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This opinion is nonprecedential except as provided by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
A21-1552

State of Minnesota,
Respondent,

vs.

Brett Thomas Green,
Appellant.

Filed January 9, 2023
Affirmed
Wheelock, Judge

Koochiching County District Court
File No. 36-CR-20-477

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

Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Smith, Tracy M., Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his conviction following a jury trial for one count of
first-degree burglary , arguing primarily that the state presented insufficient evidence to
2

prove beyond a reasonable doubt that he intended to commit a crime while in a dwelling.
Appellant raises additional arguments in a pro se supplemental brief, alleging the district
court erred by (1) not instructing the jury on a lesser-included offense, (2) not addressing
his mental-illness defense, (3) not disqualifying the district court judge for a conflict of
interest, (4) declaring a mistrial in the previous proceeding, and (5) imposing an excessive
and disproportionate sentence. We affirm.1
FACTS
In August 2020, police responded to a residence after the homeowner, J.M., reported
that someone was inside his home. J.M. told police that he discovered someone inside the
house upon arriving home that morning, and police located appellant Brett Thomas Green
on the couch in J.M.’s living room. J.M. told police that no one besides himself had a key
to his house, and no one had permission to enter, but the spare key was missing from its
hiding place in the garage. Police observed that items were strewn throughout the house .
J.M. told police that the scattered items were his belongings, and some items appeared to
him to be packed up for later removal. J.M. also told police his toothpaste had been used
and some of his food had been eaten.
Respondent State of Minnesota charged Green with first-degree burglary. The
district court twice granted Green’s requests for a mental-competency evaluation pursuant
to Minn. R. Crim. P. 20.01 and a mental-illness-defense evaluation pursuant to Minn. R.

1 Respondent State of Minnesota did not file a brief. Thus, this matter proceeds under
Minn. R. Civ. App. P. 142.03 (providing that the case is determined on the merits when
respondent does not file a brief).
3

Crim. P. 20.02. Both evaluation reports indicated that Green was competent to stand trial
pursuant to rule 20.01 and that he was not so mentally ill or cognitively impaired as to have
a defense to the charge pursuant to rule 20.02. Based on the evaluator’s determinations
that Green was competent to stand trial, the district court set the matter for trial.
In April 2021, the district court held a two-day jury trial. The jury deliberated but
arrived at a deadlock, and the district court declared a mistrial. Green did not object, and
the state filed a notice of its intent to retry the case.
The district court held a second jury trial in May 2021. The police officer who
responded to the call from J.M. testified on behalf of the state. The officer testified that
Green initially told him that Green had permission to be inside the home and had been
given a key, but when the officer interviewed J.M., J.M. told him that he did not know
Green and that the spare key J.M. kept hidden in the garage was missing. The officer
testified that the home appeared to have been “pillaged through” and that J.M. reported the
home had not been that way when he left. The state introduced into evidence photographs
of the home that the officer had taken that day.
J.M. also testified at trial. He stated that he owned the home, he had lived in the
home for 20 years, he lives alone, and he had not given anyone a key or permission to enter
the home. He testified that he left home around noon on a Saturday and returned at
approximately 7:00 a.m. the following Monday to find the deadbolt to the house—which
he did not lock when he left—was locked. He testified that, on entering the house, he saw
that various property in his home was rearranged and a “big mess,” leaving him
“completely perplexed.” He further testified that he then saw someone, whom he identified
4

as Green, sleeping on the couch. J.M. described shouting at Green, who responded that it
was okay for him to be there because the house was abandoned.
J.M. identified several items shown in the photographic exhibits that were not where
he left them, including drawers that had been emptied and items that had been removed
from boxes and shelves and placed on the floor. He testified that a tube of toothpaste that
was normally in the bathroom was now in the kitchen, personal-hygiene products appeared
to have been used, a box of granola bars had been opened and granola bars removed, pot
pies from the freezer were missing, and iced coffee from a carton was gone. J.M. also
testified that he found the empty packages from two pot pies that had been in his home, he
was certain he had not eaten them, and he found splattered pieces of pot pie in the
microwave that were not there before he left his home on Saturday.
Green testified on his own behalf. He stated that late on Sunday evening prior to
the day J.M. came home, he was stranded in J.M.’s neighborhood because his ride fell
through, and he had a broken foot in a cast. He testified to using a spare key from the
garage to enter J.M.’s home. He stated that he knew of the home and the presence of the
spare key because either his dad or a friend was acquainted with J.M. and suggested to
Green that he ask to rent a room there. He later testified that he thought the home might
be abandoned.
Green testified that he planned to await J.M.’ s return to ask about renting a room
from him, and while he was waiting, he began cleaning and organizing the house; he
claimed that the state’s photographic exhibits reflected his efforts. Green denied eating
any of J.M.’s food or using his personal-hygiene products, claiming that he brought his
5

