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This opinion will be unpublished and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
A19-0427

State of Minnesota,
Respondent,

vs.

Trent Theodore Horning,
Appellant.

Filed January 6, 2020
Affirmed
Segal, Judge

Washington County District Court
File No. 82-CR-18-2452

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Johnson, Judge; and Segal,
Judge.

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U N P U B L I S H E D O P I N I O N
SEGAL, Judge
In this direct appeal from his sentence for identity theft, appellant argues that the
district court abused its discretion by denying his motion for a downwar d dispositional or
durational departure from the sentencing guidelines. We affirm.
FACTS
On April 19, 2018, J.S.T. went to Xperience Fitness in Woodbury to work out. After
he completed his workout, he returned to the locker room and discovered th at the lock he
had placed on his locker had been cut off and replaced with a new lock. A staff member
cut off the lock and J.S.T. discovered that his wallet had been stolen. He contacted his
credit card issuers and learned that two of his credit cards had been used to purchase a total
of $1,857 worth of prepaid debit cards. The following day, B.J.L. went to the same
Xperience Fitness. When he returned to his locker, he similarly discovered that his lock
had been cut off and replaced with a new lock, and that his wallet had been stolen. One of
his credit cards was used to make a purchase at a nearby store.
Following the two thefts, a Woodbury police detective started investigating the
matter. Based on a review of the entry records from Xperience Fitness and the security
footage from the stores where the credit cards were used , appellant Trent Theodore
Horning was identified as a suspect. On April 20, the detective requested that Xperience
Fitness notify law enforcement the next time Horning entered one of their facilities. Later
that day, staff from the Xperience Fitness in Blaine contacted the detective and informed
him that Horning had just entered the health club. Horning was taken into cust ody, and

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S.J.R. subsequently discovered that his lock had been cut off and replaced with a new lock
and that his wallet had been stolen. His wallet was found in Horning’s possession.
The Woodbury d etective interviewed Horning that day. Horning ultimately
admitted to committing the thefts and was released pen ding charges. Law enforcement
continued to investigate the matter and discovered that Horning had also broken into gym
lockers and stolen wallets on April 5 and April 11. After his arrest and release on April
20, Horning committed five additional thefts in the same manner. On June 15, respondent
State of Minnesota charged Horning with identity theft (eight or more victims) in violation
of Minn. Stat. § 609.527, subds. 2, 3(5) (2016).
On September 6, Horning pleaded guilty. In exchange for the guilty plea, the state
agreed to dismiss similar charges pending against him in Olmsted County. Horning
admitted to cutting the locks off of ten gym lockers and stealing the identifying
information, credit cards, and money from the wallets inside the lockers. He also admitted
to resecuring the lockers with new locks to bide himself time to use the credit cards before
the owners discovered the thefts. On nine occasions, he was able to successfully use the
credit cards. Additionally, he admitted to creating and p ossessing checks from his former
employer that contained the correct routing number but a fictitious account number. The
district court accepted Horning’s guilty plea and released him pending sentencing.
On December 17, the district court held a sentencing hearing. Horning moved for
a downward dispositional or durational departure. He argued that there were substantial
and compelling circumstances to support a downward dispositional departure because his
criminal conduct was motivated by his add iction to Adderall and he was amenable to

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treatment in a probationary setting. He also argued that a downward durational departure
was warranted, claiming that his conduct was less serious than the typical identity -theft
offense. The district court denie d the motion and sentenced Horning to the presumptive
sentence of 68 months in prison. Horning appeals.
D E C I S I O N
The district court must impose the presumptive sentence unless “identifiable,
substantial, and compelling circumstances” justify a down ward departure. State v.
Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotation omitted), review denied
(Minn. Sept. 17, 2013). The sentencing court has “broad discretion” and an appellate court
will only reverse a sentencing court’s refusal to depart in a “rare” case. State v. Kindem,
313 N.W.2d 6, 7 (Minn. 1981). We generally will not disturb the imposition of a
presumptive sentence when “the record shows that the sentencing court carefully evaluated
all the testimony and information presented” before imposing a sentenc e. Johnson, 831
N.W.2d at 925 (quotation omitted).
Dispositional Departure
A district court may grant 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). In determining whether an individual is particularly amenable to probation, the
district court may consider the offender’s age, prior record, remorse, cooperation, attitude
in court, and the support of friends and family. Id.

