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This opinion will be unpublished and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
A20-0123

State of Minnesota,
Respondent,

vs.

Dane Michael Vandervoort,
Appellant.

Filed November 30, 2020
Affirmed
Worke, Judge

Renville County District Court
File No. 65-CR-19-69

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

David Torgelson, Renville County Attorney, Olivia, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

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

Considered and decided by Worke, Pres iding Judge; Reilly, Ju dge; and Bratvold,
Judge.
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 motion
for a downward dispositional departure. We affirm.

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FACTS
On March 16, 2019, appellant Dane Mich ael Vandervoort sent his ex-girlfriend,
A.B., text messages threatening things, like “h e was going to take everyone he hates to
HELL with him.” Later that evening, A.B. was at home with a friend when Vandervoort
walked in, pulled out a gun, and stated that if anyone called the police he would “start
shooting.” When A.B. told Vandervoort that he was not going to shoot her, he grabbed her
and said, “You don’t think I will shoot you,” and pointed the gun against her leg.
A.B. freed herself from Vandervoort a nd sent a text message to her mother
instructing her to call the police. A.B.’s mother called the police, and an officer was
dispatched to the residence. When the officer entered the residence, Vandervoort walked
toward the officer and pointed a gun at him. The officer directed Vandervoort multiple
times to give him the gun, bu t Vandervoort replied, “It’s you or me.” The officer used
weapon-retention techniques to disarm Vanderv oort, but Vandervoort retained control of
the gun and a fight ensued. A.B. yelled that Vandervoort had another gun and knives.
Vandervoort reached for the officer’s weapon. The offi cer punched Vandervoort in the
face and tasered him before gain ing control of Vandervoort’s gun. The officer retrieved
another gun from Vandervoort’s pocket and handcuffed him.
During an interview with po lice, Vandervoort stated that he heard that A.B. was
talking badly about him, and he was upset because he could not see his two children from
previous relationships, so he snapped and wanted A.B. to watch him die. Vandervoort
stated that “[h]e wanted to do something so he could go to jail and be forgot about forever.”

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In August 2019, Vandervoort pleaded gu ilty to three counts of second-degree
assault with a dangerous weapon, one for each victim—A.B., A.B.’s friend, and the officer.
Vandervoort moved for a down ward dispositional departur e and submitted letters of
support from family and friends and a report from a psychological evaluation.
A presentence-investigation report (PSI) outlined Vandervoort’s criminal history,
including: a gross-misdemeanor driving wh ile impaired (DWI) from 2006, a gross-
misdemeanor DWI from 2008, a misdemeanor DWI from 2006, an open-bottle conviction
from 2005, a conviction for underage drinki ng and driving from 2005, and a pending
domestic-assault charge from January 2019. The PSI indicated that Vandervoort expressed
remorse and appeared to take responsibility for his actions. But the PSI noted that although
Vandervoort “acknowledged that his usage of alcohol has been problematic for him,” he
declined to participate in an outpatient chemical-dep endency program. The PSI
recommended the presumptive sentences.
Following a sentencing hearing, the district court stated:
I have now carefully considered the report of the psychologist
and while she does present fact ors which could be seen as
mitigating factors including . . . [posttraumatic stress disorder]
. . . I believe that they are outweighed by othe r factors and
specifically the dangerousness that was exhibited in the
commission of this offense. An d I do not believe that a short
stint in jail has alleviated this dangerousness and one of the
things that reinforces that belief is the prior occasion when Mr.
Vandervoort was in jail and fini shed a treatment program and
relapsed as soon as he had finished the program. . . . [T]he very
nature of this offense indicates to me that Mr. Vandervoort is
dangerous. And this was not a one-time offense, even
reviewing the psychological report . . . there’s a history of
anger, a pattern of impulsiveness and aggression. . . . In this
particular case, . . . [he] thre atened to kill pe ople and when a

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law officer arrived, he engaged in a life or death struggle with
a law officer. He or someone else could have easily been killed
and therefore, I think those factors outweigh any argument that
this should be a departure based on amenability to treatment.

The district court sentenced Vandervoort to three 36-month prison sentences, two to be
served consecutively and one concurrently. This appeal followed.
D E C I S I O N
Vandervoort argues that the district c ourt abused its disc retion by denying his
request for a downward dispositional departure. The district court imposed presumptive
sentences. A sentence that is prescribed und er the sentencing guide lines is “presumed”
appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). A district court may depart
from a presumptive sentence only if “iden tifiable, substantial, and compelling
circumstances” warrant a departure. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016)
(quotation omitted). Appellate courts “afford the [district] court great discretion in the
imposition of sentences and reverse . . . onl y for an abuse of that discretion.” Soto, 855
N.W.2d at 307-08 (quotation om itted). “[I]t would be a ra re case which would warrant
reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
In considering a motion fo r a downward dispositional depa rture, a district court’s
focus is on the defendant and whether he is particularly amenable to probation. State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1 982). But a district court may also consider offense-
related factors in deciding whether a dispositional departure is appropriate. State v. Walker,
913 N.W.2d 463, 468 (Minn. App. 2018). A district court is not required to depart from a

