                          This opinion will be unpublished and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
                                     A16-0212

                                    State of Minnesota,
                                         Appellant,

                                            vs.

                                      Boon Wa Thao,
                                       Respondent.

                                   Filed August 1, 2016
                                         Affirmed
                                       Jesson, Judge

                             Washington County District Court
                                File No. 82-CR-14-1064

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

Peter Orput, Washington County Attorney, Thomas Wedes, Assistant County Attorney,
Stillwater, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Frank Richard
Gallo, Jr., Assistant Public Defenders, St. Paul, Minnesota (for respondent)

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

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         The state appeals from the district court’s decision imposing dispositional

departures from the presumptive sentences for three felonies committed by respondent
Boon Wa Thao. Because the district court did not abuse its discretion by departing

dispositionally based on its findings that respondent is particularly amenable to probation,

we affirm.

                                         FACTS

       Boon Wa Thao, who is married in the Hmong culture, discovered that his wife was

involved in a sexual relationship with her male coworker, V.X. She arranged to meet V.X.

in the evening outside their workplace, but on arriving, V.X. entered her van and

discovered that Thao was also in the van. Thao stated that he knew about the affair and

demanded that V.X. reimburse him funds that he had paid for the privilege of marrying his

wife. V.X. refused to pay and denied the affair.

       Thao directed his wife to drive to a Wal-Mart, where they drove around slowly for

about ten minutes, and V.X. attempted to escape. Thao told V.X. that if he tried that again,

Thao would kill him. Thao then told his wife to drive toward Taylors Falls. On the way,

V.X. stated that he needed to use the restroom, and Thao allowed him to exit the van in a

dark, sparsely populated area. Thao, who was carrying a machete-style knife, also left the

van. Thao held on to V.X.’s shirt with his left hand while carrying the knife in his right

hand, V.X. tried to break free, and the men scuffled. Thao swung the knife and cut V.X.

behind his left ear. V.X. ran toward the nearest house, discovered it was dark, and reversed

course. As he passed, Thao raised the knife and inflicted a deep gash along V.X.’s jawline.

V.X. reached a home to seek help, police were called, and V.X. was transported to the

hospital, where he received treatment for his severe wound, which is likely to result in

permanent nerve damage and scarring.


                                             2
       After an investigation, the state charged Thao by amended complaint with aiding

and abetting attempted second-degree intentional murder, aiding and abetting first-degree

assault, and kidnapping. Thao waived his right to a jury trial, and the district court found

him guilty of all three counts after a three-day bench trial.

       The defense moved for downward durational and dispositional departures. The

district court did not depart durationally, imposing concurrent sentences of 86 months on

the kidnapping charge, 86 months on the assault charge, and 75 months on the attempted-

murder charge. But the district court issued a downward dispositional departure, finding

mitigating factors of Thao’s amenability to probation and his remorse and acceptance of

responsibility. The district court noted that, based on a survey administered during a

presentence investigation, Thao had a very low likelihood of reoffending. The district court

therefore stayed execution of all three sentences, placed Thao on probation for up to 40

years, and ordered him to serve 365 days in jail.

       After a previous appeal and remand,1 the district court sentenced Thao on the murder

conviction to 130.5 months, the lower end of the presumptive sentence, with execution

stayed for 20 years, and conditions including 365 days in jail, with credit for time served.

The district court found that a downward dispositional departure was warranted based on



1
 The state filed a sentencing appeal, and this court reversed and remanded for resentencing,
noting that, based on the correct offense level for aiding and abetting attempted second-
degree intentional murder, the correct presumptive guidelines sentence for that offense was
153 months, not 75 months, and that the district court did not discuss a downward
durational departure. State v. Thao, No. A15-0037 (Minn. App. Aug. 12, 2015) (order
opinion). We expressed no opinion on whether a dispositional or durational departure was
appropriate.

