This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-984

State of Minnesota,

Respondent,

vs.

John Rocky Mendenhall,

Appellant.

Filed February 25, 1997

Crippen, Judge

Affirmed

Crow Wing County District Court

File No. K7-95-1604

Hubert H. Humphrey, III, Minnesota Attorney General; Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101 (for Respondent)

John M. Stuart, Minnesota State Public Defender; Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Ave. S.E., Minneapolis, Minnesota, 55414 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Harten, Judge and Kalitowski, Judge.

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

CRIPPEN, Judge

The trial court denied appellant John Mendenhall's motion for a new trial and a downward departure from the presumptive sentence for aggravated robbery. We affirm.

FACTS

A jury found appellant guilty as a party to the robbery of a Brainerd bar. Bartender Belinda Arms testified that she became involved in a dispute with appellant over the bar's stereo system, which she previously had asked appellant not to touch. Appellant became angry and responded, "Shut up, bitch." About a minute later, appellant and his acquaintance were behind the bar. The acquaintance jumped on top of Arms, punched her in the face, and told her to take her shorts off. Arms managed to escape and run across the street to another bar, where a bouncer phoned the police. Appellant and his acquaintance left with money bags from the bar's safe and fled in a vehicle driven by appellant. The police apprehended the two after they refused to stop when signaled and subsequently fled on foot.

Appellant's acquaintance pleaded guilty to aggravated robbery and was sentenced to 84 months. Appellant was convicted by a jury and sentenced to 88 months, the presumptive sentence under the Minnesota Sentencing Guidelines, and to a six-month consecutive sentence for attempted escape. This appeal followed.

D E C I S I O N

1.

Appellant argues that he was entitled to a downward durational departure in sentencing because his role in the robbery was "minor or passive." A trial court may order a downward departure in sentencing under "substantial and compelling" circumstances. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). But the mere presence of mitigating factors does not obligate the court to impose a shorter than presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). And it is well-settled that a reviewing court rarely will disturb the trial court's exercise of discretion in cases where the sentence imposed is within the presumptive range. Kindem, 313 N.W.2d at 7; State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988) (citations omitted), review denied (Minn. Apr. 15, 1988).

Although appellant believes that he was entitled to the downward departure because he was less culpable than his acquaintance, the record contains abundant evidence supporting the court's decision. This evidence includes Arms' testimony that appellant came behind the bar with the other robber; dug through the till pulling out cash; said to Arms, "I know this isn't all of it. Where's the rest, bitch?"; carried the money bags out of the bar; and drove the getaway car. Although the trial court may have based a downward departure on appellant's relatively more passive role in the robbery, its refusal to do so is supported by the record and was not an abuse of discretion.[1]

2.

Appellant further argues that he was denied his constitutional right to a fair trial by the trial court's refusal to declare a mistrial after two potential jurors saw him in the company of uniformed police officers. Appellant believes that he was prejudiced because he used two peremptory challenges to remove these jurors from the pool.

To succeed on a request for a new trial based on a claim that he was deprived of an impartial jury, an appellant must show that actual prejudice resulted from the failure to dismiss the juror and that he made an appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). And it is settled that a defendant who does not exhaust his peremptory challenges is not prejudiced by the need to remove a juror who should have been excluded for cause. State v. Barlow, 541 N.W.2d 309, 312 (Minn. 1995). Appellant has not shown that he needed or wanted additional peremptory challenges and has not otherwise shown prejudice connected with the incident he cites.

Moreover, because no transcript was made of the voir dire, we have no record to permit us to know how the court addressed appellant's objections to the jurors or to judge the severity of the problems he raised. We are not presented with any appearance of error on the part of the trial court in its denial of appellant's motion for a new trial.

Affirmed.

[ ]1 Appellant's acquaintance pleaded guilty to aggravated robbery and was sentenced to 84 months. Although appellant believes that he was entitled to receive a sentence no longer than his acquaintance's sentence of 84 months, this belief is unsupported by law. State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983) (stating that there is no requirement that a defendant's sentence be no longer than the sentence given an accomplice).