State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0922

State of Minnesota,
Respondent,

vs.

Kevin Philip Dreyer,
Appellant.

Filed April 2, 2018
Affirmed
Smith, Tracy M., Judge

Washington County District Court
File No. 82-CR-15-2981

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this sentencing appeal, appellant Ke vin Dreyer argues that his sentence for
terroristic threats must be reversed because the district court abused its discretion when it

2
denied his motion for a downward durational departure. Because the evidence Dreyer cites
does not compel such a departure, we affirm.
FACTS
On July 18, 2015, Dr eyer was involved in a domestic dispute that ultimately led to
his arrest. After Dreyer was handcuffed and seated in the back of a police car, he told one
of the arresting officers something to the effect of “I am going to ge t a gun and kill you.”
Dreyer was charged with terro ristic threats, fourth-degre e assault, and fourth-degree
damage to property. Dreyer subsequently pleaded guilty to terroristic threats in exchange
for the dismissal of the other charges. As a part of his plea colloquy, Dreyer admitted he
made the statement with a reckless disregard for causing terror on the part of the officer.
The presumptive sentence fo r Dreyer was a stayed one-year-and-one-day sentence.
See Minn. Sent. Guidelines 4.A (2014). At se ntencing, Dreyer moved for a downward
durational departure, asking for a stayed gross-misdemeanor-level sentence. The district
court denied the motion, stayed imposition of sentence for two years, and placed Dreyer
on two years’ probation.
Dreyer appeals.
D E C I S I O N
Dreyer argues that his sentence must be re versed because the district court “tacitly
acknowledged” that he deserved less than the presumptive duration but nevertheless
refused to durationally depart. We review a decision not to depart from the sentencing
guidelines for an abuse of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
We will affirm the imposition of a presumptive sentence when “the record shows that the

3
sentencing court carefully evaluated all the testimony and informati on presented before
making a determination.” State v. Johnson , 831 N.W.2d 917, 925 (Minn. App. 2013)
(quotation omitted), review denied (Minn. Sept. 17, 2013). By affirming a presumptive
sentence, this court is merely stating that the district court acted within its discretion. State
v. Dokken, 487 N.W.2d 914, 918-19 (Minn. App. 1992), review denied (Minn. Sept. 30,
1992). It is the “rare case which would warrant reversal of the refusal to depart” from a
presumptive sentence. State v. Jackson , 749 N.W.2d 353, 360 (Minn. 2008) (quotation
omitted).
When sentencing a criminal defendant, a district court must impose the presumptive
sentence provided in the sentencing guidelines unless the case involves “substantial and
compelling circumstances” to warrant a downward departure. Id. “[A] single mitigating
factor may provide a substantial and compelling reason to impose a downward durational
sentencing departure if it shows that the defendant’s conduct in committing the offense of
conviction was significantly less serious than that typically involved in the commission of
the offense in question.” State v. Solberg, 882 N.W.2d 618, 627 (Minn. 2016). However,
“[d]urational departures must be based on th e nature of the offense, not the individual
characteristics of the offender.” Id. at 625 (emphasis omitted).
The district court, in deci ding not to depart, noted that “one of the main reasons for
departure” would be Dreyer’s la ck of criminal history. The court noted that Dreyer had
just turned 18, “and if we saw this case in Juvenile Court we ’d probably have a different
outcome.” Nevertheless, the c ourt concluded that “the standa rds for departure are pretty

