This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Charles James Simon,
Hennepin County District Court
File No. 04003857
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin,
Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.
Appellant challenges the district court’s denial of his motion for a downward sentencing departure. Because the district court did not abuse its discretion, we affirm.
Appellant lived at the home of Rebecca Jarvis. One night, appellant saw a gun in the gutter, picked it up, brought it in the house, and unloaded it. The next morning when appellant awoke, Jarvis had returned home with her friend, Ethan Goustin. As Goustin walked out of the home, Jarvis told appellant that Goustin had a gun. Appellant said that he also had a gun. As appellant watched, Jarvis walked out of the house and Goustin began to shake her back and forth. Appellant located the gun that he had found the night before, pointed the gun in the air, and threatened to shoot Goustin. Goustin called the police, who came and arrested appellant. Appellant was convicted of being a prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002). Appellant moved for downward dispositional and durational departures, arguing that he was amenable to probation and that his crime was less serious than the typical prohibited-person-in-possession-of-a-firearm offense. The district court denied appellant’s motion and sentenced him to the mandatory minimum 60 months under Minn. Stat. § 609.11, subd. 5(b) (2002). This appeal follows.
argues that the district court abused its discretion in denying his motion for
a downward sentencing departure. A
district court’s decision not to depart from the presumptive sentence is
reviewed for an abuse of the district court’s broad discretion, and “it would
be a rare case which would warrant reversal of the refusal to depart.” State
v. Kindem, 313 N.W.2d 6, 7 (
The first issue is
whether the district court abused its discretion in denying appellant’s request
for a downward dispositional departure.
A defendant’s amenability to probation can justify a downward
dispositional departure. State v. Trog, 323 N.W.2d 28, 31 (
Here, appellant argues that he is amenable to probation because he was cooperative with police at his arrest, gave a statement at the county jail, and attended numerous hearings. Appellant also claims that he has strong family support, that he has enrolled in classes with a “life coach,” and that he has maintained a job and a residence. Based on the pre-plea investigation, a probation officer recommended that appellant be placed on probation.
In denying appellant’s motion, the district court noted appellant’s extensive criminal record, stating that he had been committed to prison at least ten times. The district court also concluded that appellant’s claim that he had made positive changes in his life was undermined by his admission that he was inebriated from alcohol and cocaine use on the day of the offense. The district court considered factors weighing both in favor of and against a downward departure. Based on the record, we conclude that this is not the rare case requiring reversal of the district court’s refusal to depart.
second issue is whether the district court’s denial of appellant’s motion for a
downward durational departure was an abuse of discretion.
is a crime for certain prohibited persons to “possess a . . . firearm.”
argues that his culpability is mitigated by the fact that he picked up the gun
to prevent it from falling into the hands of young people in the neighborhood,
that he never expected to use the gun, and that he planned to turn it over to
the police. But appellant conceded that
he told police that he also considered cleaning up the gun to sell or trade
it. Appellant argues that he only
brandished the gun and pointed it at Goustin to protect Jarvis. As the state points out, this conduct
constitutes more than merely possessing the firearm. The jury’s rejection of this defense indicates
that appellant’s possession offense is similar to many other such offenses.
The district court did not abuse its discretion in denying appellant’s motion for a downward durational departure.
 In State v.
Barker, the Minnesota Supreme Court considered a sentence under Minn. Stat.
§ 609.11, subd. 5(a) (2004), authorizing a mandatory minimum sentence for
a crime committed while using or possessing a firearm. 705 N.W.2d 768, 770 (