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This opinion will be unpublished and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
A19-0005

State of Minnesota,
Respondent,

vs.

Steven Wayne Culver,
Appellant.

Filed June 3, 2019
Affirmed
Reilly, Judge

Anoka County District Court
File No. 02-CR-17-620

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Paul P. Sarratori, Mesenbourg & Sarratori, P.A., Coon Rapids, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and John
Smith, 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
REILLY, Judge
Appellant challenges the district court’s denial of his downward dispositional -
departure motion. Because the district court did not abuse its discretion, we affirm.
FACTS
Appellant Steven Wayne Culver married K.O. in 2004 and shortly thereafter
adopted K.O.’s young child from a previous relationship, Z.C. After Culver and K.O.
divorced in 2007, Culver continued to have regular parenting time with Z.C.
In June 2016, Z.C. disclosed ongoing sexual abuse perpetrated on him by Culver.
The Anoka County Sheriff’s Office opened an investigation and interviewed Z.C.
regarding the alleged abuse. Accordin g to Z.C., the sex abuse began almost immediately
following Culver and K.O.’s divorce approximately ten years prior. Culver sexually
abused Z.C. during his parenting time. According to Z.C., t he abuse occurred most
frequently—approximately once a week —when Z.C. was five throu gh seven years old.
The incidents of abuse started by Culver tickling Z.C. on the floor or bed. Culver would
then remove Z.C. ’s pants or clothes and have anal sex with Z.C. Z.C. told officers that
Culver regularly wore Trojan -brand condoms and ejaculated after intercourse. Z.C. also
reported that he recently confided in a friend regarding the sex abuse. 1 During a search of
Culver’s apartment, police found a Trojan condom wrapper and other items of evidentiary
value in Z.C.’s bedroom.

1 Law enforcement spoke with the friend, and the friend confirmed that Z.C. disclosed sex
abuse perpetrated on him by his adoptive father.

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The state charged Culver with one count of first -degree criminal sexual conduct in
violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2014), and subsequently filed a notice
of intent to seek an aggravated sentence. Culver pleaded guilty to first -degree criminal
sexual conduct and admitted to sexually abusing Z.C. approximately five to ten times over
the nine-year period. As a condition of the ple a, the state agreed to dismiss its motion for
an aggravated sentence and agreed to a guidelines sentence of 144-172 months. The parties
agreed Culver could argue for a downward dispositional departure.
During the sentencing hearing the state argued that Culver should be sentenced to
172 months in prison. Z.C., K.O. , and Z.C.’s step-father gave victim-impact statements.
Culver presented arguments for departure including a memorandum and a professional
evaluation. Culver’s father -in-law spoke briefly on behalf of Culver. After hearing the
arguments for and against departure , the court determined that depart ure was not
appropriate and imposed a 172-month sentence.
This appeal follows.
D E C I S I O N
The Minnesota Sentencing Guidelines promote uniformity, proportionality, and
predictability in sentencing. See Minn. Stat. § 244.09, subd. 5(2) (2014). A district court
must impose a presumptive sentence unless “identifiable, substantial, and compelling
circumstances” justify a departure. Minn. Sent. Guidelines 2.D.1 (201 4). When a district
court decides to depart from the presumptive sentence, the court must articulate
“substantial and compelling” circumstances justifying the departure. State v. Hicks , 864
N.W.2d 153, 156 (Minn. 20 15). “Substantial and compelling circumstances are those

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circumstances that make the facts of a particular case different from a typical case.” State
v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).
One of the circumstances that supports a downward dispositional departure is a
determination that a defendant is particularly amenable to probation. State v. Soto , 855
N.W.2d 303, 309 (Minn. 2014). A court may consider a defendant’s age, prior record,
remorse, cooperation, attitude in court, and the support of friends and family in determining
whether he is particularly amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982). However, a district court is not required to depart even when it finds that a
defendant is particularly amenable to probation. State v. Olson, 765 N.W.2d 662, 664-65
(Minn. App. 2009) (“[T]he district court has discretion to impose a downward dispositional
departure if a defendant is particularly amenable to probation, but it is not required to do
so.”); see also State v. Pegel , 795 N.W. 2d 251, 253-54 (Minn. App. 2011) (determining
that a district court need not depart in every case where a mitigating factor is present).
The decision whether to depart from the sentencing guidelines rests within the sound
discretion of the district court and will not be disturbed absent a clear abuse of that
discretion. See Hicks, 864 N.W.2d at 156; Pegel, 795 N.W.2d at 253. Our review of a
district court’s decision whether to impose a sentencing departure is “extremely
deferential.” Dillon v. State, 781 N.W.2d 588, 59 5-96 (Minn. App. 2010), review denied
(Minn. July 20, 2010). We will reverse a district court’s refusal to depart only in a “rare”
case. State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018).
Culver argues that the district court erred when it denied his dispositional departure
motion for multiple reasons . First, C ulver argues that the court should have granted a

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dispositional departure from the presumptive sentence based upon his amenability to
probation, his mental health, the evidence that he may be victimized in prison, and the fact
that he is a productive member of society .2 Second, Culver argues that the court
concentrated on the offense committed —which is appropriate when considering a
durational departure—but failed to look at Culver as an individual, and therefore did not
review the evidence that supported his dispositional departure motion.3
The record shows that the district court reviewed the factors for and against
departure at the sentencing hearing and considered Culver as an individual . The district
court acknowledged that Culver had been respectful, quiet, had not violated any conditions
of release, and followed through with the meetings and examinations required of him.
Nevertheless, the district court explained its decision not to depart—even though it was
under no obligation to do so. See e.g., State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App.
1985) (noting that even when departure factors exist, “an explanation is not required when
the court considers reasons for departure but el ects to impose the presumptive sentence”).
The district court considered Culver’s honesty regarding the allegations. For example,
regarding the number of instances of sex abuse, the court noted:
In a very short time frame, you’ve said a number of
different things. So on July 23rd, there was the plea: Less than
20, maybe more than ten, maybe more than five. On August
8th, you told the PSI writer that it was one time when [Z.C.]

2 We note that t he Minnesota Sentencing G uidelines prohibit the use of employment and
social factors as reasons for departing from the presumptive sentence. Minn. Sent.
Guidelines 2.D.2 (2014).
3 Unlike durational departures , which may be justified by offense -related reasons only ,
dispositional departures are based on a defendant’s characteristics. State v. Rund , 896
N.W.2d 527, 533 (Minn. 2017).

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was 14. Then later, maybe it was more than once, but it started
when he was 12.

Additionally, the district court consider ed the pre -sentence investigation (PSI) , which
found that “the defendant shows a lack of acceptance of responsibility in that he has
minimized the abuse he perpetrated on his son and the damage he has inflicted.”
Ultimately, the district court did not find Culver to be particularly amenable to probation
because Culver did not show any “insight into what impact this has on anyone else” or
have “any acceptance of personal responsibility.”
After the district court thoughtfully considered the reasons for and against departure,
it denied Culver’ s motion and imposed a presumptive sentence in accordance with the
Minnesota Sentencing Guidelines . Because the district court did not abuse its broad
discretion when it determined that a departure was not warranted in this case, we affirm.
Affirmed.