney General, Stuart T. Alger, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Michael Scott Johnson appeals his conviction of first-degree burglary, arguing that the district court committed plain error by instructing the jury on first-degree burglary without identifying what crime he allegedly intended to commit inside the dwelling. Johnson also challenges his sentence, arguing that the district court abused its discretion by denying his motion for a durational or dispositional departure from the sentencing guidelines. We affirm.
Johnson and others attempted to confront a man who was accused of raping Johnson’s friend. The group went to the accused’s house twice on the evening the accusation was made. The first time, the group pounded on the door and told the accused’s sister, who opened the door, to send the accused out so they could talk to him. When the accused’s sister told the group to leave and threatened to call the police, one of the men said, “Well, he needs to come out here. We’re going to kill him.” The men returned later. The accused’s girlfriend went onto the porch. Johnson ran toward her. The accused heard Johnson screaming “I’m going to get you; I’ll kill you.” The accused pulled his girlfriend into the house, but before he could close the door, Johnson got his left leg and arm inside the house. The accused was able to push him out, closed and locked the door and told Johnson, through a window in the door, to “get out of here.” Johnson shattered the door window with his fist and left with his companions.
Johnson was charged with first-degree burglary, attempted first-degree burglary, and terroristic threats. He was convicted of all three charges and was sentenced to the presumptive sentence for first-degree burglary based on his criminal history score of four. This appeal from the conviction of burglary in the first degree followed.
D E C I S I O N
1. Jury Instruction
Johnson argues that the district court’s failure to specify or define the crimes he allegedly intended to commit in the accused’s dwelling when instructing the jury on first-degree burglary was plain error that affected his substantial rights.
A jury instruction is in error if it materially misstates the law. State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). When an appellant failed to object to the instruction at trial, this court may only reverse if “the instructions were misleading or confusing on fundamental points of law.” Id.
The jury was instructed on first-degree burglary in language almost identical to the language of the Minnesota Jury Instructions Guide, except that the CRIMJIG directs the district court to identify and define the crime that a defendant allegedly intended to commit inside the dwelling as the fourth element of first-degree burglary. In this case, the district court told the jury that the fourth element of first-degree burglary is:
[T]he defendant either entered the dwelling with the intent to commit a crime or did commit a crime while in the dwelling. It is not necessary that the intended crime was actually completed or attempted, but it is necessary that the defendant had the intent to commit that crime at the time that the defendant entered the dwelling.
An instruction that does not recite a CRIMJIG verbatim is not per se a misstatement of law. State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980). The instruction given did not misstate the law. The supreme court has stated that proof of intent to commit a crime in connection with proof of burglary always rests “on a permissible inference from the facts proved.” State v. Crosby, 277 Minn. 22, 25, 1521 N.W.2d 297, 300 (1967). And we have upheld a conviction of first-degree burglary despite the district court’s failure to identify the crime the defendant intended to commit inside the dwelling:
The circumstances shown—persistent, surreptitious attempts to make a forced entry after [defendant] had expressed sexual designs on the houses’ occupant—exclude any rational inference that [defendant] had a non-criminal intent in attempting entry.
State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996). Similarly, in this case, there is overwhelming evidence that Johnson’s intent in attempting to and partially entering the dwelling was to commit an assault. The district court’s failure to instruct the jury on the specific crime Johnson intended to commit inside the dwelling did not affect Johnson’s substantial rights and is not plain error entitling him to a new trial.
Johnson argues that the nature of his offense, combined with his history of untreated mental illness, warranted mitigation of the presumptive sentence for first-degree burglary. The district court’s sentencing decision will not be overturned absent a clear abuse of discretion. State v. Schmidt, 601 N.W.2d 896, 898 (Minn. 1999). Appellate courts will not normally interfere with a sentence that falls within the presumptive sentencing range even if there are grounds that would justify a departure. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The mere fact that mitigating factors are present does not require the district court to depart from the sentencing guidelines. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
In this case, the district court considered factors favoring a downward departure and those supporting an upward departure and concluded that none of the factors compelled a departure from the presumptive sentence. In considering whether Johnson’s mental illness made him less culpable, the district court heard various experts on mental illness who did not believe that Johnson needed to be committed for his illness and Johnson’s attorney admitted that Johnson’s mental illness did not rise to the level of the M’Naughten standard for mitigation of culpability. The district court determined that Johnson could not be committed to treatment, that he lacks the necessary willingness to follow through with treatment on his own, and that the more structured mental health services offered to prison inmates would better serve Johnson’s needs.
In his pro se brief, Johnson argues that he should receive a lighter sentence because he agreed to cooperate with local authorities in exchange for their promise to request a downward departure. But Johnson did not make this argument to the district court at the sentencing hearing and nothing in the record supports his assertion that the drug task force made any promises related to sentencing for burglary in this case. The district court did not abuse its discretion by imposing the presumptive sentence.
 Johnson did not object to the jury instruction at trial but seeks review under Minn. R. Crim. P. 31.02, which provides that plain errors may be considered on appeal although they were not brought to the attention of the district court. Plain error is defined as error that is plain, that affects substantial rights, and that is addressed to ensure fairness and integrity of the judicial proceedings. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).