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stiff. And I’m not finding particularly substantial and compelling circumstances, although
I find [Dreyer’s attorney’s] arguments made a lot of sense and worthwhile.”
Dreyer advances four argumen ts as to why the district court abused its discretion in
refusing his motion for a downward durational departure.
First, Dreyer argues that, because he was “high on Xanax” at the time of the threat,
he was “not in a normal state of mind.” We reject this argument. The Minnesota
Sentencing Guidelines are clear: “The volunt ary use of intoxicants” is not a mitigating
factor. Minn. Sent. Guidelin es 2.D.3.a.3. Additionally, the Minnesota Supreme Court
squarely addressed the impact that an intoxicated individual’s mental state has on the mens
rea requirement of terroristic threats in State v. Rund , 896 N.W.2d 527, 533-34 (Minn.
2017). In that case, the di strict court had granted a mo tion for a durational departure
without indicating on its departure report that it had found any offense-related reasons for
a departure. Id. at 533. The district court stated , however, that Rund’s offense was less
serious because of his mental state and beca use he was intoxicated at the time of the
offense. Id. at 531, 533. On appeal, Rund argued that the district court’s reference to
mental state indicated that the fact that he committed the thre at with a reckless disregard
of causing terror, as opposed to a purposeful in tent of causing terror, made the crime less
serious. Id. at 533. The supreme court rejected this argument, holding that, “[b]ecause
Rund’s conduct fits squarely within the statute’s prohibition against making threats with a
reckless disregard of the risk of causing terror, his conduct was not significantly less serious
than the typical case. Accordingly, Rund’s ‘mental state’ was not a proper reason to impose
a downward durational sentencing departure.” Id. at 534.

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This case presents a factually similar s ituation—Dreyer adm itted to making the
threat with a reckless disreg ard of the risk of causing terror and did so while he was
intoxicated. As the court did in Rund, we similarly conclude that Dreyer’s conduct fits
squarely within the statute’s prohibition agai nst reckless threats and that his impaired
mental state is not a proper reason to impose a downward durational departure.
Second, Dreyer argues that, because he made the threat after he had been placed in
the back of a police car, the threat was less serious because he was incapacitated and unable
to carry it out. We disagree. In Rund, the supreme court analyzed whether threats made
on social media, which were “more exaggerate d or extravagant” than they would be in
other contexts, necessitated a downward departure because th ey were less likely to be
carried out. Id. at 535. The court concluded that just because a threat was made in a context
in which it was less likely to be seriously intended did not “support a categorical rule” that
such threats were “somehow less serious than other threats.” Id. Rather, such an evaluation
must be made on a case-by-case basis. Id. As in Rund, we conclude that Dreyer’s being
handcuffed in the back of a police car and unable to immediately carry out his threat does
not categorically mean that his crime was less serious so as to mandate a downward
durational departure.
Third, Dreyer argues that the district cour t “must have recognized that this was not
a typical case . . . because the court sentenced [Dreyer] to a stay of imposition rather than
just a stayed felony sentence.” However, this argument ignores the text of the Minnesota
Sentencing Guidelines, which states, “T he Commission recommends that stays of
imposition be used for offenders who are convicted of lower severity offenses and who

6
have low criminal history scor es.” Minn. Sent. Guidelines 3.A.1.b. Dreyer met these
criteria, and the district cour t sentenced him accordingly. However, meeting the criteria
for a stay of imposition does not imply—as a matter of law—that one meets the criteria for
a durational departure. Otherwise every stay of imposition would also require a durational
departure. We therefore conclude that the district court’s determination that Dreyer
deserved a stay of imposition does not imply that a durational departure was warranted.
Fourth, Dreyer argues th at the circumstances of Rund present a “typical threats of
violence offense,” whereas his offense was less serious. We disagree. Although Rund
involved five threats made to multiple police officers while the defendant was at large, as
opposed to one threat made to one police officer while Dreyer was handcuffed in the back
of a police car, these differences do not categorically mean that Dreyer’s conduct was any
less serious than a typical th reats-of-violence offense. See Rund , 896 N.W.2d at 530
(describing threats made in that case). Unlike Rund, Dreyer made the threat in person, and,
although Dreyer was incapable of carrying out the threat in the moment, he was perfectly
capable of carrying it out after his eventual release.
Our review of the record co nvinces us that the district court fully and thoughtfully
considered both “arguments for departure” and the “valid reasons for non-departure.” State
v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984) (quotation omitted). The district court
did not abuse its discretion in concluding th at Dreyer’s case lacked substantial or
compelling circumstances warranting a downward durational departure.
Affirmed.