                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1393

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                              Lashun Theodits Witherspoon,
                                       Appellant.

                                   Filed July 21, 2014
                                        Affirmed
                                     Hooten, Judge

                             Sherburne County District Court
                                 File No. 71-CR-12-242

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Dawn Nyhus, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges the district court’s denial of his request for a downward

dispositional departure, arguing that the district court abused its discretion because
substantial and compelling factors supported a departure. We affirm.

                                         FACTS

          In February 2012, investigators with the Sherburne County Sheriff’s Office

executed a search warrant at an Elk River residence where appellant Lashun Witherspoon

was on house arrest for a Hennepin County second-degree riot offense. Witherspoon was

in an upstairs bedroom and, as police entered, threw two baggies out the window and

onto the roof of the garage. The investigators recovered the baggies, which were later

confirmed to contain heroin and cocaine.

          Witherspoon was charged with, among other offenses, first-degree controlled

substance crime for possession of 25 grams or more of cocaine in violation of Minn. Stat.

§ 152.021, subd. 2(a)(1) (2010).      He pleaded guilty to the first-degree controlled

substance crime with the understanding that the district court could sentence him to

prison.     Witherspoon moved for a dispositional departure to impose a probationary

sentence.

          At the time of sentencing in April 2013, Witherspoon was 20 years old and had

used alcohol and drugs since he was 13. During the time between committing the offense

and sentencing, Witherspoon completed an inpatient treatment program and stayed sober

for two months. Witherspoon also entered the Minnesota Adult and Teen Challenge

chemical-dependency program in January 2013. At the sentencing hearing, Witherspoon

stated that he was grateful for having the opportunity to enter Teen Challenge, believed

the program had helped him, and wanted to complete it. He also noted that he had a child

on the way and conveyed his desire to be a role model for the child.


                                            2
       The district court denied Witherspoon’s motion, charactering Witherspoon’s

offense as one “against the peace and dignity of the citizens of the State of Minnesota that

involves the introduction of some of the most horrific chemicals known [to] our society.”

The district court was concerned that this case was in “the realm of large amounts [of

drugs] . . . that are likely to be the subject of financial transactions in the community” and

that Witherspoon’s conduct “is kind of like a Typhoid Mary running [loose] spreading

the illness to more and more individuals.” The district court stated that it “would be

remiss in [its] obligation to the notions of public safety if [it] were to depart.”

       The district court acknowledged that Witherspoon was young but noted that he

had “a rather lengthy amount of experience in the criminal justice system” and that he

“persisted in not detaching [himself] from [an] environment” involving “violence which

frequently [has been] a byproduct of the chemical trade.” The district court also stated

that Witherspoon had rejected support from his family and friends, and commented on

Witherspoon’s efforts in treating his chemical dependency:

                     You were provided with an opportunity to prove
              yourself throughout this rather lengthy proceeding and you
              failed to fully avail yourself of those opportunities. You
              continue to use controlled substances when ordered not to do
              so in violation of not only this Court’s order, but also the
              order in Hennepin County. It is as though you did not treat
              those orders seriously.

                     You, despite having gone through three months of
              treatment shortly thereafter were again not appearing for
              testing, testing positive, and those violations occurring as
              recently as January of this year. The Court notes the old saw
              that the best predictor of future behavior is past behavior and
              your past behavior is not an indicator of success.



                                               3
       The district court sentenced Witherspoon to 75-months’ imprisonment, which is

one month above the low end of the sentencing guidelines’ presumptive range.

Witherspoon appeals.

                                     DECISION

       “Whether to depart from the sentencing guidelines rests within the district court’s

discretion, and the district court will not be reversed absent an abuse of that discretion.”

State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). “Only in a rare case will a

reviewing court reverse the imposition of a presumptive sentence.” Id. “The district

court must order the presumptive sentence provided in the sentencing guidelines unless

substantial and compelling circumstances warrant a departure.” Id. (quotation omitted).

       The appropriateness of a dispositional departure “depends on the defendant as an

individual and on whether the presumptive sentence would be best for him and for

society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). Known as the Trog

factors, “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 in determining

whether a dispositional departure is justified. State v. Trog, 323 N.W.2d 28, 31 (Minn.

1982). “A reviewing court 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.”             Pegel, 795

N.W.2d at 255 (quotation omitted).

       Witherspoon argues that “[t]here were numerous compelling factors to support

[his] request for a probationary sentence,” including that he was remorseful and that he


                                             4
was “young and amenable to treatment for his chemical dependency.”           “But the mere

fact that a mitigating factor is present in a particular case does not obligate the court to

place defendant on probation . . . .” Id. at 253 (quotation omitted). Moreover, the district

court was clearly not persuaded by Witherspoon’s claim of amenability to treatment,

commenting that Witherspoon has squandered opportunities to show his amenability by

failing to appear for drug testing and violating court orders prohibiting drug use.

       The record reflects that the district court carefully evaluated the Trog factors and

determined that public safety concerns, Witherspoon’s persistent involvement in drug

activities, his unwillingness to treat his chemical dependency, and his rejection of support

from family and friends warranted imposition of the presumptive prison sentence. The

district court also considered the factors supporting a dispositional departure. We cannot

say that the district court abused its discretion by rejecting these factors even if we might

have reached a different conclusion. See State v. Case, 350 N.W.2d 473, 476 (Minn.

App. 1984) (stating that even though “[t]his court may have acted otherwise had it been

sitting as a sentencing court,” “we are loath to interfere in the absence of an abuse of the

discretion granted in departing dispositionally from the guidelines”).

       Affirmed.




                                             5
