State of Minnesota,
Respondent,

vs.

Richard Patrick Mitchell,
Appellant.

Ramsey County District Court
File No. K199000002

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

PETERSON, Judge

In this appeal from a presumptive sentence for second-degree murder, appellant challenges the district court’s refusal to grant a downward durational departure. We affirm.

Appellant Richard Patrick Mitchell and Gerald Busse lived together in St. Paul. Mitchell sold marijuana from the house where they lived. Russell Schmeig called Mitchell about buying $20 worth of marijuana. Mitchell replied that he had some to sell, and Schmeig drove to Mitchell’s house. When Schmeig arrived, he had only a $50 bill and Mitchell did not have correct change, so no sale occurred. Mitchell and Busse then left to go shopping.

When they returned, they discovered that their house had been burglarized. They notified the police, and when officers arrived, Mitchell and Busse identified Schmeig as the probable suspect.[1] The police told them that it was doubtful that anything could be done.

Mitchell and Busse decided to retaliate by damaging Schmeig’s car or home.  Their first thought was to use a firebomb, but they did not want anyone to get hurt. They decided instead that they would shoot at Schmeig’s home. Shortly before 9:30 p.m., Mitchell retrieved a semi-automatic rifle from his basement, and the two men drove to Schmeig’s home. The house appeared dark. Mitchell fired five or six shots at the house as Busse drove by. One of the shots hit and killed Schmeig’s 20-year-old nephew. At the plea hearing, Mitchell testified that he had gone to the house earlier and honked his horn twice to see if anyone was there, but no one turned on the light or looked out the window, so he assumed the house was empty.

Mitchell and Busse were each charged with the unintentional killing of another during a drive-by shooting, in violation of Minn. Stat. § 609.19, subd. 1(2) (1998). Busse pleaded guilty pursuant to a plea agreement and received a 225-month sentence, a downward durational departure, due to his early cooperation with the police. Mitchell also pleaded guilty, but the district court found no mitigating circumstances and sentenced him to the presumptive sentence of 306 months.

The district court has broad discretion in sentencing and we will not reverse a sentence absent a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998). Unless substantial and compelling circumstances are present, the district court must impose the presumptive sentence under the Minnesota Sentencing Guidelines. Minn. Sent. Guidelines II.D. Refusals to depart from a presumptive sentence will only rarely be reversed on appeal. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even where there are grounds justifying departure, this court will not ordinarily interfere with the imposition of the presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).

Mitchell argues that the following mitigating circumstances were ignored by the district court during sentencing: (1) Schmeig was the aggressor; (2) Mitchell was coerced by Busse; (3) this drive-by shooting was less serious than the typical drive-by shooting; (4) Mitchell acted in the heat of passion; and (5) Mitchell was no more culpable than Busse, who received a mitigated sentence. See Minn. Sent. Guidelines II.D.2.a.(1), (2), (5) (nonexclusive list of factors that may be used as reasons for downward durational departure includes whether victim was aggressor, whether offender participated under circumstances of coercion or duress, and whether other substantial mitigating circumstances exist).

Mitchell admits that the victim was not an aggressor, but argues that Schmeig, the victim’s uncle, acted as an aggressor by burglarizing his home. Mitchell cites no authority to support his claim that Schmeig’s actions should be treated as victim aggression.

Mitchell contends that an evaluation by licensed psychologist R. Owen Nelsen indicates that he participated under circumstances of coercion or duress because he acted under psychological pressure from Busse to retaliate for the burglary. Citing State v. Larson, 473 N.W.2d 907 (Minn. App. 1991), Mitchell argues that victim aggression and duress are substantial mitigating factors justifying a downward durational departure. But Larson involved a dispositional departure where the offender showed that he was amenable to recovery and rehabilitation. Id. at 910. In Larson, although the district court found the offender may have acted under duress, another factor supporting the departure was that the actual victim was the initial aggressor in the incident and threatened to kill the offender and his friends. Id. at 908, 910.

Mitchell also argues that his conduct was less serious than that typically involved in a drive-by shooting because it was not gang-related and he intended only damage to property. We disagree. Mitchell was convicted under Minn. Stat. § 609.19, subd. 1(2) (1998), which states that a person is guilty of second-degree murder if the person "causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e." Minn. Stat. § 609.66, subd. 1e (a) (1998), states:

Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony * * *.

"Building" is defined as "a structure suitable for affording shelter for human beings." Minn. Stat. § 609.581, subd. 2 (1998). These statutes do not require intent to cause personal injury; they contemplate the exact offense Mitchell committed.

Mitchell’s argument that his crime was not typical because it was not gang-related is also without merit. Gang-related drive-by shootings are specifically addressed by Minn. Stat. § 609.229, subd. 3 (1998), which enhances the statutory maximum sentence for these crimes. Gang involvement is not an element of a drive-by shooting under Minn. Stat. § 609.19, subd. 1(2).

Mitchell next contends that his actions fell within the definition of "heat of passion," which has been recognized as a mitigating circumstance. Heat of passion exists where a person is "provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances." Minn. Stat. § 609.20(1) (1998). Mitchell cites no authority for, and we are not persuaded by, his claim that a person of ordinary self-control would be so provoked by a home burglary that he would commit a drive-by shooting.

Finally, Mitchell argues that his sentence should be comparable to his co-defendant’s sentence. Busse pleaded guilty pursuant to a plea agreement and received a 225-month sentence. The court stated that it honored the plea agreement and imposed the downward departure because the prosecution recognized Busse’s early cooperation in solving the crime. In his pro se brief, Mitchell argues that he cooperated with the investigating detectives and did not deny involvement in the incident, but that the prosecutor and the court overlooked these factors. He also refers to interviews with Sergeant Wuorinen on December 30, 1998, and January 1, 1999, that are not in the record.

This court can modify the sentence of an appealing defendant if a modification appears to be in the interests of fairness and uniformity. State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983). But fairness and uniformity involve more than comparing the sentences of a defendant and an accomplice; they involve comparing the sentence of the defendant with others who have committed the same crime. Id. A defendant is not entitled to a reduced sentence merely because a co-defendant received a lesser sentence. State v. Kresbach, 524 N.W.2d 17, 19 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995); see also State v. Bobo, 414 N.W.2d 490, 494 (Minn. App. 1987) (one who received the presumptive sentence for crimes he was convicted of committing cannot complain about diminished sentences received by his accomplices), review denied (Minn. Dec. 22, 1987).

The district court did not abuse its discretion by refusing to depart downward from the presumptive sentence. Mitchell’s conduct fits squarely within the drive-by shooting statute. Also, because Mitchell aimed and fired the rifle, his conduct was more serious than Busse’s conduct. See State v. Williams, 337 N.W.2d 387, 390 (Minn. 1983) (sentence within presumptive range affirmed for defendant whose conduct was at least as serious as that of his accomplices).

Affirmed.