Opinion
No. C3-95-2667.
Filed May 14, 1996
Appeal from the District Court, St. Louis County, File No. KX-94-600902.
Hubert H. Humphrey III, Attorney General, (for Respondent)
Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for Appellant)
Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
Unpublished Opinion
Appellant pleaded guilty to felony theft over $2,500. He challenges his executed sentence of 36 months, a dispositional and durational departure from the presumptive 18-month probationary sentence for this crime, given appellant's criminal history score of2. The trial court based its sentence on evidence demonstrating that appellant is unamenable to probation and on the court's determination that appellant's conduct was significantly more serious than conduct typically involved in the commission of the crime for which he was being sentenced. We affirm.
Facts
The victim's daughter invited 18-year-old appellant Miles Gilbran Johnson and two other friends to the victim's home late one night. The victim's daughter went to sleep, while appellant and one of his friends played pool and watched television. The next day, the victim reported $48,000 in cash and several items of jewelry stolen from his bedroom safe. Two days later, a clerk at a Shopko store alerted Duluth police that appellant and his friend had paid for $553-worth of goods with $50 bills. Duluth police questioned appellant and his friend. The police retrieved $925 from appellant and $210 from appellant's friend.
After their release, appellant and his friend embarked on a nation-wide vacation, covering their costs with the money stolen from the victim. Appellant and his friend eventually were arrested in Florida. Appellant testified that, aside from the money confiscated by Florida and Duluth police, none of the victim's money remained, thus leaving the victim with a $46,606 loss.
Decision
Appellant contends the trial court abused its discretion when it ordered a sentence that was both a dispositional and durational departure from the presumptive sentence. The Minnesota Sentencing Guidelines provide that the district court "shall" use the presumptive sentence in the guidelines "unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines, II.D. The decision whether substantial and compelling circumstances exist for a departure from the sentencing guidelines is within the trial court's discretion and will not be reversed absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). If the record supports the finding that substantial and compelling circumstances exist, the reviewing court should not modify the departure unless it has a "strong feeling" that the sentence is disproportional to the offense. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).
The trial court found that appellant's unamenability to probation was a substantial and compelling circumstance justifying a dispositional departure from the presumptive sentence. We agree. The sentencing court may use unamenability to probation as a factor in deciding whether to depart dispositionally. State v. Brigger, 316 N.W.2d 512, 513 (Minn. 1982).
Appellant's criminal record showed he was 18 years old, already had seven prior convictions in adult court, and was on probation when he committed this theft. This evidence supports the finding appellant was unamenable to probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (stating that factors to consider when deciding whether defendant is amenable to probation include: defendant's age, prior record, remorse, cooperation, attitude while in court, and support of friends and/or family). The probation officer's report and recommendation that appellant serve his sentence also support the imposition of an executed sentence here. See State v. Blegen, 387 N.W.2d 459, 464 (Minn.App. 1986) (sentencing court uses probation officer's opinion for dispositional purposes, but not for durational departure), review denied (Minn. July 31, 1986); see also State v. Doherty, 419 N.W.2d 624, 628 (Minn.App. 1988) (stating that appellate court "may affirm the dispositional departure if there is support for the decision in either the sentencing report or the record"). The trial court did not abuse its discretion in relying on these facts to depart dispositionally.
Appellant claims the trial court abused its discretion when it further penalized him by imposing a double durational departure. He argues that the trial court erroneously construed the theft as a "major economic offense" and a reason for departure. To the contrary, the trial court did not rely on the construction of the appellant's theft as a "major economic offense" to depart durationally, but instead relied on the relative seriousness of appellant's theft and appellant's exploitation of trust.
In deciding whether to depart durationally, the sentencing court had to decide whether appellant's conduct "was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); see also State v. Carr, 361 N.W.2d 397, 402 (Minn. 1985) (upholding durational departure because defendant's conduct was more serious than usual receipt of stolen property offense where he paid drugs for stolen property, and offenses occurred over period of time and involved many victims); State v. Hagen, 361 N.W.2d 407, 414 (Minn.App. 1985) (affirming departure where offense was more serious than usual second-degree arson because defendant intentionally planned to gain economically from it), review denied (Minn. Apr.18, 1985).
In assessing the seriousness of appellant's crime, the trial court properly compared the value of the property stolen with the statutory amount. See State v. Myers, 416 N.W.2d 736, 738 (Minn. 1987) (court may consider value of stolen property when assessing seriousness of crime).
The test is whether the value of the property is " substantially and significantly more than that involved in the typical case." State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).
Here, appellant stole approximately $46,600, nearly 19 times the statutory minimum of the crime for which he was sentenced. See Minn. Stat. ___.52, subd. 3(2) (1994) (theft of $2,500 or more). The value of the stolen property supports the trial court's determination that the crime appellant committed was significantly more serious than the usual theft of over $2,500, thus justifying a double durational departure in sentencing. Cf. State v. Pittel, 518 N.W.2d 606, 608-09 (Minn. 1994) (theft of nearly $25,000 justified upward departure); Myers, 416 N.W.2d at 738 (affirming upward departure where defendant possessed stolen property valued at 40 times statutory amount).
The trial court determined that a durational departure was also justified, because appellant abused the position of trust he was accorded as a guest in the victim's home. A crime committed in the victim's home by an invitee may be considered an exploitation of trust which constitutes an aggravating factor in determining whether to depart durationally. State v. Volk, 421 N.W.2d 360, 366 (Minn.App. 1988), review denied (Minn. May 18, 1988); see also State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985) (abuse of trust relationship between victim and perpetrator may support durational departure from the sentencing guidelines).
The trial court found,
During the nighttime hours, while *** others slept in the home, [appellant] and his accomplice took advantage of their guest status in this home to steal the $48,600 cash from a locked safe in an upstairs bedroom/office.
Appellant contends that exploitation of trust may only be used as an aggravating factor to justify a durational departure if a property is a "major economic offense." We disagree. Although the Minnesota Sentencing Guidelines only mention the exploitation of trust as an aggravating factor in the context of a "major economic offense," the mitigating and aggravating factors listed by the sentencing guidelines are a " nonexclusive list of factors which may be used as reasons for departure." Minn. Sent. Guidelines II.D.2. Courts using exploitation of trust as an aggravating factor have not confined its use to major economic offenses. See State v. Schmit, 329 N.W.2d 56, 58 (Minn. 1983) (upholding durational departure when defendant exploited wife's trust by killing her after she went to sleep in his presence).
Finally, appellant argues no exploitation of trust occurred here, because the victim's daughter, not the victim, invited appellant into the home. The trial court found this argument without merit. We agree. The daughter had a key to the victim's home. Moreover, the victim was present, albeit asleep, when his daughter invited appellant into the home. The exploitation of trust by appellant is a substantial and compelling factor which justifies departure from the presumptive sentencing guidelines.