State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0054

State of Minnesota,
Respondent,

vs.

Damon Moore,
Appellant.

Filed January 19, 2021
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-18-24157

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

Michael O. Freeman, Hennepin County Attorn ey, Adam E. Petras , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
On direct appeal from final judgment of conviction for seco nd-degree murder,
appellant Damon Moore challenges the district court’s decision to deny his motion for a
downward durational sentencing departure and to impose a presumptive sentence. Because

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the district court did not abuse its discretion by finding that there was no substantial or
compelling reason to depart from the sentencing guidelines, we affirm.
FACTS
The facts underlying Moore’s conviction are drawn from the record supporting his
guilty plea. Moore was shopping at a grocery store in South Minnea polis when he was
accosted by J.M. Moore and J.M. began physically fighting. When the fight ended, Moore
stayed in the store while J.M. exited to the parking lot. Moore then followed J.M. into the
parking lot and reignited the fight. During this fight, Moore pulled out a pocketknife and
stabbed J.M. in the side of his head. Moore then fled the scene. J.M. later died of his injury.
A grand jury indicted Moore for first- degree premeditated murder and second-
degree intentional murder. Pursuant to a plea deal, Moore pleaded guilty to second-degree
murder and the state dismissed the first-degree charge. Sentencing was to be determined
by the district court.
The presumptive sentence was an executed sentence of 312 to 439 months. See
Minn. Sent. Guidelines 4.A (2018). A presentence investigation report (PSI) recommended
a presumptive sentence of 402 months’ imprisonment. Moore, through his attorney, argued
for a downward durational departure. At sentencing, the district court heard victim-impact
statements from five individuals. It also heard arguments from the state and Moore’s
attorney and reviewed the PSI, the sentencing worksheet, and video footage of the fight
captured by the grocery store’s security cameras. The district court then sentenced Moore
to a presumptive sentence of 366 months in prison.
This appeal follows.

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DECISION
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentenci ng decisions only for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (Min n. 2014) (footnote and quot ation omitted). A district
court “abuses its discretion when its decision is based on an e rroneous view of the law or
is against logic and the facts in the record.” Riley v. State, 792 N.W.2d 831, 833 (Minn.
2011).
The range of sentences prescribed under the sentencing guidelines “is presumed to
be appropriate.” Soto, 855 N.W.2d at 308 (quotation omitted). Departures from the
sentencing guidelines are discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).
A district court may depart from the presumptive sentence only if “identifiable, substantial,
and compelling circumstances” warrant doing so. State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016) (quotation omitted ). For durational departures, substantial and compelling
circumstances “are those which demonstrate that the defendant’s conduct was significantly
more or less serious than that typically involved in the commission of the crime in
question.” Rund, 896 N.W.2d at 532 (quotations omitted). “Durational departures may be
justified by offense-related reasons only.” Id. at 533.
Even if grounds justify departure, the district court need not depart from the
guidelines. See State v. Bertsch , 707 N.W.2d 660, 668 (Minn. 2006). “Although the
[district] court is required to give reasons for departure, an explanation is not required when
the court considers reasons for departure but elects to impose the presumptive sentence.”
State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). When the district court imposes

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a presumptive sentence, appellate courts will not interfere “as long as the record shows the
sentencing court carefully evaluated all the testimony and informati on presented before
making a determination.” Id. at 80-81. Appellate courts will reverse a district court’s
refusal to depart from a presumptiv e sentence only in a “rare” case. State v. Walker, 913
N.W.2d 463, 468 (Minn. App. 2018).
The district court here found that there were no substantial and compelling
circumstances warranting a downward depart ure. Moore argues that the finding was an
abuse of discretion because two mitigating factors fro m the Minnesota Sentencing
Guidelines apply. We address each in turn.
First, Moore argues that J.M. was the aggr essor in the incident, thereby mitigating
his culpability. See Minn. Sent. Guidelines 2.D.3.a.(1) (2018) (identifying as a mitigating
factor that the victim was the aggressor). The district court addressed this argument during
the sentencing hearing, saying:
In this case, I saw the victim exit the store. The confrontation
was over. And you re-engaged while the victim—with the
victim while holding a previ ously opened knife which you
concealed until you h it him in the head with it as he was
backing away.

