This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1927

 

State of Minnesota,
Respondent,

vs.

Brian Charles Calhoun,
Appellant.

 

Filed December 5, 2006

Affirmed

Minge, Judge

 

Steele County District Court

File No. K4-04-1128

 

 

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

 

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)

 

Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, 336 North Robert Street, Suite 1600, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Toussaint, Presiding Judge; Minge, Judge; and Hudson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

Appellant asserts that the district court abused its discretion by refusing to make a downward durational or dispositional departure from the presumptive sentence for his conviction of first-degree assault.  We affirm.

D E C I S I O N

I.

The first issue is whether the district court abused its discretion by refusing to grant a downward durational departure from the presumptive sentence.

Appellate courts review sentences to determine whether they are “inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  Minn. Stat. § 244.11, subd. 2(b) (2004).  The decision whether to depart from the presumptive sentence rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  Only a “rare case” warrants reversal of a district court’s refusal to depart from the sentencing guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

The district court must impose the presumptive guidelines sentence unless “substantial and compelling circumstances” warrant a departure.  Id.; Minn. Sent. Guidelines II.D.  But the mere fact that a mitigating factor is present in a particular case does “not obligate the court to . . . impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

Only in limited circumstances have appellate courts found circumstances substantial and compelling enough to warrant reversal of a district court’s refusal to depart from the presumptive sentence.  In State v. Hennum, for example, a woman was convicted of murdering her husband, and the district court imposed the presumptive sentence.  441 N.W.2d 793, 800 (Minn. 1989).  On appeal, the supreme court modified the sentence by imposing a downward durational departure.  Id. at 801.  The court reasoned that because the woman had been subjected “to severe physical and mental abuse” by her husband throughout the relationship and on the night of the murder, substantial and compelling circumstances warranted the departure.  Id.  In making its decision, however, the supreme court, “reaffirm[ed] [its] prior statement that it is a ‘rare’ case which merits reversal of the [district] court’s discretionary refusal to depart.” Id. (quoting Kindem, 313 N.W.2d at 7).

Here, appellant was convicted of both first- and second-degree assault for an incident that took place during a bonfire at his ex-girlfriend’s residence.  The district court imposed the presumptive 98-month executed sentence for the first-degree assault conviction.  Appellant then moved for a downward durational departure from the 98-month presumptive sentence, but the court concluded that “[t]here is no substantial and compelling circumstance to justify departure, either durationally or dispositionally.”

Appellant challenges the district court’s refusal to depart durationally because he claims that the victim was the aggressor.  Courts may consider aggression on the part of the victim as a mitigating factor.  Minn. Sent. Guidelines II.D.2.a.(1).  But an appellate court may not overturn a presumptive sentence unless it is clear that a mitigating factor applies.  Oberg, 627 N.W.2d at 724.  In addition, the mere presence of a possible mitigating factor does not mandate departure.  Wall, 343 N.W.2d at 25.

The district court considered whether there was aggression and determined that although the victim approached appellant, appellant came to the residence knowing that he was not welcome.  As appellant walked up the driveway, several people asked him to leave, including his ex-girlfriend’s new boyfriend, the victim.  A fight eventually broke out between appellant and the victim.  The record is not clear as to who instigated the fight, but it establishes that appellant stabbed the victim 12 times, nearly killing him. 

On this record, it is reasonable to infer that appellant was actually the aggressor.  We conclude that the district court did not abuse its discretion by refusing to grant a downward durational departure. 

II.

The second issue is whether the district court abused its discretion by refusing to grant appellant’s motion for a downward dispositional departure. 

As previously indicated, a district court’s refusal to grant a downward departure from a presumptive sentence is reviewed for an abuse of discretion, and it is a rare case that merits reversal of the district court’s discretionary refusal to depart.  A district court may depart dispositionally from the presumptive sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  Trog, 323 N.W.2d at 31.[1]  Amenability to probation depends on numerous factors, including age, prior record, remorse, cooperation, attitude while in court, and support of friends and family.  Id.  Not all of these factors must be satisfied in order to justify a downward dispositional departure.  Id.  But if a district court fails to deliberately consider the circumstances for and against departure, the case warrants remand.  State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002) (citation omitted), review denied (Minn. Apr. 16, 2002).  Even if some of the factors are present, dispositional departure is not required.  Trog, 323 N.W.2d at 31.  A downward dispositional departure should not be readily granted because of claims that the defendant is amenable to probation.  Id. 

Appellant argues that he is entitled to a remand of his case because the district court failed to deliberately consider the circumstances warranting departure in this case, namely appellant’s age, remorse, family support system, and amenability to probation.  But in its order and memorandum of law, the district court specifically considered the Trog factors in favor of and against departure.  Although the court recognized that appellant has the support of his friends and family, it also determined that appellant: (1) had “bounced” between his mother’s home and his father’s home because of his reluctance to follow their rules; (2) had a lengthy history of juvenile delinquency and was on juvenile probation when the assault occurred; and (3) was remorseful “for his own circumstance” (conviction and incarceration) and not for the victim’s injuries. 

Although the district court acknowledged that some evidence weighed in favor of dispositional departure, it determined that there was substantial evidence against departure.  We conclude that the district court did not abuse its discretion by refusing to grant a downward dispositional departure.

Affirmed.