This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A14 - 0747 State of Minnesota, Respondent,

vs. Curtis Wayne Regguinti, Appellant. Filed May 4, 2015 Affirmed Bjorkman , Judge
Hennepin County District Court File No. 27

- CR

- 12

- 3627 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reyes , Presiding Judge; Hudson , Judge; and Bjorkman , Judge

. U N P U B L I S H E D O P I N I O N BJORKMAN , Judge Appella nt challenges his conviction of aiding and abetting first

- degree assault, arguing that (1) the district court committed plain error by failing to define “intent ” for2

the jury, (2) the prosecutor committed multiple forms of misconduct, (3) a different judge was improperly substituted at sentencing, and (4) the district court abused its discretion by denying a downward departure at sentencing. We affirm. FACTS On December 28, 2011, B.M.

- O. hosted a party at his home. Approximately ten people attended, including h is girlfriend, J.A., appellant Curtis Regguinti, Jr. , and Regguinti’s girlfriend, L.J. Everyone was drinking alcohol , and at some point Regguinti fell asleep on a couch. S everal other partygoers entered the room where Regguinti was sleeping , an d J.A. tugged on Regguinti’s underwear to wake him up. When he a woke , Regguinti punched the person closest to him

— L.E. The two fought briefly, but B.M.

- O. broke them up. Regguinti was angry and left the house. Approximately two hours later, Regguinti returned with his cousin; his father, Curtis Regguinti, Sr.; and his father’s girlfriend. As Regguinti approached the house, J.A. told him he could not come back inside. Regguinti hit her, and she swung back. Regguinti placed J.A. in a choke hold, and s he screamed. B.M.

- O. ran outside and punched Regguinti in the face. Then he and Regguinti “started going at it.” Some other people came running up behind B.M.

- O. , struck him, and he fell to the ground, unconscious. When he came to, Regguinti had him pi nned down and was trying to punch him in the face. B.M.

- O. looked up and saw either Regguinti’s father or his cousin nearby, raising his foot “like he was sort of winding up to kick

. ” B.M.

- O. tried to shield himself with his hands, but someone kicked him and he again lost consciousness . As B.M.

- O. lay on the ground immobile, J.A. saw Regguinti punching him and Regguint i ’s3

father and cousin kicking him, “all beating [B.M.

- O.] up at the same time.” After about a minute, a vehicle pulled up, and Regguinti, his father, his cousin, and his father’s girlfriend ran to the vehicl e and fled the scene

. B.M.

- O. was treated for multiple injuries, including skull fractures, bladder injuries, and swelling around both eyes. He was unable to walk for two or three weeks , and he suffered migraines and headaches for several months. He has permanent hearing loss in his right ear and vision loss in his right eye. 1 Regguinti was charged with aiding and abetting first

- and third

- degree assault , and he ass erted a self

- defense claim

. Regguinti Sr. was also charged with aiding and abetting first

- degree assault based on the incident with B.M.

- O. The two men were tried separately. At Regguinti’s trial, immediately before opening statements , t he state dismisse d the third

- degree

- assault charge. Regguinti subsequently clarified that his self

- defense claim pertained only to the dismissed charge , and he did not seek a self

- defense jury instruction

. Nonetheless, Regguinti testified that he was the victim, not the assailant, at the house party. He testified that when he was awakened on the couch, he believed he was being robbed and briefly lashed out at L.E., but then was assaulted by L.E. and B.M.

- O., suffering a broken j aw and injuries to his nose and eye. Regguinti testified he returned to the party later because he was concerned about h is girlfriend , and he and J.A. began arguing outside. He testified that B.M.

- O. started walking toward him, and his

1 Regguinti stipulated that these injuries constitute great bodily harm.4

father hit B.M.

- O. He state d that B.M.

- O. fell down and hit his head, but he never saw anyone kick B.M.

- O. and never personally struck him. The jury found Regguinti guilty. Following Regguinti’s trial, the trial judge was transferred to a different division of the court and another judge was assigned to conduct Regguinti Sr.’s trial and to sentence Regguinti

. Regguinti requested a downward durational or dispositional sentencing departure. The district court denied both requests and imposed the presumptive 86

- month sentence. Reggu inti appeals. D E C I S I O N I. T he district court did not commit plain error by failing to define “intent . ” We review unobjected

- to jury instructions for plain error . See State v. Watkins , 840 N.W.2d 21, 27 (Minn. 2013)

. Under that standard, an appellant must demonstrate (1) error; (2) that is plain; and (3) that affected his substantial rights. Id. at 28 (citing State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998)). Plain error requires reversal only if “the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.” State v. