A05-2367

State of Minnesota,

Respondent,

vs.

Ta-Raj Benness,

Appellant.

Filed May 8, 2007

Affirmed

Willis, Judge

Hennepin County District Court

File No. 05007366

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

Mike Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

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

WILLIS, Judge

In this appeal from a conviction of second-degree murder, appellant challenges the district court’s denial of his motion for a downward durational departure, arguing that the district court failed to consider all of the relevant mitigating factors. We affirm.

FACTS

On the night of February 3 and into the morning of February 4, 2005, appellant Ta-Raj Benness was out drinking with two companions: Marcus Tyler and the victim, Michael Harmon. The three men went to several bars, and Benness and Harmon were both intoxicated. Benness testified that throughout the night, Harmon “kept talking crazy[,] saying stuff” to him, and “insulting” him. Harmon eventually drove the three men back to Benness’s home. Benness sat in the back seat of the car, behind Harmon. Benness testified that, just before the shooting, he thought that Harmon was reaching for a gun that Harmon sometimes kept in the console of his vehicle, so Benness pulled his own gun out of his waistband and shot Harmon seven times in the back. Tyler, who was sitting in the front passenger seat, testified that Harmon was lighting a cigarette, not reaching for a gun, when Benness started shooting. Tyler further testified that when he asked Benness why he had shot Harmon, Benness replied that Harmon had “deserved it.” Benness denied making such a comment. After the shooting, Benness got out of the car and went into his home. Benness did not call for medical assistance; Harmon died in his car.

Benness pleaded guilty to second-degree murder. After the plea hearing but before the sentencing hearing, it was discovered that Benness has a juvenile record that increased his criminal-history score and therefore resulted in a presumptive sentence of 326 months rather than 306 months. The district court nonetheless imposed a 306-month sentence, despite opposition from the state, explaining that imposing the higher sentence would have been “unpalatable” given the fact that the district court had represented to Benness at the plea hearing that he would receive a maximum sentence of 306 months. Benness moved for a downward durational departure from his 306-month sentence, and the district court denied the motion. This appeal follows.

D E C I S I O N

Benness argues that the district court abused its discretion by denying his motion for a downward durational departure because the district court “did not fully consider all the relevant mitigating circumstances.” The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” that warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). And as the state points out, the existence of a mitigating factor does not obligate the district court to grant a downward departure. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). Only in a “rare case” will a reviewing court reverse a district court’s imposition of the presumptive sentence. Kindem, 313 N.W.2d at 7.

Benness argues that a downward durational departure was warranted for several reasons. First, Benness asserts that he believed that he was “in peril” because Harmon had been “insulting” him and looking at him with a “mean face” and because it appeared that Harmon was reaching for a gun just before the shooting. The sentencing guidelines provide a nonexclusive list of mitigating factors that may justify a downward departure, and one of those factors is that the victim was an aggressor in the incident. Minn. Sent. Guidelines II.D.2.a. Benness argues that although Harmon was not a physical aggressor, his “verbal aggression” created “an atmosphere of fear and anxiety.”

The district court expressly addressed and rejected the argument that Harmon was the aggressor in the incident, noting that Harmon was seated with his back to Benness, was unarmed, and was “in all likelihood lighting a cigarette” just before the shooting, which defies any suggestion that he was the aggressor. Also, no gun was found in the car. The district court also rejected Benness’s claim that Harmon’s oral insults created an “atmosphere of fear and anxiety” that caused the shooting. It concluded that “the idea that because he traded verbal barbs with [Benness], Harmon deserved to die defies common sense.” The district court did not abuse its discretion in arriving at this conclusion.

Second, Benness argues that he should have received a downward durational departure because the fact that his “personality type [is] atypical from the average inmate” makes him particularly amenable to treatment. Benness points to the testimony of a psychologist who explained that Benness is “chronically frustrated” because he “aspires to be more but has never been able to get off the ground. He’s a gentleman [who] can see across the street but has never been able to walk across the street, so to speak.” Benness also points to the testimony of family and friends regarding his “kind-hearted nature.” But Benness concedes that an offender’s personal characteristics are generally relevant to a dispositional departure, not to a durational departure, which is what Benness seeks. See State v. Allen, 706 N.W.2d 40, 46 (Minn. 2005).

Benness also argues that his “mental disorders” support a downward durational departure. The district court rejected this argument, and we agree. Mental impairment must be extreme to serve as a mitigating factor. State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992) (concluding that the defendant’s depression and anger were not sufficiently extreme). We find no case in which “chronic frustration” was deemed a mental disorder that justifies a downward durational departure. And Benness’s impairment is not sufficiently severe to be a mitigating factor.

Finally, Benness argues that his remorse justifies a downward durational departure. He asserts that he “knew immediately” that he had done something wrong; that he called his family after the shooting and expressed his intention to turn himself in; and that he apologized at the sentencing hearing to Harmon’s family and to the court. Benness concedes that remorse, like personal characteristics, is typically relevant to a dispositional departure rather than a durational departure. See State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The district court specifically addressed this factor and concluded that Benness’s remorse at sentencing did not obligate it to grant a durational departure, particularly in light of his unremorseful actions immediately after the shooting. We agree that any remorse Benness may have expressed did not compel a downward departure. See Oberg, 627 N.W.2d at 724.

This is not that rare case in which this court will reverse a district court’s imposition of the presumptive sentence. See Kindem, 313 N.W.2d at 7. The district court’s denial of Benness’s motion to depart downwardly was not an abuse of discretion.

Affirmed.