State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1742

State of Minnesota,
Appellant,

vs.

Layne Allen Gerhardson,
Respondent.

Filed May 7, 2018
Affirmed
Cleary, Chief Judge

Kandiyohi County District Court
File No. 34-CR-17-150

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for appellant);

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
The state appeals from a sentence imposed on respondent Layne Allen Gerhardson,
arguing that the district court abused its di scretion in granting respondent’s motion for a
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downward-durational departure. Because the record supports the district court’s decision,
we affirm.
FACTS
On February 9, 2017, respondent walked into the victim’s house, held him by the
throat against the refrigerator, displayed a tire iron, demanded twenty dollars he was owed,
demanded another ten dollars, and left after the victim gave him the twenty dollars. On
February 15, respondent was charged with two counts of first-degree aggravated robbery–
dangerous weapon and second-degree assault–fear.
At trial, the victim testified that during the incident, respondent did not swing the
tire iron at him but instead “just showed it” to him. The victim also testified that he did
not want respondent to be punished. The ju ry found respondent gu ilty of: (1) attempted
first-degree aggravated robbery–dangerous weapon; (2) attempted first-degree aggravated
robbery–bodily harm; (3 ) second-degree assault; (4) attempted simple robbery; (5) fifth-
degree assault–harm; (6) fifth degree assault–fear; and (7) attempted theft.
At sentencing for responde nt’s attempted first-degree aggravated-robbery
conviction, the district court stated that it had “misgivings” about the penalty and would be
open to considering a motion for departure. The district court continued sentencing so
respondent could file a written motion for departure. In ruling on the motion at the second
sentencing hearing, the district court noted that the victim testified that he did not want
respondent to be punished and reasoned that the victim “didn’t feel particularly
threatened.” The district court also distin guished respondent’s conduct with a tire iron
from a recent incident at a convenience store involving strangers with loaded guns.
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The district court imposed a downward-du rational departure from the presumptive
34-month sentence, finding:
First, the victim himself told us in court under oath he did not
feel threatened, he did not want further consequences and I take
that quite seriously. Second , I do see this case as being
different where large amounts were involved, lives were more
seriously threatened. I just don’t see [these cases the]
same . . . .

The district court sentenced respondent to a 21-month term with 92 days of credit for time
served. This appeal follows.
D E C I S I O N
We review a district court’s decision to depart from the presumptive sentencing
guidelines for an abuse of discretion. State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).
A district court abuses its discretion when its reasons fo r departure are “improper or
inadequate and there is insufficient evidence of record to justify the departure.” Williams
v. State, 361 N.W.2d 840, 844 (Minn. 1985). If a district court’s reasons for supporting a
departure are stated on the record, a reviewing court “will examine the record to determine
if the reasons given justify the departure. . . . If the reasons given justify the departure, the
departure will be allowed.” Id.
The state contends that the crime was not committed in a less serious manner than
a typical attempted first-degree aggravated robbery because the crime did not involve a
less serious threatening of life and the amount of money involved is immaterial. We hold
that the record supports the district court’s first basis for departure but agree that the district
court’s second basis for departure is improper.
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“The Minnesota Sentencing Guidelines promote uniformity, proportionality, and
predictability in sentencing.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015); see also
Minn. Sent. Guidelines 1.A. (2016). A dist rict court may grant a downward-durational
departure only when there are “identifiable, substantial, and compelling circumstances to
support a departure.” Minn. Sent. Guidelines 2.D.1. (2016); State v. Solberg, 882 N.W.2d
618, 623 (Minn. 2016). “A dur ational departure must be based on factors that reflect the
seriousness of the offense, not the characteristics of the offender.” Solberg, 882 N.W.2d at
623. “[T]o be the basis for a downward departure, a factor must tend to excuse or mitigate
the offender’s culpability for the offense.” State v. Esparza, 367 N.W.2d 619, 621 (Minn.
App. 1985). A single mitigating factor may justify a departure if it is compelling. Solberg,
882 N.W.2d at 624-25.
The district court’s first stated reason for departure is supported by the record. The
district court noted that the victim did not f eel particularly threatened when respondent
displayed the tire iron in distinguishing th e offense with a rece nt robbery involving
strangers with loaded guns. The district co urt’s decision based on offense-related factors
such as the weapon used and threat involved was proper.
However, the district court’s second stat ed reason for departure was improper. In
State v. Bauerly, this court held that the value of property is a relevant factor to consider in
imposing a durational departure for a felony theft conviction. 520 N.W.2d 760, 763 (Minn.
App. 1994), review denied (Minn. Oct. 27, 1994 ). The court cited th e range of property
values listed in the statute in concluding that the respondent had stolen property valued in
the lower range. Bauerly, 520 N.W.2d at 763. Here, the robbery statutes do not contain
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any ranges for the value of property taken. See Minn. Stat. §§ 609.24, .245 (2016). The
district court’s sentencing departure based on the amount of money taken was improper.
But because the district court’s substantial and compelling reasons ju stify the departure,
that is, the weapon used and the threat involved, we affirm the district court’s decision.
The state also contends that the district court erred by referring to the victim’s trial
testimony at sentencing. Because sentencing de partures must be based on the record and
testimony is part of the record, the district court did not err in relying on the victim’s trial
testimony. The record here justifies the downward-durational departure. The district court
did not abuse its discretion.
Affirmed.