This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


State of Minnesota,


Quentin Dean Stewart,

Filed August 13, 1996

Toussaint, Chief Judge

Otter Tail County District Court
File No. K9-95-694

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, 
Assistant Attorney General, 1400 NCL Tower, 445 Minnesota 
Street, St. Paul, MN  55101 (for respondent)

Waldemar Senyk, Otter Tail County Attorney, Courthouse, 121 
Junius Avenue, Fergus Falls, MN 56537 (for respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant 
State Public Defender, 2829 University Avenue S.E., Suite 600, 
Minneapolis, MN 55414 (for appellant)

	Considered and decided by Klaphake, Presiding Judge, 
Toussaint, Chief Judge, and Peterson, Judge.

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

TOUSSAINT, Chief Judge
	Quentin Dean Stewart was charged and convicted of first-
degree arson in connection with two fires that damaged the trailer 
home in which he lived with his girlfriend. Stewart was sentenced 
to the presumptive term of 48 months imprisonment and now 
appeals, arguing that the evidence was insufficient to support the 
conviction, and that the trial court erred by not granting a 
downward dispositional and durational departure despite the 
existence of substantial and compelling mitigating factors. We 

                                         D E C I S I O N  

	Where there is a challenge to the sufficiency of the 
evidence, our review on appeal is limited to a painstaking analysis 
of the record to determine whether the evidence, when viewed in a 
light most favorable to the conviction, was sufficient to permit the 
jurors to reach the verdict which they did. State v. Webb, 440 
N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume 
the jury believed the state's witnesses and disbelieved any evidence 
to the contrary.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 
	Stewart does not challenge the finding of  arson, only that 
there was insufficient evidence to prove his guilt, arguing that the 
evidence presented was almost entirely circumstantial.  A jury 
normally is in the best position to evaluate circumstantial evidence, 
and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 
430. Where a conviction is based on circumstantial evidence, the 
verdict will be sustained on appeal when the reasonable inferences 
from such evidence are consistent only with defendant's guilt and 
inconsistent with any rational hypothesis except that of guilt.  State 
v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
	The state often must rely on circumstantial evidence to 
prove arson.  State v. Jacobson, 326 N.W.2d 663, 665 (Minn. 
1982). A review of the record reveals that the jury heard testimony 
establishing Stewart's guilt by suggesting motive, opportunity, and 
	Stewart was also convicted of fifth-degree assault, which he 
does not challenge  on appeal. It is not unreasonable for the jury to 
have concluded that the incident resulting in the assault conviction 
angered Stewart and was his motive for setting the fire. Motive 
helps form inferences from circumstantial evidence and adds 
credibility to the state's case. Webb, 440 N.W.2d at 431.  
Furthermore, Stewart's own testimony as well as that of other 
witnesses, place him at the scene moments before the fire started, 
establishing opportunity. The jury also heard expert testimony that 
items recovered at the scene and from Stewart's car could have 
been used as possible means of setting the fires, either by creating 
a homemade torch or by using a lighter.
	All of the testimony presented to establish motive, 
opportunity, and means was sufficient to permit the jury to reach 
its verdict. See State v. Conklin, 406 N.W.2d 84, 87 (Minn. App. 
1987) (arson conviction was sufficiently supported by 
circumstantial evidence where totality of evidence demonstrated 
motive, means, and opportunity to commit crime).
	In addition to the circumstantial evidence, during 
questioning by the police, Stewart admitted starting one of the 
fires.  Stewart argues that the police officer lied to him about his 
circumstances, leading him to believe that if he admitted starting a 
fire he would be able to go home. An inculpatory statement is only 
admissible if it was voluntarily given. State v. Orscanin, 283 
N.W.2d 897, 899 (Minn. 1979), cert. denied (Minn. Nov. 26, 
1979). The admissibility of a confession is strictly a matter for the 
trial court at the omnibus hearing. Id. at 901. Stewart waived any 
omnibus issues at the omnibus hearing, so the determination of the 
weight and credibility of his admission were the only matters for 
the jury's consideration.  See State v. Schaeffer, 457 N.W.2d  194, 
196 (Minn. 1990).
	Both Stewart and the police officer testified that Stewart 
received a Miranda warning and that Stewart stated he understood 
it.  If the police fully advise an accused of his Miranda rights, and 
the accused indicates that he understands his rights and 
nevertheless gives an incriminating statement, the state is deemed 
to have met its burden of proving that the accused knowingly and 
intelligently waived his rights. State v. Williams, 535 N.W.2d 277, 
286 (Minn. 1995).  The police officer also testified that he made no 
promises to Stewart in exchange for information, but that he only 
tried to appear sympathetic so that Stewart would tell the truth.  A 
recording of the questioning was also played for the jury at defense 
counsel's request.  We must presume that the jury believed the 
state's witnesses and disbelieved any evidence to the contrary. 
Appellant's admission, coupled with circumstantial evidence, 
amply supports the jury's finding of guilt. State v. Battin, 474 
N.W.2d 427, 431 (Minn. App. 1991), review denied (Minn.Oct. 
23, 1991).
	Stewart also argues that the evidence was insufficient 
because the police failed to investigate his girlfriend, a possible 
suspect. The record reveals that she in fact was investigated, and 
the jury heard testimony to that effect.
	 The jury had the power to weigh the credibility of the 
witnesses and the evidence presented at trial. Id at 430.  We will 
not disturb the verdict if the jury, acting with due regard for the 
presumption of innocence and for the necessity of overcoming it 
by proof beyond a reasonable doubt, could reasonably conclude 
that a defendant was proven guilty of the offense charged.  Alton, 
432 N.W.2d at 756.  
	Stewart was sentenced to the presumptive term of 48 
months for first-degree arson. Stewart argues that the trial court 
erred by not considering mitigating factors that would have 
justified a downward dispositional and durational departure.  
Stewart argues that the trial court should have considered: (1) the 
sufficiency of the evidence as to whether he started the second fire; 
(2) that this was his only felony offense; and (3) that he had strong 
family ties.
	Only in a "rare" case will a reviewing court reverse a trial 
court's imposition of the presumptive sentence.  State v. Kindem, 
313 N.W.2d 6, 7 (Minn. 1981). The defendant must establish 
substantial and compelling circumstances to justify departure, and 
even then departure is still discretionary.  Id. 
	None of Stewart's arguments is substantial and compelling. 
The trial court considered his claims and determined that the 
presumptive sentence was appropriate. Even if a mitigating factor 
was found to exist, it did not obligate the court to impose a shorter 
term.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  See also 
State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (reviewing court 
will not ordinarily interfere with sentence in the presumptive range 
even when there are grounds to justify departure).  Nothing in the 
record indicates that this is the "rare" case which would justify 
reversal of the trial court's sentence.