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This opinion will be unpublished and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
A17-1671

State of Minnesota,
Respondent,

vs.

Stephen Jeroy Mister,
Appellant.

Filed September 4, 2018
Affirmed
Halbrooks, Judge

Ramsey County District Court
File No. 62-CR-15-3566

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, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Smith, John, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his sentence for first -degree assault, arguing that the district
court abused its discretion by denying his motion for a downward dispositional or
durational departure. We affirm.
FACTS
One night i n 2015, appellant Stephen Mister returned to the apartment he shared
with S.S. When he arrived, he found S.S., K.R., D.M., and D.M.’s girlfriend drinking
alcohol and smoking marijuana. Mister and D.M. started arguing, and th e altercation
turned physical. The two began wrestling and, as a result, broke a television and some
furniture. D.M. then left the apartment and went into the hallway. Mister followed. While
in the hallway, Mister shot D.M. with a handgun. S.S. called 911 after hearing shots, but
Mister struck her arm, causing her to drop the phone. D.M. was transported to a hospital ,
and surgeons removed 13 inches of his lower intestine.
The state charged Mister with first -degree assault under Minn. Stat. § 609.221 ,
subd. 1 (2014), and domestic assault under Minn. Stat. § 609.2242, subd. 4 (2014). The
parties entered into a plea agreement contemplating a bottom -of-the-box guidelines
sentence. In exchange, Mister would plead guilty to first -degree assault, the domestic-
assault charge would be dismissed, and Mister could bring a motion for a dispositional or
durational departure. Mister also waived his right to argue self-defense.
Mister pleaded guilty to first -degree assault. Probation prepared a presentence
investigation (PSI) report that indicated that Mister ha d at least four traffic -related

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convictions, six misdemeanor or gross misdemeanor convictions, and four felony
convictions. The PSI indicated that Mister took “minimal responsibility for his actions”
and “did not seem remorseful.” The PSI recommended that the district court impose the
presumptive sentence.
Before sentencing, Mister moved for a downward dispositional or durational
departure, arguing that he is particularly amenable to probation and that, because D.M. was
also an aggressor, his first -degree-assault offense was less serious than other first -degree
assaults. The state opposed the motion. The district court denied Mister’s motion for a
downward dispositional or durational departure and imposed a 125-month sentence. This
appeal follows.
D E C I S I O N
I.
We note at the outset that Mister received a guidelines sentence. “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). We will 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 81.
Mister argues that he is part icularly amenable to probation, and, therefore, the
district court abused its discretion by denying him a downward dispositional departure. A
district court may depart from the presumptive sentencing guidelines only if substantial

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and compelling circumstances warrant doing so. State v. Cameron, 370 N.W.2d 486, 487
(Minn. App. 1985), review denied (Minn. Aug. 29, 1985). “Substantial and compelling
circumstances are those that make a case atypical.” State v. Walker, 913 N.W.2d 463, 468
(Minn. App. 2018). Even if substantial and compelling circumstances are present, a district
court is not required to depart. Id. “For a downward dispositional departure, a district
court may consider both offender - and offense-related factors.” Id. We will reverse a
district court’s refusal to depart only in a “rare” case. Id.
A district court may impose a dispositional departure if the defendant is particularly
amenable to treatment in a probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982). Factors relevant in determining if a defendant is particularly amenable to treatment
in a probationary setting include “the defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family.” Id. A
defendant’s amenability to individualized treatment in a probationary setting may by itself
support a downward dispositional departure. State v. Hickman, 666 N.W.2d 729, 731 -32
(Minn. App. 2003).
At Mister’s sentencing hearing, the district court stated its reasons supporting its
decision to deny Mister’s motion for a downward dispositional departure. The district
court denied the downward dispositional departure “based on [Mister’s] history of not
being in compliance with probation, based on the ve ry serious nature of this offense, and
based on some of [his] own words and work through some of [his] treatment.”
Mister acknowledges that not all the Trog factors favor a conclusion that he is
particularly amenable to probation. He concedes that his criminal-history score—five—

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and his age—42—weigh against finding that he is particularly amenable to probation. But
he contends that he has “demonstrated his particular amenability to individualized
treatment in a probationary setting” because he has completed two rule 25 chemical-health
assessments, enrolled in anger-management therapy services, and sought therapy services
from CREATE, Inc. Mister also maintains that he is remorseful.
The record indicates that Mister did complete two rule 25 chemical -health
assessments. He enrolled in anger -management therapy services at Cornerstone Therapy
and Recovery Center. He also attended multiple therapy sessions at CREATE , the goals
of which included maintaining positive mental health, addressing impulse control , and
developing coping skills.
But the district court expressed particu lar concern over a CREATE group therapy
session in which Mister made statements indicating that he was not accepting responsibility
for the crime. The district court stated that it was concerned with how Mister portray ed
himself in and out of court because the statements made during the CREATE group therapy
session came after (1) Mister’s public defender prepared his motion for a downward
departure, (2) his depositional advisor prepa red a more “thorough memo,” and (3) he had
allegedly taken responsibility for the crime.
Further, Mister’s prior probation record supports the district court’s conclusion that
he is not particularly amenable to individualized treatment in a probationary setting.
According to the PSI, Mister violated probation terms at least five times in the past.1 Mister