                                              3
Thao’s particular amenability to probation. Specifically, the district court found that he:

(1) scored a nine on the Level of Service Inventory Report, which was in the top 5-10% of

the scores that the judge had seen; (2) had no other antisocial or abusive behavior, but had

held down a responsible job on a long-term basis, served as his mother’s primary caretaker

for a four-year period during her last illness, and served as an active caretaker for his

biological children and his stepchildren; (3) completed an anger-management program in

jail before being ordered to do so and took a leadership position within the group; (4) took

advantage of strong community and cultural support systems; (5) had been compliant

during his previous ten months on probation prior to resentencing; (6) had accepted

responsibility for his crime and expressed remorse; and (7) had his judgment affected by

cultural norms and traditions relating to marriage and fidelity at the time of the offense.

The state appeals the sentencing decision.

                                      DECISION

       This court reviews the district court’s sentencing decision for an abuse of discretion.

State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). “[A]s long as the record shows the

sentencing court carefully evaluated all the testimony and information presented before

making a determination,” an appellate court “may not interfere with the sentencing court’s

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

omitted).

       But the district court’s discretion is limited by the Minnesota Sentencing Guidelines,

and the district court may depart from the presumptive sentence provided in the guidelines

only when substantial and compelling circumstances are present. Soto, 855 N.W.2d at 308


                                              4
(citing Minn. Sent. Guidelines 2.D.1). A mitigated, or downward, dispositional departure

occurs when the sentencing guidelines recommend a prison sentence, but the district court

stays the sentence. Minn. Sent. Guidelines 1.B.4.a.(2) (Supp. 2013). Substantial and

compelling circumstances to justify a downward dispositional departure may be shown if

a defendant is “particularly amenable to probation.” Soto, 855 N.W.2d at 308 (emphasis

omitted).

       On resentencing, the district court issued a downward dispositional departure from

the presumptive sentences for Thao’s offenses, ordering probation rather than

imprisonment. The state argues that the record does not contain evidence that Thao is

particularly amenable to probation, so that the district court abused its discretion by

ordering a downward departure.2

       Typically, a defendant’s amenability to probation is demonstrated by factors such

as “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in

court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn.

1982). While not determinative, diagnostic assessments and presentence investigations are


2
  Thao notes in his brief that the district court may have erred by convicting him of both
aiding and abetting attempted second-degree murder and aiding and abetting first-degree
assault based on a single course of conduct. See Minn. Stat. § 609.035, subd. 1 (2012)
(stating that if a person’s conduct constitutes more than one offense, that person may be
punished for only one offense). But Thao has not filed a notice of related appeal to
challenge the district court’s imposition of concurrent sentences, and this matter is not
properly before this court. See Minn. R. Civ. App. P. 106 (requiring respondent to file
notice of related appeal); Minn. R. Crim. P. 28.04, subd. 3 (requiring a defendant seeking
review of an adverse ruling in the state’s appeal to file a cross-appeal); State v. Bren, 704
N.W.2d 170, 176-77 (Minn. App. 2005) (declining to address an issue raised by respondent
on appeal because respondent did not file a notice of review), review denied (Minn.
Dec. 13, 2005).

                                              5
permissible for the district court to examine as factors in a decision to depart

dispositionally. Soto, 855 N.W.2d at 309. And whether public safety would be served by

placing the offender on probation is relevant to whether the district court abused its

discretion in deciding to stay a presumptively executed sentence. Id. at 313.

       Here, the district court made extensive findings in determining that Thao is

particularly amenable to probation. First, the district court found that Thao attained a score

of nine on the Level of Service Inventory Report, which placed him in a category of

monitored supervision, and which the judge said was “probably in the top 5 percent” of all

the scores that she had seen in 19 years on the bench.3 The district court also found that

the presentence investigation and other available background information showed that

Thao has no previous antisocial or abusive behavior. This information was properly

considered by the district court in making its sentencing decision, and it tended to show

that placing Thao on probation would not constitute a risk to public safety. See Soto, 855

N.W.2d at 313. The district court also emphasized to Thao that it was placing him on

probation for up to 20 years and that any probation violation may result in the execution of

his full 130.5-month sentence.

       Second, in imposing a dispositional departure, the district court made thorough

findings on a number of the Trog factors. At Thao’s initial sentencing, the district court



3
  The Level of Service Inventory Report is an actuarial tool designed to assess risks and
needs relating to criminal behavior and demonstrates an ability to predict reconviction and
parole violation. Glenn D. Walters, Predicting Recidivism with the Psychological
Inventory of Criminal Thinking Styles and Level of Service Inventory-Revised: Screening
Version, 35 Law & Hum. Behav. 211, 213 (2011).

