                          This opinion will be unpublished and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
                                     A14-0717

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                              Gregory Anthony Engebretson,
                                       Appellant.

                                  Filed January 5, 2015
                                        Affirmed
                                      Larkin, Judge

                              Ramsey County District Court
                                File No. 62-CR-13-5470


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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



         Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; Hooten,

Judge.
                        UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his prison sentence for first-degree criminal sexual conduct,

arguing that a dispositional departure was warranted. We affirm the district court’s

imposition of the presumptive sentence under the Minnesota Sentencing Guidelines.

                                         FACTS

       Respondent State of Minnesota charged appellant Gregory Anthony Engebretson

with two counts of first-degree criminal sexual conduct and one count of second-degree

criminal sexual conduct. The state brought the charges after Engebretson’s 14-year-old

daughter, B.M.E., told the police that on the evening of June 30, 2013, she drank alcohol

with Engebretson, passed out on the couch, and “woke up around 3:00 a.m.” to find that

“her shorts and underwear were off and her dad was on top of her with his penis in her

vagina.” B.M.E. further alleged that Engebretson had been “fondling her vagina with his

fingers” and “penetrat[ing] her vagina with his fingers” since she was 11 years old.

       Engebretson negotiated a plea agreement with the state under which Engebretson

pleaded guilty to one count of first-degree criminal sexual conduct, and the state agreed

to dismiss the other two counts.      The parties agreed that the district court would

determine Engebretson’s sentence. During the plea colloquy, Engebretson stated that he

was the one who passed out and that he woke to find that B.M.E. “had [his] shorts off and

was sitting on top of [him]” with his “penis in her vagina.” Engebretson stated that he

continued to engage in sexual intercourse after he woke up and that he ejaculated. The




                                            2
district court accepted Engebretson’s guilty plea and ordered a presentence investigation

and a psychosexual evaluation.

       Engebretson moved for a downward dispositional departure.               In a written

memorandum, Engebretson argued that he “has a low risk of recidivism”; “has been

particularly cooperative with law enforcement”; has “taken responsibility for his actions”;

“has no criminal history”; “is seeking to provide a catharsis and resolution for his

family’s . . . need for healing”; and “is amenable to treatment and has been accepted for

treatment into Project Pathfinder.”         Engebretson attached a psychological and

psychosexual evaluation, which was performed by Marston Consulting Group at the

request of Engebretson’s attorney. The evaluator concluded that Engebretson “presents a

low risk of conviction for a new sex offense within the next five, ten and fifteen years,”

“is an acceptable candidate for community supervision,” and “appears amenable to

outpatient sex offender specific treatment.”

       The court-ordered psychosexual evaluator concluded that Engebretson had “a low

likelihood of reoffending relative to other known sex offenders.” But the evaluator stated

that Engebretson had a high need for services to address “his denial of his offense

behavior and blaming the victim”; “his lack of openness regarding his sexual interests,

attitudes, and behaviors”; “his lack of understanding of his offense dynamics and lack of

re-offense prevention plan”; “his substance abuse, poor emotions management and poor

problem solving skills”; and “his utter lack of empathy for anyone but himself.” The

court-ordered evaluator concluded that “Engebretson has the cognitive ability to complete

treatment without difficulty” but that he “is not motivated for treatment and is reluctant to


                                               3
admit to minor faults even to himself” and “is likely to have difficulty establishing a

therapeutic relationship.”

       The probation officer who authored the presentence investigation report wrote that

Engebretson “indicated it was the victim who in fact sexually assaulted him while he was

passed out from drinking”; “failed to present any sense of remorse in regards to the

events that occurred on the evening of the offense”; “appeared very comfortable in

placing the blame on his 14 year old daughter going so far as to label her as being

‘sexually deviant’”; and “not[ed] that he does not need treatment but he ‘plans on

completing a treatment program under the advisement of [his] attorney.’” The probation

officer recommended that Engebretson serve 144 months in prison, the presumptive

sentence under the Minnesota Sentencing Guidelines.

       At sentencing, the district court heard oral arguments from both parties and a

statement from Engebretson. The district court stated:

                     I have had the benefit of hearing the remarks here
              today and of reviewing the presentence investigation and the
              two psychosexual evaluations, the letter from [B.M.E.’s
              mother], as well as the motion in support of the request for a
              departure. I take seriously the request for departure, but I
              cannot find the circumstances in this case which would
              warrant the exception requested. . . .

                     ....