own food and toiletries to the house. Green stated that he would have called for a ride, but
his phone did not have service, and eventually he fell asleep, waking when J.M. arrived
home the following morning.
The jury found Green guilty of first-degree burglary. The district court ordered a
presentence investigation, and Green moved for a downward dispositional sentencing
departure. The district court denied the departure motion and sentenced Green to the
guidelines sentence of 45 months in prison. Green appeals.
DECISION
I. There is sufficient evidence in the record to prove that Green committed theft
while in the dwelling—satisfying an element of first- degree burglary.

Green argues that the state presented insufficient circumstantial evidence to prove
an element of the crime of first-degree burglary because a reasonable alternative hypothesis
exists for why J.M.’s food and products were used or consumed other than Green having
consumed them. We disagree.
In contrast with direct evidence, which is “based on personal knowledge or
observation and . . . if true, proves a fact without inference or presumption,” the supreme
court has defined circumstantial evidence as evidence from which the jury “can infer
whether the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599
(Minn. 2017) (quotations omitted). “ Thus, circumstantial evidence always requires an
inferential step to prove a fact that is not required with direct evidence.” Id. (citing State
v. Silvernail, 831 N.W.2d 594, 604 (Minn. 2013)).
6

“When the direct evidence of guilt on a particular element is not alone sufficient to
sustain the verdict,” appellate courts apply the circumstantial-evidence standard of review.
Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). Under the heightened
circumstantial-evidence standard, appellate courts conduct a two-step analysis. Silvernail,
831 N.W.2d at 598. The first step is to identify the circumstances proved by the state. Id.
In identifying the circumstances proved, we defer to the jury ’s acceptance of the state’s
evidence and “construe conflicting evidence in the light most favorable to the verdict and
assume that the jury believed the [s]tate’s witnesses and disbelieved the defense witnesses.”
Id. at 598-99 (quotation omitted). Thus, in determining the circumstances proved, “we
consider only those circumstances that are consistent with the verdict . . . because the jury
is in the best position to evaluate the credibility of the evidence even in cases based on
circumstantial evidence.” Id. at 599 (citation omitted).
“The second step is to determine whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotations omitted). In making this determination, appellate courts review the
circumstances proved “not as isolated facts, but as a whole,” and independently examine
the reasonableness of all inferences rather than deferring to the jury’s choice between
reasonable inferences. Id. Even so, “inconsistencies in the state’s case or possibilities of
innocence” do not require reversal so long as the evidence as a whole “makes such theories
seem unreasonable.” State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008). Therefore,
rather than relying on “mere conjecture,” a defendant challenging the sufficiency of
7

circumstantial evidence must point to evidence in the record “consistent with a rational
theory other than guilt.” Id.
Here, the jury found Green guilty of first -degree burglary under Minn. Stat.
§ 609.582, subd. 1(a) (2020), which provides that a person commits first-degree burglary
when they (1) enter a dwelling, (2) without consent, (3) while another person who is not
an accomplice is present at any time when the actor is in the dwelling, and (4) either commit
a crime while in the dwelling or enter the dwelling with intent to commit a crime. Green
argues that the state failed to prove the fourth element beyond a reasonable doubt because
the state did not prove his intent to commit a crime while in J.M.’s dwelling. But the state
can prove the fourth element of first- degree burglary by proving either Green’s intent to
commit a crime or that Green actually committed a crime while in J.M.’s dwelling.
To establish the fourth element of burglary, t he state argues that Green actually
committed the crime of theft while in J.M.’s dwelling, because he intentionally and without
claim of right took or used J.M.’s moveable property without consent and with intent to
permanently deprive J.M. of possession of the property. See Minn. Stat. § 609.52,
subd. 2(a)(1) (2020) (defining theft). The state relied on circumstantial evidence to prove
that Green intentionally took or used J.M.’s property. See State v. Irby, 967 N.W.2d 389,
396 (Minn. 2021) (“Intent is a state of mind . . . . To prove intent, it is permissible for the
jury to infer that a person intends the natural and probable consequences of his actions.”
(quotation omitted)). Intent to commit a crime at the time an individual enters a dwelling
is distinct from intent to use another person’s property and permanently deprive the owner
of the property, the latter of which is required to establish the crime of theft. In his brief,
8

