STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1928

State of Minnesota,

Respondent,

vs.

Malissa M. Stewart,

Appellant.

Filed October 16, 2007

Affirmed

Ross, Judge

Polk County District Court

File No. K0-06-429

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

Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

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

ROSS, Judge

On appeal from a sentence for felony theft by swindle, Malissa Stewart argues that the district court abused its discretion by imposing an upward durational departure. Because the record supports the district court’s finding that Stewart committed a major economic offense, we affirm.

FACTS

In June 2005 Malissa Stewart began employment as a cashier at a drugstore. Over the next three months, beginning a few weeks into her employment, Stewart gave numerous patrons unauthorized discounts. The discounts amounted to about $1,420. The state charged Stewart with theft by swindle and theft by false representation. She pleaded guilty to theft by swindle, and the state dismissed the remaining charge. The district court found that Stewart committed a major economic offense and sentenced her to a stayed sentence of 24 months’ imprisonment. The sentence is an upward durational departure from the presumptive stayed sentence of 13 months’ imprisonment. Stewart appeals, arguing that substantial and compelling circumstances do not support the departure from the sentencing guidelines.

D E C I S I O N

The sentences set forth in the Minnesota Sentencing Guidelines are presumed appropriate for the crimes to which they are applied. Minn. Sent. Guidelines II.D. The district court must impose the presumptive sentence unless substantial and compelling circumstances in an individual case support departing from the guidelines. Id. But the district court also has broad discretion to impose a sentence that departs from the guidelines, and we review its departure decision for an abuse of discretion. State v. Thompson, 720 N.W.2d 820, 828 (Minn. 2006).

The sentencing guidelines provide a nonexclusive list of aggravating factors that may support a departure from the presumptive guidelines sentence, including the commission of a major economic offense. Minn. Sent. Guidelines II.D.2.b(4). A major economic offense is “an illegal act or series of illegal acts committed by other than physical means and by concealment or guile to obtain money or property, to avoid payment or loss of money or property, or to obtain business or professional advantage.” Id. The guidelines list five circumstances and specify that an aggravating factor exists when at least two of these circumstances are present. Id. The circumstances are an offense that: (1) involved multiple victims or multiple incidents against the same victim; (2) involved “an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statutes”; (3) involved a “high degree of sophistication or planning or occurred over a lengthy period of time”; (4) involved the defendant’s use of her position or status to commit the offense; or (5) was similar to other conduct the defendant has been involved with in the past. Id. Neither party suggests that the fifth circumstance applies in this case.

The district court did not abuse its discretion. Stewart waived her right to have a jury determine whether any aggravating factors existed. The court adopted as its own findings written comments submitted by the state before the sentencing hearing. Through this adoption, the district court found that Stewart committed a major economic offense. At the hearing, the court also commented that Stewart committed the offenses shortly after beingsentenced for two felony controlled-substance crimes and while on a medical furlough from a correctional center, and that she exploited a special relationship by stealing from her employer. The court’s findings are supported by the record and demonstrate the existence of at least two of the major-economic-offense circumstances articulated in the sentencing guidelines.

The first circumstance is present because Stewart committed multiple acts of theft against the same victim, her employer. The store reviewed all of Stewart’s transactions as a cashier and determined that, although some of her price adjustments were valid, she gave unauthorized “deep discounts” on 33 occasions. Stewart counters that the district court used the same conduct to punish her twice. A merited double-counting concern arises when an offender is convicted of and sentenced for multiple counts and the court uses conduct underlying one count to support an aggravating factor on another count. See, e.g., Thompson, 720 N.W.2d at 830 (holding that district court erred by using conduct underlying one conviction to support upward departures for separate convictions); State v. O’Hagan, 474 N.W.2d 613, 624 (Minn. App. 1991) (holding that district court could not use multiple victims as aggravating factor when defendant was convicted of and sentenced on separate counts for each of two victims, but court could consider multiple incidents against each victim), review denied (Minn. Sept. 25, 1991). Because Stewart was charged with one count of theft by swindle, which required proof only that she stole $500, her double-counting argument is not persuasive.

As to the second circumstance, Stewart’s theft of $1,420 is not substantially greater than the usual offense. See State v. Fields, 423 N.W.2d 390, 393 (Minn. 1988) (holding that $1,750 loss was not substantially greater than typical amount involved in forgery offense). But the statute under which Stewart was charged provides a minimum loss of $500, and she swindled nearly three times this amount. Minn. Stat. § 609.52, subd. 3(3)(a) (2004). The district court therefore did not abuse its discretion by finding this circumstance present. See State v. Woelfel, 621 N.W.2d 767, 775-76 (Minn. App. 2001) (affirming finding of major economic offense when each count of theft involved double or triple minimum statutory amount), review denied (Minn. Mar. 27, 2001).

Stewart asserts that the third circumstance is absent because her swindling did not involve a high degree of sophistication or planning. This may be so, but her unauthorized discounts spanned over three months, and the length of an offense is a consideration separate from the underlying planning or sophistication. See Minn. Sent. Guidelines II.D.2.b(4)(c) (directing factfinder to consider whether “the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time” (emphasis added)). This court has found two months to constitute a “lengthy period of time.” State v. O’Brien, 429 N.W.2d 293, 296 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988); see also State v. Simmons, 646 N.W.2d 564, 568 (Minn. App. 2002) (affirming upward departure for major economic offense that spanned three months), review denied (Minn. Sept. 17, 2002).

Finally, the fourth circumstance is present because Stewart committed her crimes through her position as a cashier. Her employer trusted that she would handle financial transactions for the company and charge its customers the appropriate amount. Stewart repeatedly used her position to charge her own acquaintances significantly less than the retail value of their purchases. See Thompson, 720 N.W.2d at 830-31 (finding circumstance present when defendant used her position as finance manager to facilitate her offense); State v. Hamer, 341 N.W.2d 578, 581 (Minn. App. 1983) (finding circumstance present when defendant used position as bookkeeper to facilitate his offense).

The record supports the district court’s conclusion that at least two of the major-economic-offense circumstances listed in the guidelines are present. We recognize that under the circumstances of this case, a decision not to depart would have fallen well within the district court’s discretion. But the discretion is broad, and we hold thatthe district court did not abuse its discretion by imposing an upward durational departure from the presumptive guidelines sentence.

Affirmed.