State of Minnesota v. Damon Marvin Henning, Jr. ( 2023 )

This opinion is nonprecedential except as provided by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
A23-0383
State of Minnesota,
Respondent,
vs.
Damon Marvin Henning, Jr.,
Appellant.
Filed December 18, 2023
Affirmed
Frisch, Judge
Scott County District Court
File No. 70-CR-20-15276
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant challenges the district court’s denial of his motion for a downward
dispositional or durational departure in sentencing following his conviction for second-
degree assault. Because the district court did not abuse its discretion in imposing the
presumptive guidelines sentence, we affirm.
FACTS
Respondent State of Minnesota charged appellant Damon Marvin Henning Jr. with
two counts of second-degree assault with a dangerous weapon in violation of Minn. Stat.
§ 609.222, subd. 1 (2018). Henning pleaded guilty to one count of second-degree assault
with a dangerous weapon with no agreement with the state as to sentencing. At the plea
hearing, Henning admitted that a passenger in a vehicle that he was driving pointed a
firearm at two people in the street in a threatening manner. Henning agreed that by driving
the vehicle, he aided and abetted in the commission of the assault. The district court
ordered Henning to cooperate with a presentence investigation (PSI). Henning did not
cooperate in the preparation of the PSI.
Before sentencing, Henning moved for a downward dispositional or durational
departure from the presumptive sentence set forth in the Minnesota Sentencing Guidelines.
Henning argued that a dispositional departure was appropriate because he had the ability
to be successful on probation and he accepted responsibility for the offense. He argued
that a durational departure was appropriate because the assault was less serious than the
typical offense and his role in the offense was minimal. Henning also submitted data to
the district court regarding dispositional departures for defendants convicted of second-
degree assault with a criminal-history score of zero. The data showed that 76% of
defendants convicted of second-degree assault with a criminal-history score of zero and
sentenced between 2016-2020 received a downward dispositional departure.
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At the sentencing hearing, Henning’s counsel made similar arguments to those set
forth in his memorandum. Counsel acknowledged that Henning did not participate in the
preparation of the PSI but explained that his lack of participation was due to a change in
contact information. Counsel argued that Henning had since been in contact with
probation. Counsel requested a continuance to complete a new PSI, which the district court
denied. Henning made a statement on his own behalf in which he expressed remorse, stated
that he had no other offenses either before or after the incident, and emphasized that he was
motivated to remain in the community to care for his son.
The district court acknowledged that the principal actor in the assault received a
probationary sentence and that Henning did not “actually physically point the gun.” But
the district court also noted that Henning “was with the individual that pointed the gun at
the other people.” The district court explained that it considered the offense to be a very
serious public-safety incident and recognized the extreme fear it caused the victim. The
district court stated that the record did not support a determination that Henning was
particularly amenable to probation, noting that Henning did not cooperate with the
preparation of his PSI and that he was currently in violation of probation for another
incident that resulted in a conviction for interference with a 911 call. The district court
also determined that there were no other mitigating factors that would support a downward
dispositional departure. The district court then sentenced Henning to the presumptive
sentence of 36 months in prison. Minn. Stat. § 609.11, subds. 5, 9 (2018) (setting forth a
legislative mandatory minimum sentence of 36 months for certain crimes committed with
a firearm); Minn. Sent’g Guidelines 4.A. (Supp. 2019) (setting forth the presumptive
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sentence for a severity-level six offense for a person with zero criminal-history points at
21 months).
Henning appeals.
DECISION
A district court has great discretion when making sentencing decisions, and we will
reverse those decisions only when the district court abuses that discretion. State v. Soto,
855 N.W.2d 303, 307-08 (Minn. 2014). A sentence that is imposed in accordance with the
guidelines is presumed to be appropriate. Minn. Sent’g Guidelines 2.D.1 (Supp. 2019).
“We will affirm the imposition of a presumptive guidelines sentence when the record
shows [that] the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn.
App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013).