                      Mr. Engebretson, you’re fortunate to have supportive
              family who are here today to support you. It’s fortunate that
              you are amenable to treatment. I find the Minnesota
              Sentencing Guidelines to guide me in reciting what the
              community expectation is and for what the response would be
              in this matter.



                                            4
      The district court sentenced Engebretson to serve 144 months in prison. This

appeal follows.

                                    DECISION

      Engebretson challenges his sentence, arguing that “[t]he district court abused its

discretion by not granting [him] a dispositional departure where [he] had no criminal

history, he was a marine war veteran, and the doctor who completed his evaluation found

him amenable to treatment.”

      The supreme court recently described the standard applicable to a district court’s

sentencing decision:

                    [Appellate courts] afford the [district] court great
             discretion in the imposition of sentences and reverse
             sentencing decisions only for an abuse of that discretion.
             [But] [t]he Minnesota Sentencing Guidelines . . . limit the
             sentencing court’s discretion by prescribing a sentence or
             range of sentences that is presumed to be appropriate. 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.

State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (citations and quotations omitted).

Only in a “rare” case will a reviewing court reverse a district court’s imposition of the

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

      Engebretson argues that he “put forth substantial and compelling reasons

justifying a downward dispositional departure under Trog.”        In State v. Trog, the


                                           5
Minnesota Supreme Court stated that “[n]umerous factors, including 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

28, 31 (Minn. 1982).

       Engebretson points out that he “served our country as a Marine in the Gulf War,”

“followed his military service by working in two different jobs as a security officer,”

“had no criminal history despite being 41 years old,” “cooperated with law enforcement,

accepted responsibility for his crime, and has shown remorse.” Engebretson also draws

this court’s attention to the Marston Consulting Group’s psychological and psychosexual

evaluation, which concluded that he “presents a low risk of conviction for a new sex

offense,” “is an acceptable candidate for community supervision,” and “appears

amenable to outpatient sex offender specific treatment.”

       Even if the Trog factors were to favor Engebretson, it would not follow that the

district court abused its discretion by refusing to depart from the presumptive sentence.

Trog did not hold that a district court must depart when the factors are present; the “sole”

issue was “whether the district court erred in staying execution of sentence in a case in

which the Sentencing Guidelines recommend[ed] execution of sentence.” Id. at 29. The

supreme court held that the presence of all of the factors justified the departure in that

case. Id. at 31. But the presence of a mitigating factor in a particular case does “not

obligate the court to place defendant on probation.” State v. Wall, 343 N.W.2d 22, 25

(Minn. 1984).


                                             6
       Moreover, the record does not support Engebretson’s contention that substantial

and compelling reasons support a downward dispositional departure. The court-ordered

psychosexual evaluator reports that Engebretson was in denial regarding his behavior,

blamed the victim, lacked openness regarding his sexual interests, attitudes, and

behaviors, lacked understanding of his offense, had a substance abuse problem, showed

poor emotion management, had poor problem-solving skills, and exhibited an utter lack

of empathy for anyone but himself. The evaluator concluded that Engebretson was not

motivated for treatment, was reluctant to admit to minor faults, and was “likely to have

difficulty establishing a therapeutic relationship.”

       The presentence investigator similarly reports that Engebretson showed no

remorse, blamed his 14-year-old daughter for the offense, and told the authoring

probation officer that he did not need treatment. These factors do not suggest that

Engebretson is particularly amenable to probation. See Soto, 855 N.W.2d at 309 (“By

requiring a defendant to be particularly amenable to probation . . . [courts] ensure that the

defendant’s amenability to probation distinguishes the defendant from most others and

truly presents the substantial and compelling circumstances that are necessary to justify a

departure.” (Quotation omitted.)).

       When a district court imposes a presumptive sentence, this “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.” State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011)

(quotation omitted); see State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002) (“If


                                              7
the district court has discretion to depart from a presumptive sentence, it must exercise

that discretion by deliberately considering circumstances for and against departure.”),

review denied (Minn. Apr. 16, 2002). In this case the district court considered both

parties’ oral arguments and Engebretson’s statement. The district court stated that it had

reviewed Engebretson’s motion, the presentence investigation, the two psychosexual

evaluations, and the letter from the victim’s mother. The district court stated that it took

Engebretson’s request for departure seriously, but could not conclude that the

circumstances warranted a dispositional departure. In sum, the record shows that the

district court carefully evaluated the information presented regarding the departure

request, considered the circumstances for and against departure, and concluded that a

dispositional departure was not warranted. This is not a rare case justifying reversal of a

presumptive guidelines sentence.

       Affirmed.




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