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This opinion is nonprecedential except as provided by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
A20-0870

State of Minnesota,
Respondent,

vs.

Terrell Elijah Owens,
Appellant.

Filed May 3, 2021
Affirmed
Hooten, Judge

Hooten County District Court
File No. 62-CR-19-5480

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

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this direct appeal from a judgment of conviction for first-degree aggravated
robbery, appellant argues that the district court abused its discretion in denying his motion
for a downward durational sentencing departure. We affirm.

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FACTS
Respondent State of Minnesota charged ap pellant Terrell Elijah Owens with first-
degree aggravated robbery. This charge wa s based on allegations that appellant had
possessed and discharged a firearm while participating in the forceful taking of the victim’s
property through use or threat s of force. Appellant was 17 years old at the time of the
offense, but respondent moved for certification of the matter for adult prosecution, and that
motion was granted. Following a bench trial, appellant wa s found guilty of aiding and
abetting aggravated robbery in the first degree. Appellant moved for a downward
durational departure from the presumptive se ntencing range supplie d by the Minnesota
Sentencing Guidelines. The district court denied appella nt’s motion and imposed the
minimum sentence still within the guidelines range. This appeal follows.
DECISION
An offender’s criminal history score and th e severity level of the offense are “the
two dimensions most important in sentencing decisions,” together supplying a sentencing
range under Minnesota’s sentencing guidelines . Minn. Sent. Guidelines 2 (2018). The
sentences within the range provided by the guidelines “are presumed to be appropriate for
the crimes to which they appl y.” Minn. Sent. Guidelines 2.D.1 (2018). “The court must
pronounce a sentence . . . within the applicable prison range unless there exist identifiable,
substantial, and compelling circumstances to support a departure.” Id.
“A ‘durational departure’ occurs when th e court orders a sentence with a duration
other than the presumptive fixed duration or range.” Minn. Sent. Guidelines 1.B.5.b
(2018). “Substantial and compelling circumst ances for a durational departure are those

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which demonstrate that the defendant’s conduct was significantly more or less serious than
that typically involved in the commi ssion of the crime in question.” State v. Rund , 896
N.W.2d 527, 532 (Minn. 2017) (quotations omitted). “Durational departures must be based
on the nature of the offense, not the i ndividual characteristics of the offender.” State v.
Solberg, 882 N.W.2d 618, 625 (Mi nn. 2016) (emphasis omitted) . Lack of substantial
capacity for judgment and mental impairment are individual characteristics of the offender
that are not legally permissible reasons fo r the sentencing court to make a downward
durational departure. Rund, 896 N.W.2d at 533, 534 n.11.
In this case, the sentencing guidelines pr ovided a presumptive sentencing range of
58 to 81 months based on appellant’s criminal history score of two and a severity level of
eight for the offense. Minn. Sent. Guidelin es 4.A (2018). At his sentencing, appellant
argued for a downward durational departure based on the fact th at he was 17 years old at
the time of the offense and ther efore had a brain that was lik ely not yet fully developed,
causing “poor judgment, lack of impulse c ontrol, poor problem solving and increased
impulsivity.” Appellant, highlighting that he had a criminal history score of two based
solely on his juvenile record, argued that 100% of the defendants who had been sentenced
for first-degree aggravated robbery between 20 14 and 2018 with a criminal history score
of two based solely on a juvenile record ha d received downward dur ational departures.
Appellant also sought a downward durational departure to prevent himself from spending
an extended period of time in incarceration and thereby being exposed to “other individuals
who are much more embedded in the criminal system than he is.”

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The district court denied appellant’s motion for a downward durational departure
and imposed a sentence of 58 months, the minimum sentence still within the range supplied
by the guidelines. See id. In doing so, the district court “recognize[d] that someone who’s
17 doesn’t have a fully develope d brain.” But the district c ourt also highlighted the fact
that the crime “involve[d] a shooting of a gun,” and stated that “the use of a weapon in that
manner is really concerning . . . from a public safety standpoint.” The district court stated
that the facts of the case “shouldn’t be a child’s brain in action, and if it is, it’s concerning.”
Finally, the district court found that there we re not substantial and compelling reasons to
depart from the sentencing gu idelines and denied appellant’s motion for a downward
durational departure.
“We afford the [district] court great di scretion in the imposition of sentences and
reverse sentencing decisions only for an abuse of that discretion.” State v. Soto , 855
N.W.2d 303, 307-08 (Minn. 20 14) (quotation omitted). “A district court abuses its
discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” State v. Hallmark , 927 N.W.2d 281, 291 (Minn. 2019)
(quotation omitted). Only in a “rare” case will we reverse a district court’s refusal to depart
from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant argues that the district court abused its discretion in denying his motion
for a downward durational departure. Specifi cally, appellant contends that there were
“substantial grounds that mitigate[d] [his] actions,” and therefore “warranted a durational
departure.” Appellant asserts, for the first time on appeal, that as a part of the process of
certifying the matter for adult prosecution, appellant “was tested and found to be suffering

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from depression and anxiety and related physical symptoms,” that his “I.Q. was tested and
was found to be in the ‘extremely low range of functioning,’” and that his “I.Q. may have
dropped from prior tests because he reported having two conc ussions since his last test,
which can alter executive functioning.” Appella nt also claims, again for the first time on
appeal, that he “changed when he moved from a middle class neighborhood to a low
income neighborhood” and “lost contact with his grandfather, who was a support person
in his life,” and that his development was also affected because he “experience[d]
homelessness when he grew up.” Appella nt argues that, because of his “unique
circumstances, the district court should have granted a down ward durational departure to
48 months.”
The district court did not abuse its disc retion in denying appellant’s motion for a
downward durational departure. The factor on which appellant originally based his
argument for a downward durational departure—his lack of mental development due to his
age—is an individual characteristic of the o ffender and is thus not a legally permissible
basis on which the district court could have made a downward durational departure. Rund,
896 N.W.2d at 533. Appellant did not raise arguments related to his depression, anxiety,
and related physical symptoms; low I.Q.; conc ussion; relocation; loss of contact with his
grandfather; or experiences with homelessness before the district court. We generally will
not consider arguments raised for the first time on appeal. Thiele v. Stich , 425 N.W.2d
580, 582 (Minn. 1988). Even if we were to reach these arguments, they also rest on
individual characteristics of the offender and are not legally permissible grounds for a
downward durational departure. See Rund, 896 N.W.2d at 533. Finally, it is clear from

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the district court’s order that it carefully considered appellant’s motion for a downward
durational departure, including his argument that his age and l ack of substantial capacity
for judgment justified such a departure, befo re concluding that a downward durational
departure was not warranted. In doing so, the district court did not abuse its discretion.
Affirmed.