If presented with “substantial and compelling circumstances,” a district court may
depart from the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981);
see also Minn. Sent’g Guidelines 2.D.1 (stating that a “court may depart from the
presumptive disposition or duration” of a guidelines sentence if “there exist identifiable,
substantial, and compelling circumstances to support a departure”). But a district court
may choose not to depart without abusing its sentencing discretion even if it determines
that factors exist that might support a sentencing departure. See State v. Walker,
913 N.W.2d 463, 468-69 (Minn. App. 2018) (concluding that a district court did not abuse
its discretion in declining to dispositionally depart despite considering “evidence of factors
that could have supported a departure if they had been substantial or compelling”). We
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reverse a sentencing court’s refusal to depart only in “rare” cases. Id. at 468 (quoting
Kindem, 313 N.W.2d at 7).
I. The district court did not abuse its discretion in denying Henning’s motion for
a downward dispositional departure.
Henning first argues that the district court abused its discretion by denying his
motion for a downward dispositional departure because it failed to consider factors
supporting a departure, including mitigating factors, and because Henning is particularly
amenable to probation.
“A dispositional departure typically focuses on characteristics of the defendant that
show whether the defendant is particularly suitable for individualized treatment in a
probationary setting.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation
omitted). The relevant factors in assessing amenability include “the defendant’s age, his
prior record, his remorse, his cooperation, his attitude while in court, and the support of
friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). “[M]erely being
amenable to probation” is insufficient; “requiring a defendant to be particularly amenable
to probation . . . distinguishes the defendant from most others and truly presents the
substantial and compelling circumstances that are necessary to justify a departure.” Soto,
855 N.W.2d at 308-09 (quotation omitted).
The record shows that the district court considered factors related to Henning’s
motion for a dispositional departure. At the sentencing hearing, the district court heard
arguments about Henning’s age, his employment, and that he was the sole caretaker for his
son. The district court also heard from Henning about his desire to continue taking care of
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his son. But the district court determined that Henning was not particularly amenable to
probation in part because he had not participated in the preparation of the PSI and because
he was not compliant with probationary terms related to another conviction, including that
he failed to maintain contact with probation and did not complete domestic-abuse
programming. The district court also noted that Henning had a month-old warrant out for
that probation violation. We acknowledge that the district court did not explicitly discuss
each of the Trog factors or acknowledge evidence in the record regarding each factor, but
a district court is “not required to state its reasons for not departing on the record.”
Johnson, 831 N.W.2d at 926. And we are not persuaded that the sentencing statistics
submitted by Henning changes the district court’s discretion in determining the propriety
of a sentencing departure because, by its very nature, a district court’s decision as to
whether to depart dispositionally is based on the nature of the individual. Solberg,
882 N.W.2d at 623.
We therefore discern no abuse of discretion by the district court in denying
Henning’s motion for a downward disposition departure.
II. The district court did not abuse its discretion in denying Henning’s motion for
a downward durational departure.
Henning alternatively argues that the district court abused its discretion in denying
his motion for a downward durational departure because the assault itself and Henning’s
conduct were less serious than in a typical offense.
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“A durational departure must be based on factors that reflect the seriousness of the
offense, not the characteristics of the offender.” Id. And a defendant’s conduct must be
“significantly less serious than that typically involved in the commission of the offense” to
justify a downward durational departure. Id. at 624.
Henning primarily argues that he was entitled to a durational departure based on
State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984). In Curtiss, an 18-year-old defendant
stole beer from the breezeway of an occupied house while on probation and was charged
with first-degree burglary. 353 N.W.2d at 263. The district court imposed a 33-month
prison sentence, denying the defendant’s request for a downward durational departure to
an 18-month sentence because there were “no justifiable reason[s] to deviate” from the
guidelines. Id. On appeal, we remanded for resentencing, noting that the departure
analysis was “abandoned before . . . comparing reasons for and against departure” and
concluded “[t]his is not that rare case where we interfere with the exercise of discretion,
but a case where the exercise of discretion has not occurred.” Id. at 263-64.
Unlike the situation in Curtiss, the district court here did not abandon an analysis of
whether reasons supporting a durational departure existed, including the nature of the
offense and Henning’s role in the offense. The district court explicitly evaluated the
seriousness of the offense, explaining that it considered the offense be a very serious
public-safety incident and “extremely frightening” for the victim. And the district court
acknowledged that Henning “did not actually physically point the gun,” but noted that
Henning “was with the individual that pointed the gun at other people.” Because the district
court analyzed factors relevant to Henning’s motion for a durational departure before
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imposing the presumptive sentence, we discern no abuse of discretion in the district court’s
sentencing decision.
Affirmed.
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