                        This opinion will be unpublished and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
                                   A15-0291

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Steven Andre Moore,
                                     Appellant.

                               Filed January 11, 2016
                                      Affirmed
                                  Schellhas, Judge

                             Scott County District Court
                              File No. 70-CR-13-8297

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, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and

Reilly, Judge.
                           UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges his sentence for second-degree intentional murder, arguing

that the district court abused its discretion by denying his motion for a downward durational

departure. We affirm.

                                           FACTS

         In April 2013, appellant Steven Andre Moore and two accomplices committed a

home-invasion robbery during which an accomplice shot three victims, one of whom died.

A grand jury indicted Moore for first-degree felony murder, second-degree intentional

murder      (without    premeditation),   first-degree   aggravated    robbery     (dangerous

weapon/bodily harm), and two counts of second-degree assault (dangerous weapon causing

substantial bodily harm).1 Moore pleaded guilty to second-degree intentional murder in

exchange for respondent State of Minnesota’s agreement to dismiss the remaining charges

and to seek the presumptive guidelines sentence. The district court denied Moore’s motion

for a downward durational departure and sentenced him to 306 months’ imprisonment, the

presumptive guidelines sentence.

         This appeal follows.

                                       DECISION

         “[Appellate courts] afford the trial court great discretion in the imposition of

sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.



1
    Each offense was charged with reference to the accomplice-liability statute.

                                               2
Soto, 855 N.W.2d 303, 307–08 (Minn. 2014) (quotation omitted). “The Minnesota

Sentencing Guidelines, however, limit the sentencing court’s discretion by prescribing a

sentence or range of sentences that is presumed to be appropriate.” Id. at 308 (quotation

omitted).

              A sentencing court must pronounce a sentence within the
              applicable range unless there exist identifiable, substantial, and
              compelling circumstances that distinguish a case and overcome
              the presumption in favor of the guidelines sentence.
              Accordingly, a sentencing court can exercise its discretion to
              depart from the guidelines only if aggravating or mitigating
              circumstances are present and those circumstances provide a
              substantial and compelling reason not to impose a guidelines
              sentence.

Id. (emphasis omitted) (quotations and citations omitted).

       “If the district court has discretion to depart from a presumptive sentence, it must

exercise that discretion by deliberately considering circumstances for and against

departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied

(Minn. Apr. 16, 2002); see also State v. Abrahamson, 758 N.W.2d 332, 337 (Minn. App.

2008) (stating that “a district court errs when it fails to consider valid departure factors”),

review denied (Minn. Mar. 31, 2009). “In determining whether to durationally depart from

the guideline sentence, the district court considers whether the defendant’s conduct was

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

crime described in the applicable statute.” State v. Losh, 721 N.W.2d 886, 896 (Minn.

2006) (quotation omitted); see also Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003)

(stating that “‘[s]ubstantial and compelling circumstances’ are those circumstances that

make the facts of a particular case different from a typical case”).


                                              3
       “[Appellate courts] will not ordinarily interfere with a sentence falling within the

presumptive sentence range, either dispositionally or durationally, even if there are grounds

that would justify departure.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006)

(quotation omitted). Indeed, “[the supreme court] ha[s] emphasized that ‘it would be a rare

case which would warrant reversal of the refusal to depart.’” Id. (quoting State v. Kindem,

313 N.W.2d 6, 7 (Minn. 1981)); see also State v. Johnson, 831 N.W.2d 917, 925 (Minn.

App. 2013) (stating that “[w]e will affirm the imposition of a presumptive guidelines

sentence when the record shows that the sentencing court carefully evaluated all the

testimony and information presented before making a determination” and that “[o]nly the

rare case will merit reversal based on the district court’s refusal to depart” (quotations

omitted)), review denied (Minn. Sept. 17, 2013).

       Moore argues that the district court abused its discretion by denying his motion for

a downward durational departure because “his conduct [wa]s significantly less serious than

that of an offender who acts with the intent to take the life of another person” and “[t]his

was a sufficient mitigating factor warranting a downward durational departure.” But at his

plea hearing, Moore admitted that he had actively participated in the planning and

execution of the robbery and had known that one of his accomplices was carrying a gun.

He also admitted that he did not take available opportunities to terminate the robbery plan

or end his involvement in the robbery, and he agreed that death is a foreseeable result of

armed robbery. By intentionally aiding or conspiring to commit an armed robbery, Moore

became criminally liable for his accomplice’s ultimate commission of second-degree

intentional murder, which was reasonably foreseeable as a probable consequence of the


                                             4
robbery. See Minn. Stat. §§ 609.05, subds. 1, 2 (describing accomplice liability), .19, subd.

1 (defining second-degree intentional murder) (2012). Moore’s conduct was not

significantly less serious than conduct typically resulting in accomplice liability for second-

degree intentional murder; therefore, no substantial and compelling reason justified a

durational departure from the guidelines sentence. See Losh, 721 N.W.2d at 896 (“In

determining whether to durationally depart from the guideline sentence, the district court

considers whether the defendant’s conduct was significantly more or less serious than that

typically involved in the commission of the crime described in the applicable statute.”

(quotation omitted)); Taylor, 670 N.W.2d at 587 (stating that ‘“[s]ubstantial and

compelling circumstances’ are those circumstances that make the facts of a particular case

different from a typical case”). Without such a reason, the court did not abuse its discretion

by not departing. See Soto, 855 N.W.2d at 308 (“[A] sentencing court can exercise its

discretion to depart from the guidelines only if aggravating or mitigating circumstances are

present.” (quotation omitted)).

       Here, the record reflects that the district court deliberately considered circumstances

for and against departure. We conclude that the court did not abuse its discretion by denying

Moore’s motion for a downward durational departure even if there were grounds that would

have justified departure.

       Affirmed.




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