This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Kim Marie Holmes,




Filed July 3, 2007


Lansing, Judge


Meeker County District Court

File No. 47-CR-05-457


Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Stephanie Beckman, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355 (for respondent)


Frank Arend Schulte, 617 Snelling Avenue South, St. Paul, MN 55116 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from conviction and sentencing for second-degree assault and terroristic threats, Kim Holmes challenges the district court’s denial of a downward sentencing departure and contends that ineffective assistance of trial counsel requires reversal.  Because the district court did not abuse its discretion by denying a downward departure, and Holmes failed to demonstrate that her trial counsel’s performance was deficient, we affirm.


A Meeker County jury found Kim Holmes guilty of second-degree assault for threatening her fiancé, Dan Johnson, and of making terroristic threats against Johnson and his coworker, Wade Davison.  The confrontation occurred while Johnson and Davison were on their break outside the manufacturing facility where they worked.  

Holmes had driven to Johnson’s workplace to retrieve a digital camera that had a memory card with sexually explicit images of Holmes.  The images could be viewed electronically, and Johnson and Holmes had an agreement that they alone would view the images and that the memory card would not be taken outside the house they shared.  She and Johnson argued about their relationship the night before the incident and when Holmes awoke the next morning she noticed that the camera and the memory card were no longer in the house. 

When Holmes arrived at Johnson’s workplace, she found Johnson and Davison in Johnson’s vehicle in the parking lot.  She approached them, pointing a handgun in their direction and demanding the immediate return of the camera.  While Holmes continued to point the gun at Johnson’s head, he slowly got out of the front of the vehicle, retrieved the camera and the memory card from a bag in the back of the vehicle, and gave them to Holmes.  Holmes returned to her car and left.

The incident was reported, and a deputy from the Meeker County Sheriff’s Department and a Litchfield police officer went to Holmes’s house and confiscated the handgun.  Holmes told the officers that she had gone to Johnson’s workplace to retrieve the camera and that she had pointed the handgun at him.

During the pretrial and trial proceedings, Holmes was represented by a public defender.  After the jury returned a verdict of guilty on one count of second-degree assault and two counts of terroristic threats, Holmes released her public defender and retained a private attorney.  Her substitute attorney moved for a downward departure on the grounds of diminished capacity, and the district court permitted testimony and argument on the motion.  The district court denied a downward departure and imposed the mandatory-minimum executed sentence of thirty-six months for second-degree assault with a handgun and a concurrent fifteen-month sentence for making terroristic threats against Davison.

Holmes appeals the district court’s denial of her motion for a downward departure from the mandatory minimum sentence of thirty-six months for second-degree assault with a gun.  She also contends that she is entitled to a new trial because her trial attorney provided ineffective assistance by failing to assert a defense of diminished capacity.  



A district court may depart from the presumptive sentence only if “identifiable, substantial, and compelling circumstances” support the departure.  Minn. Sent. Guidelines II.D.  We review departure decisions for an abuse of discretion and will not ordinarily interfere with a sentence that is within the presumptive range even if grounds exist that would justify a dispositional or durational departure.  State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).  Only a rare case would warrant reversal of a refusal to depart.  Id. 

A conviction of second-degree assault with a firearm carries a mandatory minimum executed sentence of thirty-six months.  Minn. Stat. § 609.11, subd. 5(a) (2004).  Under the sentencing guidelines, presumptive dispositions and durations correlate with mandatory minimum sentences unless the sentencing grid provides a longer sentence.  Minn. Sent. Guidelines II.E.  Both the guidelines and section 609.11 allow a court to depart from the presumptive sentence, however, if substantial and compelling circumstances are present.  Id.; Minn. Stat. § 609.11, subd. 8(a) (2004).

Following the testimonial hearing on the motion for a downward departure, the district court issued an order explaining its reasons for imposing the presumptive sentence.  The stated reasons include that Holmes did not have a mental impairment that caused her to lack substantial capacity for judgment, that Holmes’s experiences from past abusive relationships did not excuse or mitigate her actions, and that the mandatory minimum sentence should be imposed because substantial and compelling reasons do not support a departure. 

In a memorandum accompanying the order, the district court provided further explanation that corresponded with the statements the court made on the record at the close of the evidentiary hearing.  The district court weighed heavily the danger created by Holmes’s use of a loaded gun in the manufacturing facility’s parking lot where other people were present.  The district court also noted that Holmes held the gun close to Johnson’s face and that the incident occurred several hours after the argument and the transport of the camera and memory card from their home.  Because of the deliberate conduct, the potential for a fatal confrontation, and Holmes’s failure to demonstrate a mental impairment or lack of capacity, the district court concluded that Holmes had not provided a basis to depart downward from the mandatory minimum sentence. 

Holmes has not established that the district court abused its discretion in denying her departure motion and imposing the presumptive sentence.  See State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988) (stating that appellate courts will not generally exercise review of sentences within presumptive range), review denied (Minn. Apr. 15, 1988); State v. Andren, 347 N.W.2d 846, 848 (Minn. App. 1984) (noting that “[p]resumptive sentences are seldom overturned”).  In light of the district court’s imposition of the presumptive mandatory minimum sentence, we find no basis for reversing the sentencing determination. 


The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel.  State v. Wright, 719 N.W.2d 910, 919 (Minn. 2006) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 (1970)).  To succeed on an ineffective-assistance-of-counsel claim, a defendant must show that “counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  Holmes argues that she was denied effective assistance of counsel because her trial attorney failed to present a diminished-mental-capacity defense. 

We note at the outset that Holmes did not provide a transcript of the jury trial.  Without a trial transcript, we are generally unable to review and evaluate the proceedings to ascertain whether unprofessional errors caused prejudice that would alter the ultimate outcome.  Nonetheless, for two significant reasons that are apparent without a transcript, we conclude that trial counsel’s failure to raise a diminished-capacity defense did not amount to ineffective assistance of counsel. 

First, the diminished-capacity doctrine has not been accepted in Minnesota as an available defense.  Cuypers v. State, 711 N.W.2d 100, 105 (Minn. 2006) (stating that “Minnesota has not approved the diminished capacity doctrine”).  Thus the trial attorney’s failure to raise this unrecognized defense could not serve as an objective measure of his competency.  Furthermore, Holmes appears to be claiming that her conduct should be excused because of a history of physical abuse.  But her aggressive acts toward Johnson and Davison are not connected to a physically threatening event.  See State v. Hennum, 441 N.W.2d 793, 797-99 (Minn. 1989) (discussing applicability of battered-woman syndrome to claim of self-defense).

Second, when Holmes’s new counsel raised diminished capacity as a basis for a downward departure, the court held a testimonial hearing to determine whether Holmes had a diminished capacity or had suffered battering.  After hearing sworn testimony the district court found that the relationship between Johnson and Holmes was not abusive and that her claim of diminished capacity lacked merit.  Thus it is doubtful that the claim of diminished capacity could have succeeded even if it were an available defense in Minnesota.  Holmes has not demonstrated that trial counsel’s failure to raise the defense amounted to substandard representation or could reasonably have altered the outcome of her trial.