This opinion will be unpublished and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

     State of Minnesota,


Miles Gilbran Johnson,
     May 14, 1996
Norton, Judge

St. Louis County District Court

File No. KX-94-600902

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant
County Attorney, 100 No. 5th Avenue W, #501, Duluth, MN 55802 (for

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant
Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN
55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and
Short, Judge.
                        Unpublished Opinion

NORTON, Judge (Hon. Terry C. Hallenbeck, District Court Trial Judge)

Appellant pleaded guilty to felony theft over $2,500. He challenges his
executed sentence of 36 months, a dispositional and durational departure
from the presumptive 18-month probationary sentence for this crime, given
appellant's criminal history score of2. The trial court based its sentence
on evidence demonstrating that appellant is unamenable to probation and on
the court's determination that appellant's conduct was significantly more
serious than conduct typically involved in the commission of the crime for
which he was being sentenced. We affirm.

The victim's daughter invited 18-year-old appellant Miles Gilbran Johnson
and two other friends to the victim's home late one night. The victim's
daughter went to sleep, while appellant and one of his friends played pool
and watched television. The next day, the victim reported $48,000 in cash
and several items of jewelry stolen from his bedroom safe. Two days later,
a clerk at a Shopko store alerted Duluth police that appellant and his
friend had paid for $553-worth of goods with $50 bills. Duluth police
questioned appellant and his friend. The police retrieved $925 from
appellant and $210 from appellant's friend.

After their release, appellant and his friend embarked on a nation-wide
vacation, covering their costs with the money stolen from the victim.
Appellant and his friend eventually were arrested in Florida. Appellant
testified that, aside from the money confiscated by Florida and Duluth
police, none of the victim's money remained, thus leaving the victim with a
$46,606 loss.

Appellant contends the trial court abused its discretion when it ordered a
sentence that was both a dispositional and durational departure from the
presumptive sentence. The Minnesota Sentencing Guidelines provide that the
district court ``shall'' use the presumptive sentence in the guidelines
``unless the individual case involves substantial and compelling
circumstances.'' Minn. Sent. Guidelines, II.D. The decision whether

substantial and compelling circumstances exist for a departure from the
sentencing guidelines is within the trial court's discretion and will not
be reversed absent a clear abuse of discretion. State v. Garcia, 302
N.W.2d 643, 647 (Minn. 1981). If the record supports the finding that
substantial and compelling circumstances exist, the reviewing court should
not modify the departure unless it has a ``strong feeling'' that the
sentence is disproportional to the offense. State v. Schantzen, 308
N.W.2d 484, 487 (Minn. 1981).

The trial court found that appellant's unamenability to probation was a
substantial and compelling circumstance justifying a dispositional
departure from the presumptive sentence. We agree. The sentencing court may
use unamenability to probation as a factor in deciding whether to depart
dispositionally. State v. Brigger, 316 N.W.2d 512, 513 (Minn. 1982).

Appellant's criminal record showed he was 18 years old, already had seven
prior convictions in adult court, and was on probation when he committed
this theft. This evidence supports the finding appellant was unamenable to
probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982)
(stating that factors to consider when deciding whether defendant is
amenable to probation include: defendant's age, prior record, remorse,
cooperation, attitude while in court, and support of friends and/or
family). The probation officer's report and recommendation that appellant
serve his sentence also support the imposition of an executed sentence
here. See State v. Blegen, 387 N.W.2d 459, 464 (Minn. App.
1986) (sentencing court uses probation officer's opinion for dispositional
purposes, but not for durational departure), review denied (Minn.
July 31, 1986); see also State v. Doherty, 419 N.W.2d 624,
628 (Minn. App. 1988) (stating that appellate court ``may affirm the
dispositional departure if there is support for the decision in either the
sentencing report or the record''). The trial court did not abuse its
discretion in relying on these facts to depart dispositionally.

Appellant claims the trial court abused its discretion when it further
penalized him by imposing a double durational departure. He argues that the
trial court erroneously construed the theft as a ``major economic offense''
and a reason for departure. To the contrary, the trial court did not rely
on the construction of the appellant's theft as a ``major economic
offense'' to depart durationally, but instead relied on the relative
seriousness of appellant's theft and appellant's exploitation of trust.

In deciding whether to depart durationally, the sentencing court had to
decide whether appellant's conduct ``was significantly more or less serious
than that typically involved in the commission of the crime in question.''
State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); see also
State v. Carr, 361 N.W.2d 397, 402 (Minn. 1985) (upholding
durational departure because defendant's conduct was more serious than
usual receipt of stolen property offense where he paid drugs for stolen
property, and offenses occurred over period of time and involved many
victims); State v. Hagen, 361 N.W.2d 407, 414 (Minn. App. 1985)
(affirming departure where offense was more serious than usual second-
degree arson because defendant intentionally planned to gain economically
from it), review denied (Minn. Apr.18, 1985).

In assessing the seriousness of appellant's crime, the trial court properly
compared the value of the property stolen with the statutory amount.
See State v. Myers, 416 N.W.2d 736, 738 (Minn. 1987) (court
may consider value of stolen property when assessing seriousness of crime).
The test is whether the value of the property is ``substantially and
significantly more than that involved in the typical case.''
State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).

Here, appellant stole approximately $46,600, nearly 19 times the statutory
minimum of the crime for which he was sentenced. See Minn. Stat.
𨺹.52, subd. 3(2) (1994) (theft of $2,500 or more). The value of the
stolen property supports the trial court's determination that the crime

appellant committed was significantly more serious than the usual theft of
over $2,500, thus justifying a double durational departure in sentencing.
Cf. State v. Pittel, 518 N.W.2d 606, 608-09 (Minn. 1994)
(theft of nearly $25,000 justified upward departure); Myers, 416
N.W.2d at 738 (affirming upward departure where defendant possessed stolen
property valued at 40 times statutory amount).

The trial court determined that a durational departure was also justified,
because appellant abused the position of trust he was accorded as a guest
in the victim's home. A crime committed in the victim's home by an invitee
may be considered an exploitation of trust which constitutes an aggravating
factor in determining whether to depart durationally. State v. Volk,
421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18,
1988); see also State v. Campbell, 367 N.W.2d 454, 461 (Minn.
1985) (abuse of trust relationship between victim and perpetrator may
support durational departure from the sentencing guidelines).

The trial court found,
        During the nighttime hours, while *** others slept
        in the home, [appellant] and his accomplice took
        advantage of their guest status in this home to
        steal the $48,600 cash from a locked safe in an
        upstairs bedroom/office.

Appellant contends that exploitation of trust may only be used as an
aggravating factor to justify a durational departure if a property is a
``major economic offense.'' We disagree. Although the Minnesota Sentencing
Guidelines only mention the exploitation of trust as an aggravating factor
in the context of a ``major economic offense,'' the mitigating and
aggravating factors listed by the sentencing guidelines are a
``nonexclusive list of factors which may be used as reasons for
departure.'' Minn. Sent. Guidelines II.D.2. Courts using exploitation of
trust as an aggravating factor have not confined its use to major economic
offenses. See State v. Schmit, 329 N.W.2d 56, 58 (Minn. 1983)
(upholding durational departure when defendant exploited wife's trust by
killing her after she went to sleep in his presence).

Finally, appellant argues no exploitation of trust occurred here, because
the victim's daughter, not the victim, invited appellant into the home. The
trial court found this argument without merit. We agree. The daughter had a
key to the victim's home. Moreover, the victim was present, albeit asleep,
when his daughter invited appellant into the home. The exploitation of
trust by appellant is a substantial and compelling factor which justifies
departure from the presumptive sentencing guidelines.