This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





John Reagan Soukup,



Filed December 21, 2004


Harten, Judge


Olmsted County District Court

File No. K6-03-2487


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


John M. Stuart, State Public Defender, Margaret R. Millington, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N




Appellant challenges his sentence for second-degree assault with a dangerous weapon, arguing the district court abused its discretion in declining to grant his request for a downward dispositional departure.



Appellant John Soukup was at a bar in March 2003 when he met two women, H.M. and L.H.  The three left the bar together, purchased beer, and went to L.H.’s apartment where appellant fell asleep.

According to appellant, when he woke he could not find his car keys.  He asked H.M. and L.H. to give him his keys, but they refused.  Appellant took the beer they had purchased earlier and said that if the two women did not give him his keys, he was going to throw the beer away.  The disagreement escalated and the women threw appellant on the floor and hit him with their fists.  Appellant then got up, grabbed a baseball bat that was leaning against the wall, and while either standing or kneeling hit H.M. on the back of the head.  According to a police report, H.M. told the officers that appellant had done this “because they would not be his ‘girlfriends’ for the night.”

Appellant pled guilty to second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (2002).  Appellant moved for a downward dispositional departure, arguing that he was amenable to probation and, because of mental impairment, he lacked substantial capacity for judgment when the offense was committed.  The district court, after reviewing a presentence investigation report (PSI) and considering the parties’ arguments, denied appellant’s motion and sentenced him to the presumptive 27 months in prison.


            The decision whether to depart from the sentencing guidelines is within the district court’s discretion.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  We will not interfere with the district court’s decision to impose a presumptive sentence absent a clear abuse of that discretion.  State v. Casady, 392 N.W.2d 629, 634 (Minn. App. 1986), review denied (Minn. 24 Sept. 1986).

1.         Low Intelligence

            Appellant argues that the district court abused its discretion by not granting his motion for a downward departure based on his low intelligence.  The Minnesota Sentencing Guidelines provide that a lack of “substantial capacity for judgment” may be used as a mitigating factor in sentencing.  Minn. Sent. Guidelines II.D.2.a.(3); accord State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (21 year history of mental illness deprived husband of capacity for judgment in strangulation of wife); State v. Martinson, 671 N.W.2d 887, 893 (Minn. App. 2003) (district court did not abuse its discretion in imposing a downward durational departure where record showed defendant suffered paranoid schizophrenia at all relevant times, including at the time of the incident).  Only a “rare case” warrants reversal of a district court’s refusal to decrease a sentence where mitigating circumstances are present.  Kindem, 313 N.W.2d at 7-8.

A careful review of the record demonstrates that the sentencing court took all of appellant’s evidence into account.  For reasons substantiated in the confidential portion of the PSI, the district court’s denial of appellant’s motion for a downward dispositional departure was proper.  This is not a rare case that warrants reversal of a district court’s exercise of discretion.

2.         Amenability to Probation

Appellant argues that his ability to comply with probation conditions entitled him to a departure.  A downward departure is justified where an adult is “particularly amenable to treatment in a probationary setting.”  State v. B.Y., 659 N.W.2d 763, 770 (Minn. 2003).  To determine whether a defendant is amenable to individualized treatment in a probationary setting, courts look at the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

The record shows that the district court exercised its discretion with care.  The court reviewed materials supporting appellant’s claim that he was willing and able to comply with probation.  But the PSI showed that appellant had been involved in assault-type behavior on at least three previous occasions, did not show remorse, and did not have support from family or friends.  The district court acted within its discretion by concluding that the need for confinement outweighed policies favoring a downward dispositional departure.

3.         Victim’s Culpability

Appellant also argues that he is entitled to a departure because H.M. acted as an aggressor and he acted in self-defense.  Mitigating factors that may be considered in deciding whether to grant a departure include whether “[t]he victim was an aggressor in the incident.”  Minn. Sent. Guidelines II.D.2.a.(1).  But a district court is not required to depart when a defendant claims he was not the initial aggressor.  See State v. McKissic, 415 N.W.2d 341, 345-46 (Minn. App. 1987) (district court did not abuse its discretion by imposing mandatory minimum sentence for crime involving use of firearm, where defendant carried a loaded gun with extra ammunition when he went out drinking, and where defendant’s claim of self-defense was unclear).

Appellant stated during his plea hearing that the two women, H.M. and L.H., pushed him to the floor hitting him with their fists and that he grabbed the bat and hit H.M. to protect himself.  But appellant admitted that prior to grabbing the bat he got away from the women and had an opportunity to leave.  This admission negates appellant’s claim of self-defense.  See State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967) (elements of self-defense include the duty to retreat if reasonably possible).  The district court was free to reject appellant’s testimony that the victim was the aggressor and did not abuse its discretion in denying appellant’s request for a downward dispositional departure.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.