                                              6
noted that he had “led an exemplary life” before the offense and had “been on very good

behavior” while in jail awaiting sentencing. At resentencing, the district court found that

he had family support and a caretaking role for his children. The district court also found

that, while in jail, he had completed an anger-management program before being ordered

to do so, assuming a leadership position in that program. And the district court found that

he had accepted responsibility for his offense and repeatedly expressed remorse for his

actions.   “The presence or absence of remorse can be a very significant factor in

determining whether a defendant is particularly amenable to probation.” State v. Sejnoha,

512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).

       Not all factors cited by the district court were proper to address in deciding whether

to impose a downward dispositional departure.            For example, the district court

inappropriately cited Thao’s ability to obtain and keep employment. See Minn. Sent.

Guidelines 2.D.2.c.(2) & cmt. 2.D.201 (Supp. 2013) (stating that “[e]mployment factors”

should not be used as reasons for departing from the presumptive sentence because they

are “manipulable” factors). Nor was the district court’s consideration of cultural norms

and traditions relating to marriage and fidelity, which the district court found affected

Thao’s judgment at the time of the offense, supported by the record or the law. At

resentencing, the district court noted that the judgment Thao “was exercising at the time

this offense was committed . . . was certainly affected by cultural norms and traditions

relating to marriage and fidelity.” But the only references to cultural norms in the record

are conclusory phrases such as “[i]nformation related to Hmong marriage customs is very

relevant to this case,” and “it is still taboo in Hmong culture for two individuals from the


                                             7
same clan, with the same last name, to marry or date.” There is nothing in the sentencing

transcript or in the district court’s findings that explains why infidelity in the context of

Hmong culture is more egregious than in other cultures. There is nothing that specifically

links “cultural norms” to Thao’s particular amenability to probation. Finally, even if there

was clear evidence of a cultural norm, it constitutes a “[s]ocial factor[],” which should not

be considered as a reason for departure from the presumptive sentence. See Minn. Sent.

Guidelines 2.D.2.d (Supp. 2013) (excluding consideration of social factors as reasons for

departure).4

       But while the district court mentioned improper factors, it also expressly relied upon

appropriate reasons for a departure: a Level of Service Inventory Report score that

supported monitored supervision, Thao’s family and community support, his caretaking

role for his children, and his remorse. Unlike Soto, where there was an “absence in the

record of any ‘substantial and compelling’ circumstances that distinguish Soto from other

defendants,” Soto, 855 N.W.2d at 313, the district court here pointed to specific factors that

distinguish Thao from other defendants, and those factors provided substantial and

compelling circumstances to support its imposition of a downward dispositional departure.

We conclude that, despite its mention of improper factors, the district court’s sentencing




4
  We recognize that the list provided in the sentencing guidelines is a non-exclusive list of
reasons for departure. But we also note that the commission rejects factors “that are general
in nature, and that could apply to large numbers of cases, such as intoxication at the time
of the offense.” Minn. Sent. Guidelines cmt. 2.D.301 (Supp. 2013). Even if “cultural
norms” were not excluded as “[s]ocial factors,” which should not be used as reasons for
departure, the category is inappropriate given its general nature. See id.

                                              8
decision reflected its adequate consideration of permissible grounds for departure.

Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

       We do not discount the serious injury that Thao caused to V.X., which the district

court mentioned at sentencing. As V.X. wrote to the district court, “I will always have the

feeling someone is going to kidnap me . . . or tries [sic] to kill me again. The scars he left

on my face [will remain] with me for the rest of my life.” But in reviewing a district court’s

sentencing decision, it is not our role to ascertain whether we would have reached the same

result. Rather, we are charged with determining whether the state has shown that the

district court abused its discretion in sentencing. Soto, 855 N.W.2d at 307-08. On this

record, we cannot conclude that the district court abused its wide discretion in granting a

dispositional departure and staying the execution of Thao’s sentence.

       Affirmed.




                                              9
