A05-482

State of Minnesota,

Respondent,

vs.

Shawn P. Bauer,

Appellant.

Filed March 7, 2006

Affirmed

Worke, Judge

Ramsey County District Court

File No. K9-04-2371

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

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

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from his sentence for first-degree assault, appellant argues that the district court abused its discretion in denying his motion for a downward dispositional departure. Appellant argues that his young age, remorse, and lack of a felony record, as well as the atypical nature of the assault, warranted a downward departure and that the district court failed to properly consider the reasons supporting a departure. Because we find no error, we affirm.

D E C I S I O N

The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” that warrant a departure. Id. “[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).

The mitigating and aggravating factors listed in section II.D. of the Guidelines focus primarily on the degree of a defendant’s culpability. However, when justifying only a dispositional departure, the trial court can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.

State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).

A district court may depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Amenability to probation depends on numerous factors, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support of friends and/or family. Id. Although the facts may justify a downward departure, State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985), the presence of a mitigating factor does not require departure from the presumptive guidelines sentence. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).

Here, as the victim and her boyfriend were about to enter a grocery store, a group of males waved at her and asked her to come over to their car. When they saw the victim’s boyfriend, they shouted obscenities at him. The victim’s boyfriend responded with an obscene gesture. The group of males followed the couple into the store. Appellant Shawn Phillip Bauer picked up a one-pound, three-ounce jar of olives and threw it at the victim’s boyfriend. The victim’s boyfriend ducked, and the jar struck the victim in the head. The victim suffered a skull fracture and traumatic brain injury.

Appellant argues that the district court abused its discretion by failing to consider substantial and compelling reasons justifying a downward departure. Appellant argues that his age, his remorse, and his lack of any substantial record are mitigating factors that the district court failed to consider in denying his motion. But these factors do not constitute “substantial and compelling circumstances.” Further, while appellant was given an opportunity to complete inpatient chemical-dependency treatment in the two months between his plea and sentencing, he chose to work instead because he believed he needed to work in order to support his girlfriend and their newborn child. Appellant also admitted to his probation officer that during the same period, appellant continued to use drugs and alcohol. In denying appellant’s motion, the district court stated, “You have given me nothing, nothing that will give me any belief that you will be successful on probation. . . . We gave you the opportunity and you just continued to make the short term impulsive choices that when added—when alcohol is added led to this happening.” Based on the fact that appellant failed to present substantial and compelling circumstances justifying a downward departure, the district court did not abuse its discretion in denying appellant’s motion.

Affirmed.