Green mistakenly conflates the “intent” required for the two alternate means of establishing
the fourth element of first-degree burglary. If the state proved that Green committed the
crime of theft while in J.M.’s dwelling by establishing that he intentionally took or used
J.M.’s property with intent to permanently deprive J.M. of the property, the state
established the final element of first-degree burglary set forth in the statute, and it does not
matter whether it proved that Green had intent to commit a crime when he entered J.M.’s
dwelling.
Turning back to the circumstantial-evidence analysis, we first identify the
circumstances proved by the state. See Silvernail, 831 N.W.2d at 598. Here, construing
the evidence in the light most favorable to the conviction, the state proved the following
circumstances at trial. J.M. left his house on a Saturday and returned early in the morning
on the following Monday. While J.M. was away, Green used a hidden spare key to gain
entry to J.M.’s house, which he knew belonged to someone else. J.M. did not give Green
permission to enter his home. Green was alone in the house for several hours, and during
that time, many of J.M.’s possessions were moved throughout the house. On finding Green
in the house, J.M. and police observed an open box of granola bars sitting out on a desk
with granola bars missing. Before J.M. left the house, the box had been unopened inside a
kitchen cabinet. J.M. also found empty packages from two pot pies—which he was certain
he had not eaten—and observed splattered pieces of pot pie in the microwave. A carton of
iced coffee appeared to J.M. to have less beverage in it than before. A tube of toothpaste
9

was in the kitchen that was not there before J.M. left the house, and some of J.M.’s
personal-hygiene items appeared to have been used while he was away from the house. 2
We turn next to the second step of the circumstantial-evidence analysis: determining
whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis other than guilt. See id. at 599. Viewing the evidence as a whole, we
conclude the aforementioned circumstances are all consistent with the inference that Green
intentionally took or used some of the food and hygiene products in question without J.M.’s
consent and with the intent to permanently deprive J.M. of the items, meeting the required
elements of theft. We further conclude that the only reasonable inference to be drawn from
the circumstances proved is that Green took the granola bars and pot pies with the intent to
permanently deprive J.M. of possession of these items.
Green, however, argues that these circumstances are also consistent with a rational
hypothesis that the items were used or consumed prior to Green’ s entry into the house.
Green argues that it was “entirely speculative” to infer that he used the hygiene products
because there was no evidence that the products were in containers that made it possible
for the content levels to be evaluated as the product was used. Green further argues that
despite J.M.’s testimony regarding the food items, it could “reasonably be inferred that this
food had been left as the police found it, and J.M. just forgot about leaving it that way.”
This inference is unreasonable given a review of the evidence as a whole, however, because

2 On appeal, Green does not dispute that these circumstances were proved, referring to the
food and items having been used as a “proven fact.”
10

J.M.’s testimony, which the jury credited, reflected J.M.’s overall awareness of the state of
his home prior to leaving and his identification of what was different on his return.
Neither inconsistencies in the state’s case, nor possibilities of innocence, require
reversal “so long as the evidence taken as a whole makes such [alternative] theories seem
unreasonable.” Tscheu, 758 N.W.2d at 858. The theory that J.M. forgot opening and
consuming the granola bars and exploding the pot pies in his microwave over the
less-than-48 hours of his time away from home is unreasonable when the evidence is taken
as a whole. And, as the state argued at trial, “theft of something that belonged to [J.M.]”
is all that the state needed to prove to establish that Green committed or intended to commit
theft while inside an occupied dwelling without consent, and thus to meet the required
elements of his conviction for first-degree burglary.
Because the circumstances proved by the state are consistent with the inference that
Green committed theft of the granola bars and pot pies, and the proven circumstances are
inconsistent with any rational hypothesis other than guilt, we conclude that the state
presented sufficient evidence to support Green’s conviction for first-degree burglary.
11

II. The district court did not err when it did not instruct the jury on a
lesser-included offense or by failing to address Green’s mental-illness defense,
and it did not abuse its discretion by declaring a mistrial in the previous
proceeding, failing to disqualify the district court judge for a conflict of
interest, or imposing a sentence consistent with the guidelines.

