This opinion will be unpublished and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

C6-96-2026

State of Minnesota,

Respondent,

vs.

Michael Timothy Schroeder,

Appellant.

Filed March 11, 1997

Affirmed

Norton, Judge

Ramsey County District Court

File No. K2-94-3904

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

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

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Huspeni, Judge.

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

NORTON, Judge

Appellant challenges his sentence for aiding and abetting attempted second-degree murder. The record supports the trial court's bases for the upward durational departure. We affirm.

FACTS

The incident in this case occurred after victim Brian Kohler approached appellant Michael Timothy Schroeder and three other young men to purchase marijuana. Although the four men initially agreed to the sale, they later decided to rob Kohler instead. The robbery took place in the back seat of the car that appellant was driving. Appellant observed the robbery and acted as lookout. A struggle ensued over a gun. Appellant heard a gunshot. One of the assailants pushed Kohler out of the car; the bullet had struck Kohler in the back of the head, severed his spinal cord, and paralyzed him from the neck down. The four men drove away with $80-100 they had stolen from Kohler. They proceeded to a hotel, where appellant rented a room, and they had a party.

Appellant pleaded guilty to aiding attempted second-degree murder. The state sought an upward durational departure. The court sentenced appellant to a 216-month term of imprisonment, which is an upward durational departure from the guidelines sentence of 153 months.

D E C I S I O N

We review the trial court's sentencing decisions under an abuse of discretion standard. State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995), cert. denied, 116 S. Ct. 1362 (1996). The court must impose the guidelines sentence unless the case involves "substantial and compelling circumstances" that justify departure. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Appellant contends the trial court abused its discretion by departing from the guidelines sentence, because the record does not support the trial court's reasons for departure. We disagree.

As the first basis for the departure, the trial court noted that appellant treated the victim "with particular cruelty in that he was shot and abandoned and you made no effort to have assistance rendered to him." This court has recognized that a person's failure to seek assistance for a victim, even anonymously, is particular cruelty that relates back to the crime and supports an upward durational departure. State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983). Appellant contends the record does not support this basis for departure, because appellant did not know that Kohler had been shot.

At the guilty plea hearing, however, appellant said he "didn't know where [Kohler] had gotten shot" (emphasis added). Implicit in this statement is appellant's knowledge that Kohler had indeed been shot. The basic facts surrounding the incident also suggest that appellant knew that Kohler had been somehow incapacitated because, after the gunshot, the fighting ceased and the other men dumped Kohler out of the car without a struggle. The record also shows the men made no effort to send help for Kohler. On the contrary, appellant checked them into a hotel and they celebrated. This record supports the trial court's finding of particular cruelty to the victim.

As a second basis for departure, the trial court found, "[Y]ou committed this crime as a part of a group of three or more persons who all actively participated in the crime." See Minn. Sent. Guidelines II.D.2.b(8) (listing this factor as ground for departure). Appellant concedes that this factor applies because he did participate with three other men in this crime.

Appellant argues that his remorse over this incident is a mitigating factor that should have compelled a downward departure. Generally, a defendant's remorse, or lack thereof, affects only the decision to depart dispositionally, not durationally. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). There could be the case, however, when the defendant's remorse relates back as evidence relating to the cruelty of the offense. State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984). As proof of his remorse, appellant cites a letter to the court and his testimony at the guilty plea and sentencing hearings.

The trial court read the letter and had the opportunity to observe appellant and weigh his credibility when he addressed the court. We defer to the trial court's opportunity to view witnesses, make credibility determinations, and reject appellant's testimony. DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984). The trial court did not abuse its discretion in refusing to reduce appellant's sentence given that appellant and his companions acted with complete disregard for Kohler's life merely to rob him of a few dollars, that appellant took no action to assist Kohler after the incident, and that appellant went to a hotel and had a party after the incident.

The trial court did not abuse its discretion when sentencing appellant because the record supports the reasons for departure.

Affirmed.