1 Mister violated probation once in 2008, 2011, and 2014, and twice in 2015. He does not
dispute these violations.

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contends that the district court “may have overstated the situation” surrounding these
violations because “they spanned a nine -year period” and “the p re-sentence investigation
provided no information about the nature of the violations.” But amenability to probation
turns on a defendant’s ability “to comply with the conditions of probation and benefit from
the opportunity for rehabilitation that probati on affords.” Hickman, 666 N.W.2d at 732.
Mister’s history of noncompliance with probation orders demonstrates that he is not
particularly amenable to probation.
Mister also contends that his remorse weighs in favor of a downward dispositional
departure. The Minnesota Supreme Court has “consistently treated remorse as a factor that
may support a downward dispositional departure.” State v. Solberg, 882 N.W.2d 618, 625
(Minn. 2016) (“ A primary justification for considering remorse in sentencing is that a
defendant’s remorse bears on his or her ability to be rehabilitated.”).
Mister did apologize on the record, both at his plea hearing and during his
sentencing. During the guilty -plea hearing, Mister admitted that he shot D.M. with a
handgun, that he intended to pull the trigger, and that D.M. lost 13 inches of his intestines
as a result of his injuries. But remorse is “just one of several ‘[f]actors a court can consider’
when determining whether the defendan t is particularly amenable to probation.” State v.
Soto, 855 N.W.2d 303, 311 (Minn. 2014) (quoting State v. Bertsch, 707 N.W.2d 660, 668
(Minn. 2006)). Based on the record in its entirety, the district court’s decision not to focus
on Mister’s apology “suggests that, appropriately, it did not give the apology much, if any,
weight in concluding that [Mister] was [not] amenable to probation.” Cf. id.

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The district court , after considering the testimony and thoroughly reviewing the
record, determined that there are no substantial or compelling circumstances to warrant a
downward dispositional departure and that Mister is not particularly amenable to probation.
We conclude that the district court acted within its discretion by denying Mister’s motion
for a downward dispositional departure.
II.
Mister contends that the district court abused its discretion by denying him a
downward durational departure because his conduct in committing the first-degree assault
was significantly less serious than that typically involved in the commission of first-degree
assault and because the district court relied on the same grounds for denying the durational
departure as it did for denying the dispositional departure.
When deciding whether to depart durationally, a district court must determine if “the
defendant’s conduct was significantly more or less serious than that typically involved in
the commission of the crime in question.” State v. Herrmann, 479 N.W.2d 724, 728 (Minn.
App. 1992) (quotation omitted), review denied (Minn. Mar. 19, 1992).
Mister was convicted of first -degree assault. Minn. Stat. § 609.221, subd. 1.
“Whoever assaults another and inflicts great bodily harm . . .” is guilty of first -degree
assault. Id. “Great bodily harm” is defined as “ bodily injury which creates a high
probability of death, or which causes serious permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member or organ
or other serious bodily harm .” Minn. Stat. § 609.02, subd. 8 (2014). The first -degree-
assault statute therefore prohibits a person from assaulting another and inflicting bodily

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injury that causes a permanent loss of an organ. Minn. Stat. § § 609.02, subd. 8, . 221,
subd. 1.
The supreme court has affirmed a convictio n for first -degree assault when the
defendant pushed another person into a bonfire. State v. Dorn , 887 N.W.2d 826, 833
(Minn. 2016). Here, Mister used a firearm, which the Minnesota legislature has defined as
a “dangerous weapon.” Mi nn. Stat. § 609.02, subd. 6 (2014). If the first-degree assault
statute prohibits the conduct of one person pushing another into a bonfire, using her hands,
and inflicting great bodily harm, Dorn, 887 N.W.2d at 833, then committing first -degree
assault by using a dangerous weapon is more serious “as compared with other acts
constituting the same offense.” Herrmann, 479 N.W.2d at 728.
Mister also argues that the district court should have granted a durational departure
because the following mitigating factors exist: (1) the victim was an aggressor and (2) other
substantial grounds exist that excuse or mitigate his culpability. Under the Minnesota
Sentencing Guidelines, a district court can consider as mitigating factors whether “[t]he
victim was an aggressor in the incident” and whether “[o]ther substantial grounds exist that
tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.”
Minn. Sent. Guidelines 2D.3.a (2014).
Mister claims that both mitigating factors are pr esent here , reasoning that D.M.
introduced the handgun into the fight and that he grabbed it from D.M. during a struggle.
Mister relies on State v. Hennum, in which the supreme court reduced a defendant’s
sentence because substantial grounds existed that tended to reduce h er culpability in
murdering her husband. 441 N.W.2d 793, 801 (Minn. 1989). The husband “physically

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abused [Hennum] on the night of the incident . . . [and] there was substantial evidence that
[he] had subjected [her] to severe physical and mental abuse throughout their relationship.”
Id. On the night of the murder, the husband threw firewood and car parts at Hennum,
pulled her hair, and ripped off her shirt. Id. at 795-96. The supreme court determined that
those facts constituted a “rare” case that merited reversal of the district court’s discretionary
refusal to depart. Id. at 801.
Hennum is distinguishable. Hennum murdered her husband, who had physically
and emotionally abused her and her children for years. Id. Unlike in Hennum, there is no
evidence here that D.M. had a history of physically or emotionally abusing Mister.
Moreover, while Mister contends that D.M. introduced the handgun into the fight, the PSI
and the probable-cause statement underlying the complaint suggest that Mister, not D.M.,
retrieved the handgun from somewhere within the apartment and brought it into the fight
in the hallway.
Mister maintains that the district court “denied the motion for a downward
durational departure for improper r easons and failed to consider valid reasons for
departure.” We disagree. The district court denied Mister’s motion based “on the very
serious nature of [the] offense,” which is a legally valid reason for denying a durational
departure. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017). We conclude that the district
court acted within its discretion by denying Mister’s motion for a downward durational
departure.
Affirmed.