                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0954

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                Elijah Emmanual Maddox,
                                        Appellant.

                                   Filed May 23, 2016
                                        Affirmed
                                       Ross, Judge

                                Scott County District Court
                                 File No. 70-CR-14-5773

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for
appellant)

         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Elijah Maddox pleaded guilty to aiding and abetting first-degree burglary while

possessing a dangerous weapon for his part in a late-night home invasion in Scott County.
Maddox appeals his 93-month prison sentence, arguing that the district court abused its

discretion by departing upward from the presumptive term under the sentencing guidelines.

We affirm the sentence because the district court acted within its discretion when it

determined that Maddox’s crew committed the crime in a more serious fashion than the

typical burglary based on the group-nature of the intrusion.

                                           FACTS

       Elijah Maddox was familiar with a home in Scott County because he had spent time

there when he was in middle school. He had befriended the homeowner’s son, but the

family had barred Maddox from visiting after he stole video games and cash. In April 2014,

Maddox capitalized on his familiarity with the home’s layout, suggesting to his friends

William Underhill, Isiah Benitez, and then-juvenile M.N., that they burglarize it. Maddox

drove the three to the house after midnight.

       The four men took a rifle with them. They approached the house and Maddox

decided to return to the car while the others threw a planter through a window and entered.

The breaking glass startled the homeowners, a couple who had been asleep in their

bedroom. One of them got out of bed, and as he approached the French door that led to the

rest of the house, Underhill opened it. The man reacted by quickly slamming the door,

through which one of the intruders then fired several bullets at about chest level. The bullets

missed the couple. One of them dialed 9-1-1, and the three burglars ran from the house.

       Underhill, Benitez, and M.N. got back into the car where Maddox was waiting.

Underhill drove as Maddox directed him. Maddox soon decided to part with the other three

men, who planned more break-ins. They dropped Maddox off at a fast-food restaurant.


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Police caught up with the trio in a neighboring city several hours later after they broke into

a school. Police arrested them, found a rifle in the car, and soon matched them to the home

invasion.

       Within days, police also linked Maddox to the group and arrested him. The state

charged Maddox with a host of aiding-and-abetting crimes: second-degree attempted

murder, first-degree burglary of an occupied dwelling, first-degree burglary with

possession of a dangerous weapon, first-degree burglary involving assault of a person

within the building, and second-degree assault with a dangerous weapon. Maddox pleaded

guilty to aiding and abetting first-degree burglary with possession of a dangerous weapon

in violation of Minnesota Statutes section 609.582, subdivision 1(b) (2012). The state

agreed in exchange to dismiss the other charges.

       Maddox faced a prison sentence with a presumptive range of 50 to 69 months. The

state urged the district court to depart upward to the 240-month statutory maximum term,

emphasizing that Maddox committed the crime in a group of three or more offenders and

that the crime occurred where the victims had an expectation of privacy, citing Minnesota

Sentencing Guidelines 2.D.3.b.(10), (14) (Supp. 2013). Maddox waived his right to a

Blakely hearing on the allegedly aggravating circumstances.

       The district court rejected the state’s privacy-intrusion argument because that factor

mirrored the conduct that constituted burglary of a dwelling—a charge that the state had

dismissed. But the court decided that because Maddox committed the burglary with three

other actively participating offenders, his sentence was subject to an upward departure. The

district court imposed a 93-month sentence.


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       Maddox appeals.

                                      DECISION

       Maddox appeals the district court’s upward sentencing departure. We review a

district court’s decision to depart from the sentencing guidelines for an abuse of discretion.

State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). A court may not depart from the

presumptive sentence unless it finds substantial and compelling reasons to depart. State v.

Misquadace, 644 N.W.2d 65, 69 (Minn. 2002). “Substantial and compelling” reasons for

a durational departure are those circumstances that show that the defendant’s conduct was

significantly more or less serious than conduct typically involved in the commission of the

crime of conviction. Hicks, 864 N.W.2d at 157. We will affirm the departure only if the

district court’s reasons are legally permissible and factually supported. Id. at 156.

       We are not persuaded by Maddox’s contention that the district court abused its

discretion by imposing the 24-month upward departure. We think instead that the district

court rightly concluded that his conduct was significantly more serious than that typically

involved in the commission of first-degree burglary with a dangerous weapon. The district

court found that the crime was committed by three or more actively participating offenders,

and this is an aggravating factor specifically contemplated by the sentencing guidelines.

Minn. Sent. Guidelines 2.D.3.b.(10).

       Maddox argues that his conduct actually fit the mitigating factor that “the offender

played a minor or passive role in the crime,” under Minnesota Sentencing Guidelines

2.D.3.a.(2) (Supp. 2013). But the district court did not find Maddox’s role to be minor, and

his instigation and targeting of the victims’ home would seem to defeat the idea. The district


                                              4
court instead found that Maddox actively participated in the crime by planning, casing the

home, acquiring the rifle, and guiding the other men in flight from the victims’

neighborhood. The finding is factually supported. Even if this were not so, Maddox did not

argue to the district court that a mitigating factor existed. We will not consider the argument

for the first time on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

       Maddox implies that the group-of-three-or-more aggravating factor is generally

applied along with other aggravating factors and does not stand alone as a basis for

departure. The notion is wrong. Even a single aggravating factor can support an upward

departure. State v. Mohamed, 779 N.W.2d 93, 97 (Minn. App. 2010), review denied (Minn.

May 18, 2010). And we have specifically held that the group-of-three-or-more factor is

sufficient to support an upward durational departure. State v. Castillo-Alvarez, 820 N.W.2d

601, 623 (Minn. App. 2012), aff’d on other grounds, 836 N.W.2d 527 (Minn. 2013). The

district court’s departure is properly supported by its finding that Maddox committed the

crime as part of a group of three or more offenders, and the finding stands on the evidence.

       Affirmed.




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