This opinion will be unpublished and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                        Unpublished Opinion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.