This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994). State of Minnesota in Court of Appeals C6-95-1870 Thomas R. Gray, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed May 14, 1996 Affirmed Amundson, Judge Clearwater County District Court File No. K5-95-1870 Harlan Goulett, Stoneking & Goulett, 3540 Multifoods Tower, Minneapolis, MN 55402 (for petitioner) Hubert H. Humphrey, III, Attorney General, Thomas Erik Bailey, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent) Kip O. Fontaine, Clearwater County Attorney, 199 North Main Avenue, PO Box Q, Bagley, MN 56621 (for respondent) Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Willis, Judge. Unpublished Opinion AMUNDSON, Judge (Hon. Paul E. Rasmussen, District Court Trial Judge) Thomas Gray challenges the trial court's denial of his petition for postconviction relief, arguing that he had ineffective assistance of counsel and that the trial court erred Facts Appellant Thomas Gray had been married for 13 years and had four children between the ages of 3 and 10 when he admitted to killing his wife, shooting her repeatedly in the head and chest. Gray testified that after he injured his back and lost his job, his feelings of jealousy and fear that his wife was having an affair intensified. He began to believe that someone was coming into their house at night. Gray also began to smell what he described as ``vaginal'' odors on some of the furniture in the living room. Gray believed that these incidents indicated that his wife was having an affair with her father during the night. He told a friend about his suspicions and said that if he ever found her with another man he would kill her. A few days after learning that his disability claim had been denied, Gray woke up around 6:30 a.m. and felt that something was wrong. He got out of bed, leaving his wife still asleep, and walked out to the mailbox at the end of the driveway. He noticed tire tracks in a second driveway that the family rarely used, which caused him to believe that someone may have been at the house during the night. When Gray entered the house, he went into the living room, where he smelled ``vaginal'' odors around a chair. Gray returned to the bedroom and asked his wife if she had something to tell him. When she responded that she did not, Gray hit her two or three times in the head with a closed fist. At some point during the confrontation, the oldest child was awakened by his mother screaming. He heard his mother say ``don't do this'' and his father respond ``I can do it if I want to.'' Another child heard a loud bang. Gray proceeded to fire nine shots at his wife as she lay in bed. The shots were fired from a .22 caliber Ruger semiautomatic pistol from a distance of two to three feet. His wife was hit five times, three shots hit her in the head and two hit her in the chest. The other four shots hit the wall behind her head. Gray then left the bedroom, locked the bedroom door, and put the gun under the seat in the car. He awakened the children, told them that their mother was in a bad situation, and told them to get ready. The two oldest children testified that they were afraid to ask their father what was wrong because they were afraid that something bad would happen to them. Gray dropped the children in front of the house of a family friend and drove to Bemidji in search of legal advice. A psychological examination was arranged, and the psychologist concluded that Gray suffered from delusional paranoid disorder, jealous type. After the psychological evaluation, Gray turned himself in. Two weeks after his arrest, Gray moved for a Rule 20 examination to determine his competency to stand trial and his mental state at the time of the crime for the purposes of a mental illness defense. The examination was conducted at the state hospital. The psychiatrists agreed with the previous diagnosis, delusional paranoid disorder-jealous and persecutory types. The evaluators concluded that Gray was competent to stand trial, understood the charges against him, and could understand the proceedings. The report also concluded that Gray's condition did not support a M'Naughten defense because he understood both the nature and the wrongfulness of his actions. The trial court adopted the state hospital report, and Gray did not object. Gray was found guilty of second-degree intentional murder and sentenced to 480 months, which is a 57% upward durational departure from the presumptive sentence. Gray's petition for postconviction relief was denied. This appeal followed. Decision On appeal, a postconviction proceeding is reviewed to determine if there is evidence sufficient to support the trial court's findings, and the trial court's decision will not be reversed unless there has been an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Ineffective Assistance of Counsel Gray contends that the representation of his trial counsel fell below the relevant standard because his attorney never ordered an independent psychological evaluation and never used Gray's mental illness as a defense or a mitigating factor for sentencing. To succeed with a claim of ineffective assistance of counsel, a defendant must prove that the representation of counsel ``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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'' 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, 2068 (1984) ). Further, a defendant must ``overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.''' State