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presumptive sentence even if th e record shows that the defe ndant would be amenable to
probation. State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009).
Lacked capacity
Vandervoort first argues that a downward dispositional departure was appropriate
because he lacked capacity due to a mental illness. A distri ct court may consider, as a
mitigating factor, that “[t]he offender, because of physical or mental impairment, lacked
substantial capacity for judgm ent when the offense was committed.” Minn. Sent.
Guidelines 2.D.3.a.(3) (2018). However, “[t]he voluntary us e of intoxicants (drugs or
alcohol) does not fall within the purview of this factor.” Id. And this is the downfall of
Vandervoort’s argument.
The PSI showed that Vand ervoort has several alcohol-related offenses. And
Vandervoort acknowledged that “his usage of alcohol has been problematic for him.”
Vandervoort admitted that he began drinking at 10:30 a.m. on the date of the offense. Thus,
Vandervoort, although aware that alcohol is “problematic for him” and has led to previous
criminal convictions, became intoxicated before he committed the offenses. The district
court determined that, even if Vanderv oort suffered from a mental illness, the
dangerousness of the offense outweighed any mitigating factor. Thus, the district court did
not abuse its discretion by denying Vandervoort’s moti on on this basis because
Vandervoort was voluntarily intoxicated, and the district court de termined that the
dangerousness of the offense supported the presumptive sentences.

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Severe mental illness
Vandervoort next argues that he should have received a downward dispositional
departure because he has a severe mental illne ss. A district court may, “when consistent
with public safety,” place an o ffender “with a serious and pers istent mental illness,” on
probation with the requirement that the offender successfully complete treatment, rather
than impose a prison sentence. Minn. Stat. § 609.1055 (2018). For purposes of this statute,
“mental illness” is defined under Minn. Stat § 245.462, subd. 20(c) (2018). Under section
245.462, subdivision 20(c)(4), an adult meeting the definition of having a “mental illness”
(i) has a diagnosis of schizoph renia, bipolar disorder, major
depression, schizoaffective disorder, or borderline personality
disorder;
(ii) indicates a significant impairment in functioning; and
(iii) has a written opinion from a mental health professional, in
the last three years, stating that the adult is reasonably likely to
have future episodes requiring inpatient or residential
treatment, of a frequency described in clause (1) or (2), unless
ongoing case management or community support services are
provided.

Vandervoort claims that he meets the statutory definition because “[h]e supplied the
court with an expert opinion in the form of a psychological evaluation [that] concluded
[he] was struggling with a serious mental illness before, during, and even after the offense.”
But section 609.1055 uses the word “may,” which grants a district court discretion in
deciding whether to place a ment ally ill offender on probation. See State v. Abdi , 855
N.W.2d 546, 548-49 (Minn. App. 2014). And here, the district court, after “carefully”
considering the psychological report, determined that any mitigating factor was
outweighed by “the dangerousness” of the offense. The district court noted Vandervoort’s

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previous relapse immediately after completing a treatment program. The district court
stated that “Vandervoort is dangerous,” referencing the psychological report that stated that
Vandervoort has “a history of anger, a pattern of impulsiveness and aggression.” Thus, the
district court determined that a downward dispositional departure was not consistent with
public safety and did not a buse its discretion by denying Vandervoort’s motion on this
basis.
Particularly amenable to probation
Finally, Vandervoort argues that application of the Trog factors shows that he is
particularly amenable to probation. See 323 N.W.2d at 31 (stating that in assessing whether
a defendant is particularly amenable to probati on, a district court may consider age, prior
record, remorse, cooperation, attitude in cour t, and support of family and friends). The
supreme court has explained what it means to be “particularly amenable to probation.”
“Particular” means “exceptiona l” or “[d]istinctive among
others of the same group,” and “particularly” means
“especially” or “specifically.” By requiring a defendant to be
particularly amenable to probation, th erefore, we ensure that
the defendant’s amenability to probation distinguishes the
defendant from most others and truly presents the “substantial
and compelling circumstances” th at are necessary to justify a
departure. At the same ti me, insisting on particular
amenability to probation limits the number of departures and
thus fosters uniformity in sentencing, which is a primary
purpose of the Sentencing Guidelines.

Soto, 855 N.W.2d at 309 (citations omitted).
Vandervoort claims that he is particular ly amenable to probation because, although
he is not considered a young man at 33 years old, he lacks a criminal history, he has shown
that he can succeed on probation, he is motivated to change, he is remorseful, he accepted

8
responsibility for his actions, he was cooperative and respectful in court, and he has support
from family and friends.
The record, however, refutes Vandervoort’s claims. First, Vandervoort has several
alcohol-related offenses. And while Vander voort completed a treatment program, he
relapsed the day he completed it. Next, wh ile the state concedes that Vandervoort was
remorseful, respectful, and cooperative in cour t, it asserts that Vandervoort’s expressed
motivation to change could actually be his desire to avoid prison. The record supports this
assertion. A jail evaluation noted concerns that Vander voort was “over-reporting” and
lacked overt symptoms of mental illness. Finally, Vandervoort provided several letters of
support from family and friends. But most, if not all, of th ese individuals have been in
Vandervoort’s life for many years, and none have been able to provide the support up to
this point to prevent Vandervoort from committing his offense.
The district court stated that “Vandervoor t is dangerous,” and this was not a “one-
time offense.” The district court explained that Vandervoort “threatened to kill people and
. . . engaged in a life or death struggle with a law officer. He or someone else could have
easily been killed and therefore . . . those f actors outweigh any argument that this should
be a departure based on amenability to treatment.” Based on the district court’s reasoning
and the consideration of the Trog factors, the district court properly denied Vandervoort’s
request for a downward dispos itional departure because Vandervoort has not shown that
he is “particularly” amenable to probation.
Affirmed.