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Horning argues that the distri ct court abused its discretion by denying his motion
for a downward dispositional departure. He argues that he is amenable to probation
because he cooperated with law enforcement, displayed a good attitude in court, showed
remorse and accountability, is only 34 years old, and has support from his friends, family,
and members of the community. He emphasizes that his criminal conduct was grounded
in his addiction to Adderall, and that he demonstrated a motivation to change after being
released pending sente ncing by attending Narcotics Anonymous and obtaining
employment, a car, a place to live, and enrolling in school.
In denying the motion for a downward dispositional departure , the district court
expressed concern that Horning had a history of crimes of dis honesty, and that he had
continued to commit the very same type of crime even after being taken into custody and
released pending charg es on April 20. The district court noted that this history made it
unlikely that Horning would be able to “self -correct” if he were granted probation.
Moreover, when Horning was released prior to sentencing, he was referred to continuing
chemical-dependency programming but was discharged because he failed to attend. The
district court acknowledged that Horning’s behavior was motivated by his addiction to
Adderall, but determined that his addiction alone was not an excuse for the behavior.
Finally, the district court observed that Horning had “been cooperative to a certain extent”
but that he had already benefited from his cooperation by virtue of having the charges
dismissed against him in Olmsted County.
On this record, the district court did not abuse its discretion by denying Horning’s
motion for a downward dispositional departure. The district court appropriately considered

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Horning’s cooperation, remorse, motivation to change, and prior criminal history before
determining that Horning would not be particularly amenable to probation. And while
there are factors that may have weighed in favor of a departure, “the mere fact that a
mitigating factor is present in a particular case does not obligate the court to place [the]
defendant on probation or impose a shorter term than the presumptive term.” State v. Pegel,
795 N.W.2d 251, 253-54 (Minn. App. 2011) (quotation omitted). The record reflects that
the district court carefully considered Horning’s argument and the evidence he presented
in support of his motion and , therefore, the district court did not abuse its discretion by
imposing a guidelines sentence . See Johnson , 831 N.W.2d at 925 (stating that the
sentencing court does not abu se its discretion so long as it considers all the evidence
presented before imposing a sentence).
Durational Departure
Horning next challenges the district court’s denial of his motion for a downward
durational departure. A district court may grant a downward durational departure “if the
defendant’s conduct is significantly less serious than that typically involved in the
commission of the offense.” State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). Unlike
a dispositional departure, the appropriateness of a durational departure depends only on the
nature of the offense. State v. Behl , 573 N.W.2d 711, 713 (Minn. App. 1998), review
denied (Minn. Mar. 19, 1998). We review the district court’s refusal to depart from the
presumptive sentence for an abuse of discretion. Id. at 714.
In determining whether an offense was less serious than a typical offense, the district
court “must analyze the act as compared with other acts constituting the same offense.” Id.

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at 713 (quotation omitted). An individ ual commits the offense of identity theft when he
“transfers, possesses, or uses an identity that is not the person’s own, with the intent to
commit, aid, or abet any unlawful activity.” Minn. Stat. § 609.527, subd. 2. The statute
provides for various penalties based on the number of victims and/or combined loss to the
victims. Id., subd. 3 (2016). For the felony-level offenses, the penalty levels are based on
the number of victims or the amount stolen. Id., subd. 3(3)-(5). Horning was convicted
under Minn. Stat. § 609.527, subd. 3(5), which applies when there are eight or more direct
victims or the total loss to the victims exceeds $35,000.
Horning argues that the district court abused its discretion by denying his motio n
for a downward durational departure because his conduct was significantly less serious
than a typical identity-theft offense. He argues that his case is unlike a typical identity -
theft case because the thefts he committed were noticed quickly by the victims, the amounts
stolen were relatively modest and he did not “do any lasting dam age to their credit.” He
asserts that he therefore “did not steal their identity in the way that the society has become
accustomed to hearing about.” But the district court rejected this argument and concluded
that the case “is probably exactly the kind of case that the legislatu re was picturing.” The
district court observed that the legislature provided for harsher penalties if more victims
were involved regardless of the magnitude of the amounts stolen. In this case, the harshest
penalty applied b ecause there were eleven direct victims. The district court compared
Horning’s conduct with other acts constituting the same offense, and determined that his
conduct was not les s serious than the typical offense because the legislature explicitly
provided for a harsher penalty when there are more victims, regardless of the financial

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benefit the offender received. Consequently, the district court’s denial of Horning’s motion
for a downward durational departure does not constitute an abuse of discretion.
Affirmed.