We discern five additional arguments Green makes in his pro se supplemental brief3
and conclude that none of these arguments are supported by the record.
First, Green argues that the district court erred by failing to provide a
lesser-included-offense instruction to the jury sua sponte. Green asserts that the facts of
the case support a charge of trespass pursuant to Minn. Stat. § 609.605, subd. 1(b)(4)
(2020), and therefore , the district court should have instructed the jury on the
lesser-included offense of trespass. The record shows that Green did not request a
lesser-included-offense instruction.
“[W]hen a defendant fails to request a lesser-included offense instruction warranted
by the evidence, the defendant impliedly waives his or her right to receive the instruction.”
State v. Dahlin, 695 N.W.2d 588, 597-98 (Minn. 2005). But even when a defendant has
expressly or impliedly waived the instruction, “a trial court may, in its discretion, ignore
the waiver and give any instructions warranted by the evidence.” Id. at 598. “Thus, absent
plain error affecting a defendant’s substantial rights, a trial court does not err when it does

3 Green also argues in his pro se brief that the state’s evidence was insufficient, seeming to
claim that the evidence supported a theory that he entered J.M.’s home with intent other
than to commit theft. As we have already discussed, the jury credited J.M.’s testimony that
food items were missing or consumed and did not credit Green’s testimony as to his actions
that night. Our analysis and conclusion that the state’s evidence is sufficient to support
Green’s conviction applies in equal measure to Green’s pro se argument as it does to the
argument briefed by the appellate public defender.
12

not give a warranted lesser-included offense instruction if the defendant has . . . waived
that instruction.” Id.
We recognize that appellate courts may consider a district court’s failure to give a
jury instruction if it is plain error affecting substantial rights. Minn. R. Crim. P. 31.02;
State v. Montermini, 819 N.W.2d 447, 459 (Minn. App. 2012), rev. denied (Minn. Nov. 20,
2012). “In order to meet the plain error standard, a criminal defendant must show that
(1) there was an error, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights.” State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). Generally, an
error is plain if it “contravenes case law, a rule, or a standard of conduct.” State v. Hersi,
763 N.W.2d 339, 344 (Minn. App. 2009) (quotation omitted). Error affects a defendant’s
substantial rights when it deprives the defendant of a fair trial. Tscheu, 758 N.W.2d at 863.
If all three prongs of the plain-error test are met, we then decide whether to “address the
error to ensure fairness and the integrity of the judicial proceedings.” Id. (quotation
omitted).
Courts must give a lesser-included -offense instruction when “1) the lesser offense
is included in the charged offense; 2) the evidence provides a rational basis for acquitting
the defendant of the offense charged; and 3) the evidence provides a rational basis for
convicting the defendant of the lesser-included offense.” Dahlin, 695 N.W.2d at 598.
We note that Green has not cited any authority requiring a district court to instruct
a jury on lesser-included offenses if the defendant does not request it. See Montermini,
819 N.W.2d at 460 (rejecting a claim of plain error where appellant failed to cite any
authority holding that a district court’s failure to give an unrequested
13

lesser-included-offense instruction is plain error). Further, it is not clear that the evidence
provided a rational basis for acquitting Green of first-degree burglary and convicting him
of trespass as a lesser-included offense, given J.M.’s testimony that food and hygiene items
were missing or appeared to have been consumed. A person is guilty of misdemeanor
trespass when they enter the dwelling of another without claim of right or consent of the
owner or one who has the right to give consent, except in an emergency situation. Minn.
Stat. § 609.605, subd. 1(b)(4). Because the district court did not act in contravention of
case law, a rule, or a standard of conduct or otherwise err by failing to instruct the jury sua
sponte regarding lesser-included offenses, the district court did not commit plain error, and
Green is not entitled to relief under the plain-error standard.
Second, Green argues that the district court failed to consider his defense of mental
illness or cognitive impairment under Minn. R. Crim. P. 20.02 and failed to follow the
procedure laid out in rule 20.02 for the mental-illness defense. A review of the record
shows that this is not the case.
Minn. R. Crim. P. 20.02, subd. 7(a), states that if a defendant notifies the prosecutor
of their intent to rely on the defense of mental illness together with a defense of not guilty,
the court must separate the two defenses, hearing and determining the defense of not guilty
first, and hearing and determining the defense of mental illness second. The defendant
must notify the prosecutor in writing of a mental-illness defense. Minn. R. Crim. P. 9.02,
subd. 1(5)(c); see also State v. Lee, 491 N.W.2d 895, 899 (Minn. 1992) (“[I]f an accused
intends to raise any defense besides not guilty, s/he must notify the prosecution.”).
14

