Filed March 30, 2004

Affirmed

Gordon W. Shumaker, Judge

Hennepin County District Court

File No. 02072327

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Amy J. Klobuchar, Hennepin County Attorney, David C. Brown, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414-3907 (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

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

GORDON W. SHUMAKER, Judge

On appeal from his conviction of theft from person, appellant Billy Dawson Slaughter argues that the district court abused its discretion when it (1) denied his motion to dismiss the charges at the close of the state’s case-in-chief because the evidence was insufficient, (2) considered the charge of theft from person, and (3) denied his motion for a downward durational sentence departure. Because the evidence was sufficient to support the conviction and Slaughter failed to show how the district court abused its discretion, we affirm.

FACTS

In the early morning on September 8, 2003, officers Jarrod Roering and Nicholas Antila responded to a robbery report in the area of 620 Penn Avenue North. On arrival, the officers encountered S.L. yelling at appellant Billy Dawson Slaughter, who was standing on the porch of 610 Penn Avenue North. S.L. stated that Slaughter had robbed her and that he had a knife. Officers detained Slaughter, conducted a pat search, and recovered a folding knife from his front pants pocket.

In a bench trial, S.L. testified that (1) she was talking with Slaughter when he grabbed necklaces off her neck and ran down the street; (2) she and her boyfriend, Leroy Jackson, chased Slaughter and cornered him on the porch of 610 Penn Avenue North; and (3) the knife was not used in the course of the robbery and she never actually saw a knife. Evidence admitted at trial showed that S.L. had red scratches around her neck, consistent with necklaces being pulled from her neck. The officers conducted a search of the area of the alleged robbery and found two of S.L.’s necklaces.

After the state presented its case-in-chief, Slaughter moved to dismiss the two counts of first-degree aggravated robbery and one count of simple robbery, the only charges against him at that time. The district court denied the motion and, on its own motion, and after notifying counsel and the defendant, considered the lesser-included offense of theft from person. The court acquitted Slaughter of all but the theft-from-person charge. Slaughter’s motion for a downward durational sentencing departure was denied. This appeal followed.

D E C I S I O N

l. Sufficiency of evidence

Slaughter argues that the district court erred by denying his motion to dismiss at the close of the state’s case-in-chief because the evidence was insufficient to sustain a conviction for first-degree aggravated robbery and simple robbery. When sufficiency of evidence is challenged, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We defer to the fact-finder on determinations of credibility. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). This court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Whether the district court erred by denying Slaughter’s motion to dismiss the charges of first-degree aggravated robbery and simple robbery is moot, however, because Slaughter was acquitted of both of those charges.

2. Theft-From-Person Conviction

Slaughter next argues that the district court abused its discretion when, on its own motion, it considered the lesser-included offense of theft from person. Minnesota law provides that “[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be . . . [a] crime necessarily proved if the crime charged were proved.” Minn. Stat. § 609.04, subd. 1(4) (2002). Here, Slaughter was charged with simple robbery and convicted of theft from person. Simple robbery under Minn. Stat. § 609.24 (2002) occurs when a person

having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property.

Theft from person is a lesser-included offense of robbery. State v. Hines, 354 N.W.2d 91, 93 (Minn. App. 1984), review denied (Minn. Nov. 7, 1984). Theft from person occurs when a person “[i]ntentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession.” Minn. Stat. § 609.52, subd. 2(1) (2002).

A district court may consider a lesser-included offense when: (1) the offense in question is an included offense, Minn. Stat. § 609.04 (2002); and (2) a rational basis exists to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime. State v. Leinweber, 303 Minn. 414, 421-22, 228 N.W.2d 120, 125-26 (1975). The district court may convict on a lesser-included offense even when it has acquitted a defendant of the charged crime if the court either denies a motion for acquittal or reserves judgment of acquittal for any lesser-included offense. State v. Bouwman, 354 N.W.2d 1, 6 (Minn. 1984).

A district court is not required to consider the lesser offense in the absence of a request. State v. Keenan, 289 Minn. 313, 318, 184 N.W.2d 410, 413 (1971). The inference from this rule is that a district court may, but is not required to, consider the lesser offense in the absence of a request therefor. Here, the district court denied Slaughter’s motion for acquittal stating, “I’m going to deny the [defense’s acquittal] motion at this time. Denying that, I’m not making any comment on the overall weight and credibility of the evidence which I’m left to judge at the end of the case.” Thus, the district court’s denial of Slaughter’s motion to acquit left the door open for a conviction on a lesser-included charge.

Before Slaughter testified and before closing arguments, the court reminded Slaughter and counsel that the court had informed everyone of its intention to consider the lesser-included offense of theft from person on its own motion. The court pointed out to Slaughter that the lawyers knew of its intention to consider the offense of theft from person and that time was allowed so they could prepare testimony or procedures accordingly.

A painstaking analysis of the record, with the evidence viewed in a light most favorable to a conviction, shows that Slaughter took personal property from S.L., had knowledge that he was not entitled to it, used force by pulling the chains from S.L.’s neck, and compelled acquiescence in the taking of the property from S.L. in this fashion. On these facts, Slaughter could have been found guilty of simple robbery under Minn. Stat. § 609.24 or of theft from person under Minn. Stat. § 609.52, subd. 2(1). When Slaughter objected to the consideration of the theft-from-person charge, he did not provide the district court with any legal authority to support his position and does not provide any legal authority in support of his position now. Thus, we conclude that the district court did not err when it denied Slaughter’s motion to acquit on the simple robbery charge. Because a district court may consider a lesser-included offense, we conclude that the district court did not abuse its discretion when it convicted Slaughter of theft from person.

3. Sentencing

A district court has discretion to depart from the sentencing guidelines only if aggravating or mitigating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Only in rare cases will this court overturn a district court’s refusal to depart from a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “The fact that a mitigating factor was clearly present [does] not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

Slaughter does not challenge the sentence of 33 months; rather he argues that because: (1) “this offense was less serious than the typical theft from person;” (2) he was given “ample opportunity, [and he] did not flee the scene;” and (3) “he cooperated with police by notifying them that there was a knife in his pocket and by submitting to the search and arrest,” he is entitled to a downward durational departure.

Slaughter’s argument is unpersuasive because the fact that Slaughter cooperated, submitted to a lawful search and arrest, and did not flee from police is not exemplary behavior or of a nature that would merit a durational downward departure. This behavior merely reflects basic compliance with the law that is expected during a lawful arrest. But even if the facts showed that a mitigating factor was present, under Wall the district court is not obligated to impose a shorter term than the presumptive term.

Affirmed.