So the fight was over until it was restarted by you, so
victim as the aggressor does not apply here. The chain was
broken.

The district court’s finding is supported by the record. The reco rd establishes that
the district court reviewed the surveillance footage of the fight before pronouncing Moore’s
sentence. The district court not only consid ered Moore’s argument, but it also explained
why it found it unpersuasive—specifically, because the confrontation was over and Moore

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restarted it. The district court therefore di d not abuse its discretion by rejecting the
argument that J.M. was the aggressor in the fight.
Second, Moore argues that his culpability was mitigated by the impairment of his
capacity for reason due to intoxication at the time of the offense, his long-term alcoholism,
his 2013 traumatic brain injury (TBI), and other hardships and traumas that Moore has
suffered in his life. See Minn. Sent. Guidelines 2.D.3.a .(5) (2018) (identifying as a
mitigating factor “[o]ther subs tantial grounds . . . that te nd to excuse or mitigate the
offender’s culpability, although not amounting to a defe nse”). The district court also
rejected this argument at the sentencing hearing, saying:
Now, there is nothing in the PSI with respect to any sort of TBI
or brain injury. As to drinking, I think the witnesses indicated
that you had, in fact, been drinking . . .

But on this day, as far as I could see, you were
functioning, talking, walking and making decisions, albeit poor
ones, at the time of the offense.

So I don’t see any evidence that there’s any impairment
this [sic] was so extr eme such that it deprived you of control
over your actions. And, in fact, per the presentence
investigation . . . , you were able to recount the events of the
evening to the police shortly afte r the incident and to the PSI
writer . . . one year later.

The district court’s finding is supported by the record. The record reflects that the
district court reviewed the surveillance vide o of the fight, which showed Moore’s ability
to physically function at the tim e of the offense. The district court also reviewed the PSI,
which contained Moore’s recita tion of events, demonstrati ng his ability to recall what
happened, and which contained a list of Moor e’s prior convictions stretching back to

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1989—24 years prior to Moore’s TBI—which tended to undercut the argument that the
TBI was a significant factor in Moore’s criminal behavior here. Thus, the district court did
not abuse its discretion by finding that Moore did not establish an impairment mitigating
his culpability for his crime.
While presenting his challenge to the sentence within the framework of substantial
and compelling circumstances, Moore also su ggests that the presumptive sentence is
unreasonable for other reasons: because his o ffense was more akin to a heat-of-passion
crime; because, he says, the district court judge, at some point before sentencing, had told
counsel that 240 months was “enough” of a punishment; and because, given Moore’s age
at sentencing of 57 years, a 366-month sentence is more lik e a life sentence. But Moore
pleaded guilty to and was conv icted of second-degree inten tional murder, there was no
agreement as to sentencing, and the presumptive sentence is 312 to 439 months. See Minn.
Sent. Guidelines 4.A. Moore relies on Neal v. State , 658 N.W.2d 536 (Minn. 2003), as
authority for reversing an unreasonable sentence. But, in Neal, the defendant was sentenced
to four times the presumptive sentence, making that case unlike this one. See Neal, 658
N.W.2d at 547. Here, in the absence of a su bstantial and compelling reason to depart, the
district court did not abuse its discretion by imposing a presumptive sentence. See Solberg,
882 N.W.2d at 623 (explaining requirement of substantial and compelling circumstances
to depart from presumptive sentence).
Even if the district court could have fo und that the sentenci ng guidelines factors
favor a downward departure, it was still not required to depart from the presumptive

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sentence. See Bertsch, 707 N.W.2d at 668. In sum, the di strict court acted well within its
ambit of discretion when it imposed a presumptive sentence.
Affirmed.