This opinion will be unpublished and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
C3-96-153

State of Minnesota,
Appellant,

vs.

Jon Dorien Brown,
Respondent.

Filed July 16, 1996
Affirmed
Norton, Judge

Waseca County District Court
File No. KX-94-469

Hubert H. Humphrey, III, Attorney General, NCL Tower, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101, Larry M. Collins, Waseca County Attorney, 307 North State Street, Waseca, MN 56093 (for Appellant)

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant State Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant State of Minnesota challenges the trial court's downward dispositional and durational departure in sentencing respondent Jon Brown, arguing that the trial court failed to provide adequate and proper reasons to justify either departure. We hold the record adequately supports durational and dispositional departures and affirm.

FACTS

Respondent Jon Brown and two friends went into a bar to play a game of pool. The bartender asked respondent and a friend to leave, because he believed that they had carried their own beer into the bar. When respondent went to retrieve their jackets, he and his friend exchanged words with a customer in the bar. Respondent claimed that the customer used racial slurs in offering to assist the bartender in throwing respondent out of the bar.

The customer and the bartender walked respondent and his friend to the back door of the bar. It is not disputed that, when respondent was just about to leave, or had left and immediately returned, he hit the customer with a chair, injuring both the customer and the bartender. There was conflicting testimony regarding whether respondent and the customer were fighting, whether respondent ever left the bar, whether racial slurs were used, and whether the customer was hit from behind.

After a jury trial, respondent was convicted of one count of second-degree assault. The presentence investigation recommended a 21-month executed sentence, which is the presumptive sentence for second-degree assault with a criminal history score of zero. Respondent was committed to the Commissioner of Corrections for 12 months with the sentence executed. The sentence was later amended to 365 days in jail and did not refer to the Commissioner of Corrections.

D E C I S I O N

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. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). The trial court must order the presumptive sentence provided in the sentencing guidelines unless the case involves "substantial and compelling circumstances" to warrant a departure. Minn. Sent. Guidelines I.4.; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Under the sentencing guidelines, the trial court may depart downward if "[o]ther substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense." Minn. Sent. Guidelines II.D.2.a.(5).

Durational Departure

The state contends that the trial court did not issue any written findings of fact or conclusions of law as required by the Minnesota Rules of Criminal Procedure and did not file a departure report with the Sentencing Guidelines Commission.

When a judge departs from the guidelines, written reasons must be provided specifying "the substantial and compelling nature of the circumstances" and demonstrating "why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence." Minn. Sent. Guidelines II.D. However, a case should not be overturned "strictly for the failure to provide written reasons when oral reasons are stated in open court on the record." State v. Bale, 493 N.W.2d 123, 124 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993). If the trial court states reasons supporting the departure, "this court will examine the record to determine if the reasons given justify the departure." Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Although the trial court did not provide written reasons for departing, the court did state its reasons on the record.

There were conflicting stories before the jury as to what actually happened. * * * Question of whether a black person in a bar at 12:30 a.m., at Barden's Bar at 12:30 a.m., had six or seven of its regulars there, was given treatment different than a person who wasn't; had you not been black, had you been white or some other color, and that's a question which one could speculate on forever and ever and there is no real way of answering that question. * * * The Sentencing Guidelines would require that you be committed to the Commissioner of Corrections for a period of 21 months and the court is going to depart downwards somewhat from that on the grounds that in 5 of the Sentencing Guidelines, the circumstances don't constitute a defense. I don't think there is any question of that they do not constitute a defense. They are somewhat unusual circumstances, a black person in a bar in an essentially white town, 12:30 a.m., lots of drinking, lots of talk about "Nigger, get your ass out of here", that sort of thing. I don't think that was exactly the quote, but it was something close to that. The court finds it to be very detrimental to what this community should be. Everybody thinks their community should be better than it is; some people think it's worse than it is. So Waseca is not really a bad community, in fact, Waseca is a very good community, but the circumstances of that particular night, the court is satisfied that you were treated somewhat differently than you might have been otherwise. Again, it's not a defense to the crime. So the court departs downwards from the guidelines, imposes or commits you to the custody of the Commissioner of Corrections for a period of 12 months.

The state contends that these reasons are inadequate or improper and do not support a downward departure. If the trial court provides reasons that "are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed." Williams, 361 N.W.2d at 844.

There was testimony that racial slurs were directed at respondent and testimony that the customer and respondent may have been going outside to fight. The record also indicates that respondent was the only African American in the bar, and, except for respondent and his friend, the patrons in the bar were all regulars and knew one another. The trial court, in reviewing the record, found these facts sufficient to mitigate respondent's culpability, and we agree that there is sufficient evidence in the record to justify the departure.

Dispositional Departure

The state contends that the trial court also departed dispositionally by amending Brown's sentence to exclude his commitment to the Commissioner of Corrections and by sentencing him for a gross misdemeanor instead of a felony.

A defendant convicted of second-degree assault "shall be committed to the commissioner of corrections for not less than one year plus one day * * *." Minn. Stat. ' 609.11, subd. 4 (1994). Thus, the trial court's imposition of a sentence of 365 days in jail would, therefore, constitute a dispositional departure. Further, "[i]t is a sentencing departure for the trial court to give a nonfelony sentence for a felony offense." State v. Vahabi, 529 N.W.2d 359, 361 (Minn. App. 1995).

The state correctly notes that separate reasons are required for each type of departure.

Decisions with respect to disposition and duration are logically separate. Departures with respect to disposition and duration also are logically separate decisions. * * * A judge who departs from the presumptive disposition as well as the presumptive duration has made two separate decisions, each requiring written reasons.

Minn. Sent. Guidelines cmt. II.D.02. However, the absence of written findings does not justify reversing a sentence if the trial court provides oral reasons in open court on the record. See Bale, 493 N.W.2d at 124.

In determining respondent's sentence, the trial court stated that it had considered the presentence investigation report, the psychological evaluation, and the sentencing memorandum submitted by a dispositional advisor with the public defender's office. Although the presentence investigation report recommended that the court impose the presumptive sentence, both the psychological evaluation and the sentencing memorandum provided grounds for a downward departure.

The psychological evaluation suggested that respondent would "be a possible candidate for probation." It also stated that respondent recognized the need to address his anger issues and was very cooperative and motivated to address his personal issues. The evaluation further suggested that respondent would benefit from anger therapy in a group therapy experience, a service provided for inmates under the supervision of Rice County Court Services. Thus, the evaluation suggested that respondent be referred to the county facility.

The sentencing memorandum also suggested that respondent was amenable to probation, the incident was unlikely to recur, and respondent's rehabilitative needs would best be met outside the prison setting.

In addition to these offender-related factors, the trial court could have used offense-related factors to support the dispositional departure. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) ("offense-related * * * factors may be used to support not only * * * a dispositional departure but, alternatively, [a] * * * durational departure"). During the sentencing hearing, the trial court stated that there were conflicting stories about the incident and that respondent was treated differently as the only African American in the bar. In addition, the record indicates that the victims both sustained injuries to their foreheads, which contradicts the testimony that they were struck from behind and lends support to respondent's testimony that the men were exchanging words. These facts would tend to mitigate respondent's culpability, and, under Chaklos, could be used to support both the dispositional and durational departures.

Thus, although the trial court did not specify which reasons supported which departure, we find that the reasons stated on the record, as well as the court's efforts to amend the order, indicate the trial court's consideration of the entire record, and we find that the evidence in the record justifies both the dispositional and durational departures.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.