                          This opinion will be unpublished and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
                                     A15-1521

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Duane Meredith Smith,
                                       Appellant.

                                   Filed June 13, 2016
                                Affirmed; motion granted
                                      Jesson, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-33501


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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         After pleading guilty to first-degree criminal sexual conduct, appellant Duane

Smith was sentenced to 100 months in prison, a downward durational departure. He
argues that the district court abused its discretion by denying his motion for a downward

dispositional departure. We affirm.

                                         FACTS

       In November 2014, Smith was charged with one count of first-degree criminal

sexual conduct. The complaint alleged that Smith, who was 61 years old, sexually

assaulted his 13-year-old grandnephew.        Smith was visiting from Texas, and his

grandnephew was staying with him. They slept in the same bed. During the night, Smith

pulled down the grandnephew’s pants, touched his penis, and “sucked” on his penis for

“like two minutes.” The next morning, Smith apologized and told the victim that they

should keep silent about what happened between them. The victim told Smith that he

was going to tell his parents. Before he went back to Texas, Smith confessed the sexual

assault to the victim’s mother.

       In May 2015, Smith pleaded guilty.         In a pre-plea investigation, probation

recommended the presumptive sentence of 144 months in prison. Smith admitted to

probation that a number of years ago he had molested two of his nephews when they

were approximately the same age as the victim in this case. The probation officer

expressed concern about these prior assaults and statements by Smith minimizing his

responsibility for the current offense. The probation officer was also skeptical of Smith’s

claim that, other than the current offense and the prior incidents involving his nephews,

he had not sexually assaulted any children.

       A psychosexual report was also completed.        The report lists Smith’s risk of

reoffending as moderate. The report concludes that Smith is a “strong candidate” for sex


                                              2
offender treatment. But the report also states reservations about this prognosis given

“remaining questions as to the longevity and frequency of [Smith’s sexually deviant]

behaviors.”

         Prior to sentencing, Smith filed a motion for a downward dispositional departure

or, in the alternative, a downward durational departure. At sentencing, the state requested

the presumptive sentence. The state mentioned Smith’s prior sex abuse of similarly aged

family members and the impact of the offense on the victim and the victim’s parents.

Smith’s attorney asked for a departure, noting that Smith had family support, that Smith

told the victim’s mother about his behavior, that Smith was abused as a child, and that

Smith wanted help to address his issues.

         The district court granted Smith’s motion for a downward durational departure but

denied his motion for a dispositional departure. The district court sentenced Smith to 100

months in prison, a 44-month downward durational departure. This appeal follows.

                                     DECISION

         Under the Minnesota Sentencing Guidelines, the district court sentences an

offender based on a presumptive sentencing range. Minn. Sent. Guidelines 2.D.1 (Supp.

2013). The district court must impose a sentence within that range unless substantial and

compelling circumstances exist to depart. State v. Soto, 855 N.W.2d 303, 308 (Minn.

2014).

         There are two kinds of sentencing departures: durational and dispositional. Minn.

Sent. Guidelines 2.D.1. The district court imposes a downward durational departure

when it pronounces a shorter sentence than prescribed by the presumptive sentencing


                                             3
range. Deegan v. State, 711 N.W.2d 89, 92 (Minn. 2006). The district court imposes a

downward dispositional departure when the sentencing guidelines call for an executed

prison term, and the district court instead stays a prison sentence and orders probation.

State v. Trog, 323 N.W.2d 28, 30-31 (Minn. 1982). The district court “may depart from

the presumptive disposition without departing from the presumptive duration, and vice-

versa.” Minn. Sent. Guidelines 2.D.1.a. Here, the district court granted Smith’s motion

for a downward durational departure but denied his motion for a downward dispositional

departure and imposed the presumptive disposition of imprisonment.

       A defendant’s “‘particular amenability to individualized treatment in a

probationary setting’” supports a dispositional departure.      Soto, 855 N.W.2d at 308

(quoting Trog, 323 N.W.2d at 31).         Trog outlines the factors that may justify a

dispositional departure and states that “the defendant’s age, his prior record, his remorse,

his cooperation, his attitude while in court, and the support of friends and/or family, are

relevant to a determination whether a defendant is particularly suitable to individualized

treatment in a probationary setting.” 323 N.W.2d at 31. But the presence of one or more

of these mitigating factors does not require the district court to depart. State v. Wall, 343

N.W.2d 22, 25 (Minn. 1984).

