STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-970

State of Minnesota,
Respondent,

vs.

Omar Kwabena Walford,
Appellant.

Filed March 20, 2001

Affirmed

Crippen, Judge

Ramsey County District Court

File No. K6983015

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.

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

CRIPPEN, Judge

Appellant Omar Walford, convicted of criminal vehicular homicide, challenges the trial court’s refusal to depart downward from the presumptive guidelines sentence. Because appellant’s case does not present rare circumstances requiring a downward departure, we affirm.

FACTS

In June 1998, appellant hit a pedestrian as he drove approximately 50 m.p.h. down a residential street. The victim died from the resulting injuries. After a bench trial, the court found appellant guilty of criminal vehicular homicide. Both appellant and the state moved for a sentencing departure, but the court imposed the presumptive sentence under the guidelines. Appellant contends that the trial court should have departed downward, either in duration or disposition, because of his testimony that the victim was the aggressor and appellant was acting in self-defense by fleeing a dangerous situation.

D E C I S I O N

“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). The existence of circumstances permitting a departure from the presumptive sentence is a “threshold question.” State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984). Even when grounds exist that might justify a departure, a reviewing court ordinarily will not interfere with the imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (“[I]t would be a rare case which would warrant reversal of the refusal to depart.”).

Appellant contends that the substantial and compelling circumstances of acting in self-defense while fleeing gang members, who were threatening him with bodily harm, dictate a downward departure. Whether those circumstances existed depends on the credibility of appellant’s testimony, which the trial court found “lack[ed] credibility.” To support this finding, the trial court cited appellant’s attempt to destroy the van, his failure to turn himself into police authorities, and his choice to assume an alias and go into hiding. In addition, the record shows that many witnesses saw appellant swerve to hit the victim and their statements make no mention of hearing him honk the horn, as appellant testified. Furthermore, appellant’s testimony about gang threats was initially corroborated by Anthony Hall, but Hall later admitted to lying, changed his statement, and made no mention in his revised statement of the group of men “throwing gang symbols.” Thus, we cannot say the trial court clearly erred in finding that appellant’s testimony lacked credibility. See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (noting weight and credibility of testimony are determinations for trier of fact and may not be reweighed on appeal). Because appellant’s testimony provided the only proof of mitigating factors, there were no circumstances that the trial court could have used to justify a departure.

In spite of its findings, it appears that the trial court considered appellant’s arguments but found his version of the facts did not “support either an upward or a downward departure.” We agree and find no abuse of discretion. Even accepting appellant’s version of the events as true, because he chose a means of escape that endangered many lives, this is not the rare case mandating a downward departure and interference with the trial court’s imposition of a presumptive sentence.

Affirmed.