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

Ross E. Arneson, Blue Earth County Attorney, Douglas E. Sinclair, Assistant County Attorney, 410 South Fifth Street, Mankato, MN 56001 (for Respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Schultz, Judge.[*]

Appellant alleges that the trial court abused its discretion in refusing to grant him a dispositional departure from his presumptive sentence. The trial court did not abuse its discretion in denying appellant's motion. We affirm.

Under the Minnesota Sentencing Guidelines, appellant's presumptive sentence is 48 months incarceration. A 36-month mandatory minimum sentence is included in this presumptive sentence because appellant used a firearm during the burglary. Minn. Stat. § 609.11, subds. 5, 9 (1996). At his sentencing hearing, appellant asked that, in lieu of his presumptive 48-month prison sentence, he be sentenced to probation. Dr. Paul Reitman, a psychologist; Gil Harrison, a dispositional advisor for the public defender's office; and appellant's girlfriend testified in support of appellant's request for probation.

Dr. Reitman testified that his clinical evaluation of appellant indicated that appellant was amenable to probation because: this was appellant's first offense; appellant has excellent verbal skills; appellant has a strong work ethic; appellant has no mental or personality disorders; appellant has a good family support system; and appellant was remorseful and assumed responsibility for his crime. Dr. Reitman stated that a recent domestic assault incident did not change his opinion that appellant is amenable to probation.[1] Rather, he suggested that, due to this incident, it would be appropriate for appellant to attend outpatient or inpatient chemical dependency treatment.

Harrison testified that a combination of anger counseling, chemical dependency counseling, and probation would be the best alternative for appellant. Harrison observed that appellant has no prior criminal record, is an excellent employee, has been cooperative with the court, and is remorseful. Appellant's girlfriend testified that she lives with appellant and their two children in the home they purchased together. She testified that appellant is a good provider for the family and that it would be difficult for her if he went to prison.

A probation officer present at the sentencing hearing stated that the testimony of these witnesses on appellant's behalf would not cause her to change the probation report's recommendation that appellant serve the presumptive 48-month prison sentence.

The trial court ordered appellant to serve a 45-month sentence and pay restitution. The trial court found that no circumstances justified a departure from appellant's presumptive sentence. Further, the court found it inappropriate to depart for several reasons: the victim was not an aggressor; the grocery store was closed when appellant broke in; appellant did not play a minor or passive role; rather, he was the sole offender; and appellant had no physical or mental impairment. Moreover, the trial court noted that, contrary to appellant's assertion, probation was not his only option for education and treatment because he could complete his G.E.D. educational requirements and obtain alcohol counseling in prison.

Appellant alleges that the trial court abused its discretion because it did not rely on the evidence showing that he is amenable to probation, but rather considered only factors that pertained to a durational departure, such as the fact that appellant was the aggressor and sole offender and had no physical or mental impairment. Generally, a dispositional departure is warranted if a defendant is "particularly amenable to probation or if offense-related mitigating circumstances are present." State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994) (quoting State v. Love, 350 N.W.2d 359, 361 (Minn. 1984)), review denied (Minn. Apr. 21, 1994). The issue regarding a durational departure is whether the defendant's conduct was significantly more or less serious than the typical crime. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).

We disagree with appellant for several reasons. First, Minn. Sent. Guidelines II.D.2 provides that factors that may be used for departure include whether victim was aggressor, role offender played, and if offender lacked physical or mental capacity. Second, the trial court heard evidence regarding appellant's amenability to probation and apparently was not convinced. Indeed, the trial court observed that appellant had not been entirely honest and cooperative during the police investigation. The trial court has the prerogative to weigh evidence and assess the credibility of witnesses. See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (stating that it is trial court's role to weigh conflicting testimony and assess witness credibility). Third, the domestic assault incident in which appellant was involved supports the trial court's conclusion that appellant is not amenable to probation. Fourth, the probation officer recommended, before and after the hearing, that appellant serve the presumptive sentence. Fifth, the trial court recognized that probation is not necessary for appellant to obtain his G.E.D. or receiving counseling. Finally, appellant has pointed to no factors that would justify deviating from the mandatory minimum sentence of 36 months due to his use of a firearm during the burglary.

Appellant refers to only one case where this court disturbed the trial court's refusal to depart from the presumptive sentence: Curtiss, 353 N.W.2d at 263-64. In Curtiss, the defendant pleaded guilty to first-degree burglary for taking 16 bottles of beer from the breezeway of an occupied house. Id. at 263. The court observed that this offense was "barely within the scope of the serious charge of burglary in the first degree." Id. In contrast, this case is precisely the type of situation envisioned by the charge of burglary in the first degree. Appellant broke into a convenience store at night, using a firearm to shatter the store's plateglass windows. Therefore, in contrast to Curtiss, this case presents a factual situation typical of first-degree burglary. See Robinson, 388 N.W.2d at 46 (departure appropriate if circumstances make facts of case atypical).

"[I]t would be a rare case which would warrant reversal of the refusal to depart." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Appellant has not shown that this is such a rare case.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ During the pendency of this matter, appellant was involved in an altercation in his home with his girlfriend, their two young children, and several other friends and relatives. Due to this incident, appellant was charged with: (1) possession of dangerous weapons in violation of Minn. Stat. § 609.66 (1996); (2) domestic assault in violation of Minn. Stat. § 609.2242 (1996); (3) fifth-degree assault in violation of Minn. Stat. § 609.224 (1996); and (4) disorderly conduct in violation of Minn. Stat. § 609.72 (1996).