STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy Michael Kimbro,
Filed November 3, 1998
Freeborn County District Court
File No. K2-97-684
Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, 411 S. Broadway, Albert Lea, MN 56007 (for respondent)
John M. Stuart, State Public Defender, Paul C. Thissen, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.
Appellant Timothy Kimbro pleaded guilty to an amended count of (1) theft by false representation in the form of checks and in the form of promises with intent not to perform and (2) theft by false representation in the form of checks. See Minn. Stat. §§ 609.52, subds. 2(3)(a), (b), 3(2) (1996). The complaints were filed in Freeborn County and Faribault County; other charges involving dishonored checks in Freeborn, Mower, and Blue Earth Counties and in the City of Mankato were dismissed.
Kimbro specifically agreed to pay $31,535.55 in restitution and acknowledged that this amount accurately represented monetary losses arising from the crimes he pleaded guilty to, the charged but dismissed crimes, and the uncharged crimes. The state agreed to merge all cases pending against Kimbro and to imposition of concurrent sentences. The state further agreed not to Hernandize Kimbro's sentence.
The district court imposed stayed concurrent sentences of 34 and 30 months, double durational departures; placed Kimbro on probation for 10 years; and ordered him to serve 12 months in the Freeborn County jail.
On appeal, Kimbro challenges the double durational departures. Because Kimbro's offense constitutes a major economic offense justifying the departure in this case, we affirm.
Upward durational departures from the sentencing guidelines are within the sentencing court's discretion only if "substantial and compelling" aggravating circumstances are present. Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997) (quoting State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981)); see also Minn. Sent. Guidelines II.D. If, as here, the sentencing court's stated reason for departing is inadequate, we may nonetheless affirm on appeal if "there is sufficient evidence in the record to establish that there is another reason for the departure." State v. Fields, 423 N.W.2d 390, 392 (Minn. 1988).
In this case, the record establishes that the departure was justified on the ground that Kimbro committed a "major economic offense," which requires two of the following circumstances: (1) multiple victims; (2) monetary loss substantially greater than the usual offense; (3) high degree of sophistication or planning; (4) use of position or status to facilitate commission of offense; or (5) involvement in other conduct similar to the current offense, as evidenced by the findings of civil or administrative proceedings. Minn. Sent. Guidelines II.D.2(b)(4).
A court may rely on a defendant's course of conduct underlying a charge, even conduct that was uncharged or that was charged but dismissed under a plea agreement, unless the defendant denied the conduct. State v. Srey, 400 N.W.2d 722, 722-23 (Minn. 1987) (court may rely on course of conduct underlying charge to impose double durational departure where plea hearing transcript demonstrated defendant did not deny forging many other uncharged checks and understood trial court could order restitution in total amount deemed to have been stolen). Because Kimbro did not deny his uncharged conduct and acknowledged that the monetary losses arising from his actions totaled over $31,000, his underlying course of conduct may be considered.
That underlying course of conduct demonstrates that Kimbro passed over 80 dishonored checks, using six different checking accounts; held himself out as a contractor; managed to obtain over $19,000 in down payments from his victims for promised work he neither had the ability nor intention of doing; and convinced private individuals, businesses, and banks to extend him credit. Thus, Kimbro's offense involved multiple victims and sometimes multiple incidents per victim; a total monetary loss of over $31,000, well over the $2,500 minimum necessary for Kimbro's conviction; a sophisticated scheme, considering the number of victims, checking accounts, and contracts involved; and Kimbro's use of his position as a trusted small businessman to obtain substantial downpayments from individuals in his community. Under these circumstances, the district court did not abuse its discretion in imposing a double durational departure. See, e.g., State v. Brigger, 316 N.W.2d 512, 513 (Minn. 1982) (durational departure for "compulsive check forger" justified because his offense was major economic crime); State v. Rott, 313 N.W.2d 574, 575 (Minn. 1981) (when conduct underlying charges considered, durational departure justified on ground that defendant committed major economic offense).
Kimbro argues that the entire course of conduct underlying the offense cannot be considered because he never admitted that his conduct was criminal and that we are limited to facts related only to the charged offenses. Even if only the charged offenses are considered, however, Kimbro's conduct still constitutes a major economic offense: he was charged in four counties with writing 35 checks totaling $4,199.62 over a six-month period, on five different bank accounts, both business and personal, that were either closed or had insufficient funds. These facts alone may justify a double durational departure.
 It is undisputed that this last circumstance does not apply in this case.