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This opinion will be unpublished and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
A18-1770

State of Minnesota,
Respondent,

vs.

Joseph Raymond Kost,
Appellant.

Filed August 12, 2019
Affirmed
Worke, Judge

Kanabec County District Court
File No. 33-CR-18-62

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

Barbara McFadden, Kanabec County Attorney, Robb G. Hunter, Assistant County
Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and Florey ,
Judge.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court abused its discretion by denying his motions
for downward dispositional and durational departures from the presumptive sentence
because he demonstrated that he was particularly amenable to probation, and because his
kidnapping offense was less serious than typical. We affirm.
FACTS
On F ebruary 10, 2018, police officers responded to a 911 call from E.R., who
reported that she was being assaulted at a residence. When officers arrived they found
appellant Joseph Raymond Kost trying to get his vehicle unstuck in the driveway of his
friend’s home. Officers found E.R. in the home covered in blood, with a white belt around
her wrist.
E.R. reported that after she entered the home, Kost hit her in the back of the head
and choked her until she lost consciousness. When she regained consciousness, she was
in a bedroom taped and tied up. Kost was outside, where he had backed his car up to the
deck with the trunk open, causing E.R. to believe that Kost intended to put her in the trunk.
E.R. freed herself, locked the door, found her cellphone in a cooler, and called the police.
Kost was charged with first-degree burglary, kidnapping , third-degree assault, and
fifth-degree drug possession. On May 18, 2018, Kost entered an Alford plea, wherein he
agreed to plead guilty to kidnapping and assault in exchange for dismissal of the remaining
charges. The parties agreed to a presumptive 58- month prison sentence, with the
understanding that Kost would move for a downward departure, but that any decision to
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depart would ultimately reside within the district court’s discretion. The district court
denied Kost’s departure motion and sentenced him to 58 months in prison on the
kidnapping conviction, and at Kost’s election, an executed concurrent one- year-and-one-
day sentence on the assault conviction. This appeal followed.
D E C I S I O N
Kost argues that the district court abused its discretion by denying his motion for
downward dispositional and durational departures. “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.” State v. Delk, 781 N.W.2d 426, 428 (Minn.
App. 2010), review denied (Minn. July 20, 2010). Only in a “rare” case will an appellate
court reverse a sentencing court’s refusal to depart. State v. Kindem, 313 N.W.2d 6, 7
(Minn. 1981).
Dispositional departure
Kost argues that he demonstrated his particular amenability to treatment in a
probationary setting under the factors set forth in State v. Trog, and therefore the district
court abused its discretion in declining to depart from the presumptive prison sentence .
323 N.W.2d 28, 31 (Minn. 1982). A defendant’s particular amenability to probation is a
mitigating factor that may support a downward departure from a presumptive sentence.
Minn. Sent. Guidelines 2.D.3.a.7 (Supp. 2017). “The requirement that a defendant be
‘particularly’ amenable to probation ensures that the defendant’s amenability to probation
distinguishes the defendant from most others and truly presents the substantial and
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compelling circumstances necessary to justify a departure.” Minn. Sent. Guidelines cmt.
2.D.303 (Supp. 2017).
In determining whether a defendant is particularly amenable to treatment in a
probationary setting, a district court considers: “the defendant’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” Trog, 32 3 N.W.2d at 31. Kost argues that all of the Trog factors support his
motion for a dispositional departure.
Regarding his age, th e district court noted that Kost “is not a young person.”
Regarding his prior record, the district court found that Kost “does have a criminal history,”
which includes a felony issuance of a dishonored check, misdemeanor and gross -
misdemeanor theft offenses, and a misdemeanor issuance of a worthless check. Because
Kost entered an Alford plea, the district court found the issue of remorse to be an open
question. After noting that Kost disagreed with the state’s rendition of the facts, the district
court concluded, rhetorically, “Is it really remorse because he finds himself where he’s
sitting, or is he sorry for what he did, or is it a combination of those?”
In Kost’s favor, the district court concluded that he was cooperative and had a good
attitude in court. The district court found the factor regarding the support of his f riends
and family to be neutral, stating: “[T]here does appear to be a strained family relationship
and whether . . . Kost is able to abstain in the future and maintain a healthy relationship
and restore some of those family relationships that make him more likely to be successful
in his future are yet to be seen.”
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Finally, the district court noted that Kost has a “substantial and lengthy history of
substance abuse,” but had never sought treatment. The district court concluded:
“[W]hether or not he’s particularly amenable to treatment is still a question in my mind. It
may be that . . . this is the turning point in his life, but I can’t be convinced of that.” The
record reflects that the district court fully evaluated Kost’s particular a menability to
probation under the Trog factors, ultimately concluding that a dispositional departure was
not warranted. On this basis, the district court did not abuse its discretion in declining to
dispositionally depart.
Durational departure
Kost argues that his kidnapping offense was significantly less serious than the
typical kidnapping, and therefore the district court abused its discretion by denying his
motion for a durational departure. “A durational departure must be based on factors that
reflect the seriousness of the offense, not the characteristics of the offender.” State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016). “A downward durational departure is
justified only if the defendant’s conduct was significantly less serious than that ty pically
involved in the commission of the offense.” Id. at 624 (quotation omitted).
Kost argues that the district court failed to explain its reasoning for denying his
motion to durationally depart, but that assertion is not supported by the record. Kost
claimed that the kidnapping offense was significantly less serious because he only removed
E.R. a short distance of approximately 20 feet and confined her for a short period of time
so that he could clean up the blood from her head injuries. The district court noted that,
even accepting Kost’s rendition of the facts as true, it did not lessen the severity of the
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crime, because he did not show any concern for E.R. or her injuries. The district court
stated:
The real issue in this case . . . is not so much of how far
Mr. Kost had moved [E.R.] from the incident where she was
injured, but really what was the purpose of that. What was the
purpose of her belongings . . . being in a cooler? . . . What was
the purpose in binding her instead of calling law enforcement?
And if he truly were attacked, why didn’t he call law
enforcement to report it so that they could respond and take
appropriate measures?
And so in the grand scheme of things . . . it does not
appear to me that this particular kidnapping offense is less
serious than others . . . .
And so the real danger . . . is if she had not woken up,
what was next? . . . I don’t find that Mr. Kost was particularly
caring about [E.R.’s] condition or that he was likely to get her
help after that took place.

The record reflects that the district court fully considered the undisputed facts and
found that they did not support Kost’s assertion that this kidnapping was significantly less
serious than the typical kidnapping. Therefore, the district court did not abuse its discretion
by denying Kost’s motion for a downward durational departure.
Affirmed.