                          This opinion will be unpublished and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
                                     A14-1584

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Adam Michael Lee,
                                      Appellant

                                 Filed August 24, 2015
                                       Affirmed
                                    Chutich, Judge

                            Sherburne County District Court
                               File No. 71-CR-13-1231

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

Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Chutich,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Adam Lee challenges the imposition of the mandatory minimum

sentence for criminal sexual conduct in the first degree, arguing that the district court
abused its discretion by not granting him a dispositional departure. Because the district

court carefully considered the relevant departure factors before exercising its broad

discretion to impose a presumptive sentence, we affirm.

                                           FACTS

         In 2005, Adam Lee was the track coach at Apollo High School in St. Cloud. He

became acquainted with H.G., the track team’s manager, who was 15 years old at the

time. Lee held a position of authority over H.G.

         One night in May 2005, Lee had sexual intercourse with H.G. The two chatted

online, and then Lee said that he would pick up H.G. from her grandparents’ house late in

the evening. After picking her up, Lee drove the two to a gravel road where they had

intercourse.

         H.G. did not report this incident until 2011 and 2013.1 The state charged Lee with

first- and second-degree criminal sexual conduct. See Minn. Stat. §§ 609.342, subd. 1(b),

.343, subd. 1(b) (2004).      Lee agreed to plead guilty to first-degree criminal sexual

conduct while retaining the right to request a dispositional departure; in exchange, the

state agreed to seek only the mandatory minimum sentence of 144 months. See Minn.

Stat. § 609.342, subd. 2(b) (2004). Sentencing was to occur in April 2014, but the district

court postponed the hearing when it received new information, including a Sheriff’s

Incident Report about possible child pornography on Lee’s computer.

         The district court considered Lee’s downward dispositional motion at the next

sentencing hearing. Lee’s Alcoholics Anonymous sponsor testified about Lee’s progress

1
    It is unclear from the record why the incident was reported twice.

                                               2
staying sober. H.G. spoke about how this encounter has continued to negatively affect

her life. The district court also considered two psychosexual evaluations: one from 2014

attached to the presentence investigation report, and one from 2013 conducted for a

separate case.2 Lee also spoke at the hearing.

       The district court thoroughly weighed and discussed the pertinent factors from

State v. Trog, 323 N.W.2d 28 (Minn. 1982), in explaining its decision that a dispositional

departure was not appropriate. It found that Lee’s age, 25 at the time of the offense, did

not weigh in favor of departure, given his position of authority over H.G. The district

court found that Lee’s prior criminal record did not directly affect that Trog factor:

although he had no criminal record at the time of the offense, the district court was

concerned about his subsequent offenses and convictions.

       The district court noted that Lee had consistently expressed remorse before the

court. But it also stated that in his psychosexual examination, Lee said that the offense

occurred when H.G. was 16 years old.3 And it further stated that Lee did not report the

sexual conduct to law enforcement in his earlier case. More importantly to the district

court, in his first psychosexual examination, Lee did not disclose this incident; this failure

to disclose did not demonstrate remorse.


2
  In 2013, Lee pleaded guilty to third-degree criminal sexual conduct and soliciting a
child to engage in sexual conduct. The charges stemmed from Lee having sex with a 17-
year-old student, exchanging sexual texts with a ninth-grade student, and messaging a 13-
year-old student.
3
  Lee pleaded guilty to first-degree criminal sexual conduct/position of authority. This
crime requires that the victim be “at least 13 years of age but less than 16 years of age.”
Minn. Stat. § 609.342, subd. 1(b). Therefore, had H.G. been 16 years old at the time, Lee
could not be found guilty.

                                              3
       As to Lee’s cooperation, the district court noted that he cooperated by pleading

guilty. But the district court also found that he failed to cooperate by not disclosing the

sexual conduct earlier and by not disclosing the extent of his relationship with

pornography. The district court found that Lee’s attitude in court was appropriate. But

the district court was troubled by discrepancies in Lee’s statements. It noted that Lee

testified at the guilty plea hearing that the sexual conduct occurred in May and then stated

in his psychosexual evaluation that the incident occurred later that summer, when H.G.

would have been 16.

       Finally, the district court found that Lee’s support from his family and friends

somewhat favored departure. But the district court further stated that a text Lee had sent

to his wife was “tantamount to a threat of retaliation.”

       Considering all the circumstances, the district court found it had no grounds under

the Trog factors to determine that Lee was so amenable to treatment or probation to

justify a downward departure. It sentenced Lee to 144 months in prison, the mandatory

minimum sentence. See Minn. Stat. § 609.342, subd. 2(b). Lee appealed.

                                      DECISION

       We afford a district court “‘great discretion in the imposition of sentences’ and

reverse sentencing decisions only for an abuse of that discretion.” State v. Soto, 855

N.W.2d 303, 307-08 (Minn. 2014) (quoting State v. Spain, 590 N.W.2d 85, 88 (Minn.

1999)).   Only in a rare case will we reverse a district court’s imposition of the

presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).




                                              4
      A district court must pronounce a presumptive sentence unless substantial and

compelling circumstances exist; accordingly, it may depart only if aggravating or

mitigating circumstances are present. Soto, 855 N.W.2d at 308. “Although the [district]

court is required to give reasons for departure, an explanation is not required when the

court considers reasons for departure but elects to impose the presumptive sentence.”

State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). Furthermore, we “may not

interfere with the sentencing court’s exercise of discretion, as long as the record shows

the sentencing court carefully evaluated all the testimony and information presented

before making a determination.” Id. at 80-81.

      Criminal sexual conduct in the first degree carries a presumptive sentence of 144

months in prison, and sentencing an offender to any other sentence is considered a

departure from the Minnesota Sentencing Guidelines. Minn. Stat. § 609.342, subd. 2(b)

(2004); Minn. Sent. Guidelines II.C (2004). The district court imposed that presumptive

sentence here.

      Lee argues that the district court abused its discretion by failing to grant him a

downward dispositional departure. He claims that his particular amenability to probation

and success in sex-offender treatment demonstrate that the district court abused its

discretion. We disagree.

      When a district court has discretion to depart, “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). The record

here demonstrates that the district court deliberately and thoroughly considered


                                           5
circumstances for and against departure before exercising its broad discretion and

electing to impose a presumptive sentence. It discussed each Trog factor individually and

considered whether each factor weighed for or against departure. Given the district

court’s careful consideration of the record, we conclude that it properly exercised its

discretion by electing to impose the presumptive sentence. See State v. Pegel, 795

N.W.2d 251, 254-55 (Minn. App. 2011) (holding that the district court properly exercised

its discretion by not departing where the record showed that it considered all

circumstances).

         Lee also submitted a pro se supplemental brief and a pro se reply brief, both of

which further argued why he should have received a downward departure. We have

carefully reviewed Lee’s claims but, for reasons discussed above, these arguments lack

merit.

         Affirmed.




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