Here, the district court granted Green’s two requests for competency evaluations
pursuant to Minn. R. Crim. P. 20.01 and mental-illness -defense evaluations pursuant to
Minn. R. Crim. P. 20.02. Both evaluators determined that Green was competent to stand
trial at the time of the evaluations and that he knew the nature of his actions at the time of
the alleged burglary. The evaluators further determined that he was not suffering from a
significant mental illness or impairment at the time of the alleged burglary that would
constitute a defense to the charge. Green contested the second evaluator’s report and
informed the court that he would seek an independent rule 20.02 evaluation. The district
court then entered pleas of not guilty and not guilty by reason of mental illness and granted
Green leave to seek his own rule 20.02 evaluation.
The record reflects that Green did not submit an independent rule 20.02 evaluation
after the court granted his request to do so. Green did not provide the prosecution with
written notice of his mental-illness defense as required by Minn. R. Crim. P. 9.02,
subd. 1(5). The district court need separate the defenses and instruct the jury accordingly
only if the defendant notifies the prosecutor under rule 9.02, subdivision 1(5), of their intent
to rely on both defenses. Minn. R. Crim. P. 20.02, subd. 7(a), (b). Further, “the defendant
bears the burden of proving mental illness or cognitive impairment by a preponderance of
the evidence.” Id., subd. 7(c). Although Green contested the results of the second rule
20.02 evaluation, the record shows that he did not present any evidence to raise mental
illness as an af firmative defense at trial. On appeal, “error is never presumed,” and the
burden of showing error rests on the one who relies on it. Loth v. Loth, 35 N.W.2d 542,
546 (Minn. 1949) (quotation omitted); see State v. Fleming, 869 N.W.2d 319, 329 (Minn.
15

App. 2015) (applying this principle from Loth in a criminal case), aff’d on other grounds,
883 N.W.2d 790 (Minn. 2016). Green has not shown that the district court erred by not
proceeding according to Minn. R. Crim. P. 20.02, subd. 7(a).
Third, Green argues that the district court abused its discretion by declaring a
mistrial in the initial April 2021 trial, impermissibly subjecting him to double jeopardy.
The Double Jeopardy Clause of the U.S. Constitution protects a defendant agains t
repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671 (1982).
Our appellate courts apply the “manifest necessity” standard when the district court
declares a mistrial due to a hung jury. State v. Soyke, 585 N.W.2d 418, 420 (Minn. App.
1998). Because the declaration of a mistrial due to a hung jury is the manifest-necessity
finding accorded the most deference on appeal, our review is “very limited.” Id. (citing
Arizona v. Washington, 434 U.S. 497, 509-10 (1978)). “But if a defendant consents to the
district court’s declaring a mistrial, he waives any claim that retrial is barred under the
double jeopardy doctrine.” State v. Hunter, 815 N.W.2d 518, 521 (Minn. App. 2012).
Here, Green consented to the district court’s mistrial declaration. When the district
court learned that the jury was deadlocked in the first trial , it informed the parties that it
was considering a mistrial declaration and solicited argument on the record. Green’s
counsel supported declaration of a mistrial, saying, “I guess I would ask for a hung jury.”
The state filed notice of intent to retry the case, and Green did not move the district court
to dismiss. Thus, Green waived his claim that the second trial subjected him to double
jeopardy in violation of his constitutional rights. See id. Moreover, because this issue was
not raised to the district court, it is not properly before this court on appeal. See Roby v.
16