v. Strodtman, 399 N.W.2d 610, 616 (Minn. App. 1987) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064), review denied (Minn. Mar. 25, 1987). Gray contends that his counsel was ineffective because the defenses put forth were completely without foundation and harmful to Gray's interests. Gray argues that his trial counsel should have ordered an independent psychological evaluation and should have presented a mental illness defense. In the presentation of a mental illness defense, the burden falls on the defendant to prove the defense by a preponderance of the evidence. State v. Linder, 304 N.W.2d 902, 907 (Minn. 1981). A defendant is only excused from responsibility for his actions if he suffers from a mental illness that causes him ``not to know the nature of his act or that it was wrong.'' Id. The trial court, in denying Gray's petition for postconviction relief, stated that none of the psychological evaluations indicated that Gray was incompetent to stand trial. Further, none of the professionals indicated that Gray did not know right from wrong and did not know the nature of his act. In fact, the psychologists from the state hospital stated that they would not support a M'Naughten defense. Finally, the postconviction court noted that Gray's attorney presented Gray's mental illness as a mitigating factor at sentencing. The court, in light of these findings, concluded that Gray had failed to show that his attorney's representation fell below an objective standard of reasonableness. The record indicates that Gray's attorney arranged for a psychological evaluation before Gray turned himself in and requested that Gray undergo a psychiatric evaluation to determine his competency to stand trial. The report from the state hospital indicated that Gray understood the charges against him, could aid in his own defense, and was competent to stand trial. The report also stated that it did not support a M'Naughten defense because Gray understood the nature and wrongfulness of his actions at the time of the commission of the crime. Further, the record indicates that during the sentencing portion of the proceedings, Gray's attorney put forth an argument for a downward departure because of Gray's mental condition. Thus, the record supports the findings made by the postconviction court, and we conclude that the postconviction court did not abuse its discretion in concluding that Gray failed to establish that his representation fell below an objective standard of reasonableness. Sentencing Departure Gray contends that the trial court abused its discretion by finding that there were severe substantial and compelling circumstances to justify an upward durational departure of more than double the presumptive sentence. The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). An upward departure is within the sentencing court's discretion only if ``substantial and compelling'' aggravating circumstances are present. Id. If there is evidence in the record to support the trial court's findings that substantial and compelling circumstances exist, ``this court will not modify the departure unless it has a `strong feeling' that the sentence is disproportional to the offense.'' State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984). The trial court, in sentencing Gray to 480 months, found the following substantial and compelling circumstances to justify the upward departure: (1) the psychological impact on the children, who were all in bedrooms just down the hall; (2) that the offense was committed in the presence of the children; (3) that Gray violated the trust between himself and his wife; (4) that his wife was particularly vulnerable because she was just waking up and her children were just down the hall; and (5) the offense was committed with particular cruelty. First, the record indicates that the children were present, two of them did wake up, at least one of them heard his mother scream, and one other heard a loud bang. The testimony also indicated that the children have been psychologically traumatized by being in the house when their mother was killed. See State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (while children present at time of crime against mother ``maybe were not technically victims of the crime, they were victims in another sense,'' making the offense a ``particularly outrageous one''). Second, the trial court correctly determined that the abuse of a trust relationship may also be an aggravating factor. See State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). We agree that the relationship between a husband and wife constitutes such a relationship. Third, the trial court was also correct in determining that the presence of children is an aggravating factor because ``the presense of a child in another room is analogous to a reduced physical capacity.'' See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). In addition, the record supports the trial court's finding that Gray's wife was just waking up when she was shot, which contributed to her vulnerability. Finally, the trial court found that the crime was committed with particular cruelty. We conclude that waking someone up, punching them in the face, and shooting them five times at close range while their children are just down the hall constitutes particular cruelty. Thus, we conclude that the trial court did not abuse its discretion in finding that there were severe aggravating circumstances to justify an upward departure.