State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0341

State of Minnesota,
Respondent,

vs.

Kevin Lamarr Ousley,
Appellant.

Filed February 11, 2019
Affirmed
Smith, Tracy M., Judge

Sherburne County District Court
File No. 71-CR-16-1245

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. E uteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judg e; and Smith,
Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kevin Lamarr Ousley challenges the district court’s denial of his motion
for a downward dispositional depa rture in sentencing, arguing t hat he is particularly
amenable to probation. We affirm.
FACTS
In December 2012, when Ousley was living with a girlfriend, he , on multiple
occasions, touched his girlfrien d’s minor daughter’s intimate p a r t s . I n 2 0 1 6 , t h e s t a t e
charged Ousley with one count each of first-degree and second-d egree criminal sexual
conduct. Ousley reached a plea agreement with the state under which he pleaded guilty to
second-degree criminal sexual co nduct in exchange for dismissal of the first-degree-
criminal-sexual-conduct charge. At the plea hearing, Ousley ask ed that a sentencing
hearing be set about 90 days out to enable him to complete a ps ychosexual evaluation to
support a departure motion. Sente ncing was scheduled accordingl y, and Ousley filed a
motion for a downward dispositional departure.
At the sentencing hearing, the district court granted Ousley’s request to continue
sentencing for another month b ecause Ousley had not yet obtaine d a psychosexual
evaluation. On the date of the rescheduled sentencing hearing, O u s l e y a g a i n a p p e a r e d
without a psychosexual-evaluation report. Ousley had notified his attorney of his failure to
obtain the report only the day before the hearing. Ousley asser ted, as he had at the initial
scheduling hearing, that he coul d not obtain the report due to financial difficulties. The
district court refused to continue sentencing any further, find ing that the lack of a

3
psychosexual evaluation was not “truly just a financial problem .” The court denied
Ousley’s motion to depart and sentenced him to 90 months’ imprisonment and 10 years of
conditional release.
This appeal follows.
D E C I S I O N
Ousley argues that the district court abused its discretion by denying his motion to
depart from the presumptive sent ence under the sentencing guide lines. Appellate courts
“afford the [district] court great discretion in the imposition of sentences and reverse
sentencing decisions only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303,
307-08 (Minn. 2014) (quotation om itted). A district court abuse s its discretion when its
decision is premised on legal errors or clearly erroneous findings of fact. State v. Solberg,
882 N.W.2d 618, 623 (Minn. 2016).
A sentence or range of sentences prescribed under the Minnesot a Sentencing
Guidelines “is presumed to be appropriate.” Soto, 855 N.W.2d at 308 (quotation omitted).
A district court may depart from the presumptively appropriate guidelines sentence only if
substantial and compelling circumstances warrant doing so. Solberg, 882 N.W.2d at 623.
“Substantial and compelling circumstances are those demonstrati ng that the defendant’s
conduct in the offense of conviction was significantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotati on omitted). Substantial and comp elling circumstances
justifying a downward dispositiona l departure include “a defend ant’s particular
amenability to individualized tre atment in a probationary setti ng.” State v. Trog , 323

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N.W.2d 28, 31 (Minn. 1982). Factors relevant to determining if a defendant is particularly
amenable to treatment in a probationary setting include “the de fendant’s age, his prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family.” Id.
Ousley argues that the district court abused its discretion by denying his departure
request because application of the Trog factors demonstrates his particular amenability to
probation. However, even assuming, without deciding, that the Trog factors show Ousley’s
particular amenability to probati on, reversal of his sentence i s not warranted. “[T]he
presence of factors supporting departure does not require departure.” State v. Abrahamson,
758 N.W.2d 332, 337 (Minn. App. 2008). Courts distinguish betwe en sentencing appeals
from departures and refusals to depart. The supreme court stated in State v. Kindem:
[W]e do not intend entirely to close the door on appeals from
refusals to depart. However, we believe that it would be a rare
case which would warrant reversal of the refusal to
depart. . . . [T]he Guidelines sta te that when substantial and
compelling circumstances are present, the judge “may” depart.
This means that the trial court has broad discretion and that we
generally will not interfere with the exercise of that discretion.

In this case, there were valid reasons for adhering to the
presumptive sentence . . . . Thus, while there may have been
arguments for departing downward, there were also reasons for
not doing so. That being so, the determination whether or not
to depart was clearly a discretionary decision for the trial court
to make.

313 N.W.2d 6, 7-8 (Minn. 1981).
U n d e r Kindem, a district court’s refusal to depart must not be disturbed if “there
were valid reasons for adhering to the presumptive sentence,” even though “there were also

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reasons for not doing so”—specifically, aggravating or mitigating factors. Id.; see State v.
Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010) (“This
court will not generally review a district court’s exercise of its discretion to sentence a
defendant when the sentence imposed is within the presumptive guidelines range.”). Also,
we have held that district courts need not express reasons for nondeparture. State v.
Theisen, 363 N.W.2d 867, 869 (Minn. App. 1985), review denied (Minn. May 20, 1985);
see State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (“[T]he district court is not
required to explain its reasons for imposing a presumptive sent ence.”), review denied
(Minn. Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (“[A]n
explanation is not required when the court considers reasons fo r departure but elects to
impose the presumptive sentence.”).
In this case, the district cour t explained why it refused to depart from the guidelines,
and its reasons are supported by the record. First, the distric t court could not be assured
that Ousley was particularly ame nable to probation because the court did not have a
psychosexual evaluation. Second, Ousley took no initiative to a rrange for a psychosexual
evaluation and this failure, along with his repeated neglect to contact his attorney about his
missing appointments, persuaded the district court that the lac k of a psychosexual
evaluation was not “truly just a financial problem.” Lastly, the district court questioned the
defense attorney’s assertion that Ousley did not pose any threa t to the public, in light of
another charge of criminal sexual conduct pending against him i n a different county. The
district court’s reasons for nondeparture tended to suggest that a guidelines sentence would
be best for Ousley and society. See Abrahamson, 758 N.W.2d at 337 (“A district court

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considering a dispositional departure may focus ‘on the defendant as an individual and on
whether the presumptive sentence would be best for him and soci ety.’” (quoting State v.
Heywood, 338 N.W.2d 243, 244 (Minn. 1983))). The district court did no t abuse its
discretion by denying Ousley’s motion for a downward dispositional departure.
Affirmed.