State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that issues, even constitutional issues,
are waived on appeal if not raised to the district court).
Fourth, Green argues that the district court abused its discretion because the judge
failed to disqualify himself under Minn. Code Jud. Conduct Rule 2.11(A).
Minn. R. Crim. P. 26.03, subd. 14(3), requires that “[a] judge must not preside at a
trial or other proceeding if disqualified under the Code of Judicial Conduct.” Under the
Minnesota Code of Judicial Conduct, “[a] judge shall disqualify himself or herself in a ny
proceeding in which the judge’s impartiality might reasonably be questioned.” Minn. Code
Jud. Conduct Rule 2.11(A). Circumstances under which a judge ’s impartiality might
reasonably be questioned include when a judge has a personal bias concerning a party’s
lawyer or when a person with a third-degree of relationship to the judge is a party to the
proceeding or is acting as a lawyer in the proceeding. Id. (A)(1), (2).
Green states that he had other cases in the district court that were proceeding at the
same time as this case and that the city attorney was also the prosecuting attorney in those
cases. He then alleges that the city attorney is the judge’s half-brother. A review of the
record shows that the city attorney Green alleges is related to the judge was not a party to
this case, was not acting as a lawyer in the proceeding, and was not present for Green’s
trial in this matter.4

4 Our review of the record reveals that the city does not appear as a party on any of the
pleadings in this matter, and, although they share a last name, there is no information
indicating that the city attorney is related to the district court judge.
17

At trial, Green did not seek to disqualify the judge or otherwise request the judge’s
removal. Again, because the issue was not raised to the district court, we do not consider
it on appeal. Roby, 547 N.W.2d at 357. Even if we were to review this argument, Green
does not point to anything in the record implicating the judge’ s impartiality in this case
based on the city attorney’s appearance on other, unrelated cases. He also does not provide
any evidence of a relationship between the judge and the city attorney beyond a bare
allegation that the two are related. On appeal, “error is never presumed,” and “the burden
of showing error rests upon the one who relies upon it.” Loth, 35 N.W.2d at 546 (quotation
omitted); Fleming, 869 N.W.2d at 329 (applying this principle from Loth). Thus, Green’s
argument that the district court abused its discretion by permitting the judge to preside over
his case fails.
Finally, Green argues that his 45-month sentence was “excessive and
disproportionate” and that a bottom-of-the-box 39-month sentence was appropriate under
the circumstances.
The Minnesota Sentencing Guidelines assign a presumptive range of 39 to 54
months for first-degree burglary of an occupied dwelling by an offender with a
criminal-history score of 4.
5 Minn. Sent’g Guidelines 4.A (2020). We review the sentence
imposed by a district court for an abuse of discretion. State v. Delk, 781 N.W.2d 426, 428

5 Green suggests that the district court abused its discretion in sentencing him because his
criminal-history score was incorrectly calculated. Because Green does not point to
anything in the record to support this alleged error, Green’s argument here fails. On appeal,
we do not presume the district court erred in making a sentencing determination. Fleming,
869 N.W.2d at 329 (citing Loth, 35 N.W.2d at 546).
18

(Minn. App. 2010), rev. denied (Minn. July 20, 2010). “This court will not generally
review a district court’s exercise of its discretion to sentence a defendant when the sentence
imposed is within the presumptive guidelines range.” Id. Nor will this court generally
modify a sentence within the presumptive range “absent compelling circumstances.” Id.
(quotation omitted).
Here, Green moved the district court for a downward dispositional departure prior
to sentencing but did not argue for a durational departure. At the sentencing hearing, the
district court heard from both parties. In imposing a sentence of 45 months, the district
court followed the presentence-investigation- report recommendation and the sentencing
guidelines.
Green makes many of the same arguments raised elsewhere in his pro se
supplemental brief to demonstrate “mitigating factors” that he believes support his position
that the sentence the district court imposed is excessive. However, Green’s claims are not
supported by the record and do not rise to the level of the “compelling circumstances”
required for this court to consider modifying a presumptive sentence. Id. (quotation
omitted); see also State v. Epps, 949 N.W.2d 474, 488 (Minn. App. 2020) (stating no abuse
of discretion occurred where guidelines sentence was imposed despite defendant’s request
for the statutory minimum sentence based on claimed amenability to treatment), aff’d on
other grounds, 964 N.W.2d 419 (Minn. 2021). Thus, the district court did not abuse its
discretion by imposing a sentence within the guidelines range.
19

In sum, we conclude that the district court neither erred nor abused its discretion in
this case.
Affirmed.