       Although the district court must give reasons for a departure, an explanation is not

required when the court considers reasons for departure but imposes a presumptive

sentence. State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). We afford the

district court “great discretion” in sentencing and will reverse only for an abuse of that

discretion. Soto, 855 N.W.2d at 307-08 (quotation omitted). “[A]s long as the record


                                             4
shows the [district] court carefully evaluated all the testimony and information presented

before making a determination,” we will not interfere with the district court’s exercise of

discretion. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).

We reverse a presumptive sentence only in rare cases. State v. Kindem, 313 N.W.2d 6, 7

(Minn. 1981).

       At Smith’s sentencing, the district court noted that both the state and Smith made

“some good points.”        The district court acknowledged that Smith had “taken

responsibility early” and had spared the victim from testifying by pleading guilty. The

district court determined, however, that “in a case as serious as this” Smith’s acceptance

of responsibility was not enough to warrant a dispositional departure. In denying the

dispositional departure, the district court also noted that Smith had admitted to sexually

abusing other children. In granting Smith’s motion for a durational departure, the district

court pointed to the fact that Smith was abused as a child and said that this led to mental

health issues that make “the offense less serious.”

       Smith argues that he is particularly amenable to probation and that the district

court abused its discretion by denying the dispositional departure.       Smith cites the

following factors as evidence of his amenability to probation: he was in his sixties at the

time of the offense and had no criminal-history score; he showed remorse and accepted

responsibility for his crime; he presented letters from two of his sisters showing that he

had family support; he recognized his problem and was committed to getting treatment;

and he was a “strong candidate” for sex offender treatment. In addition, Smith points to

statistics showing that 66% of offenders with no criminal history score who are sentenced


                                             5
for first-degree criminal sexual conduct receive a dispositional departure. Smith also

points out that the district court recognized the existence of grounds for departure and did

not make a specific finding that he was unamenable to probation.

       Smith’s arguments are without merit. The presence of grounds for departure does

not require the district court to depart. Wall, 343 N.W.2d at 25. Moreover, the district

court acted within its discretion by rejecting Smith’s statistical argument. The district

court considered both parties’ evidence and arguments, stating that both sides had made

“good points.” By noting that Smith had taken responsibility, spared the victim by

pleading guilty, and had mental health issues, the district court showed that it considered

Smith’s position and possible departure grounds. Although the district court did not

make an explicit finding that Smith was unamenable to probation, the district court need

not state its reasons for imposing the presumptive disposition. Van Ruler, 378 N.W.2d at

80. The record merely needs to show that the district court carefully considered all the

information presented before making its decision. Pegel, 795 N.W.2d at 255.

       Furthermore, the district court did note the reasons it chose not to grant Smith’s

motion for a dispositional departure. The district court determined that, due to the

seriousness of the offense and Smith’s admitted prior victimization of similarly aged

family members, a dispositional departure was not appropriate. The district court implied

that it believed Smith was not particularly amenable to treatment in a probationary

setting, in part, because his prior, uncharged conduct showed he was at risk to reoffend.

Our supreme court has indicated that the seriousness of the offense and the risk to public

safety are appropriate considerations when addressing a motion for a downward


                                             6
dispositional departure. Soto, 855 N.W.2d at 313. The district court’s position regarding

Smith’s prior sexual assaults was supported by the psychosexual evaluation and the

probation officer’s recommendation, which indicated concerns about this prior conduct

and the possibility that Smith had a higher risk of reoffending than his criminal history

showed.

      Smith cites to State v. Mendoza and State v. Curtiss in support of the proposition

that when reasons for departure exist the district court must “deliberately” compare them

“side-by-side” with reasons for non-departure.     Mendoza, 638 N.W.2d 480, 483-84

(Minn. App. 2002), review denied (Minn. Apr. 16, 2002); Curtiss, 353 N.W.2d 262, 263-

64 (Minn. App. 1984).      These cases generally support this proposition but are not

comparable to the instant case. In both Mendoza and Curtiss, remand was necessary

because the district court failed to exercise its discretion by ignoring factors that

supported departure. Mendoza, 638 N.W.2d at 484; Curtiss, 353 N.W.2d at 264. Unlike

Mendoza and Curtiss, the district court in this case identified factors that favored

departure and factors that favored non-departure.       The district court exercised its

discretion by weighing those factors and deciding to reject Smith’s motion.




                                            7
      The record shows that the district court carefully evaluated the information

presented by the parties prior to making its determination. The district court did not

abuse its discretion by denying Smith’s motion for a downward dispositional departure.1

      Affirmed; motion granted.




1
  Smith filed a late pro se supplemental brief together with a motion to accept the late
brief. Smith’s motion is granted. We have reviewed and considered Smith’s pro se brief.
As it does not raise any new legal issues and simply presents Smith’s version of the facts,
the pro se brief does not affect our analysis.

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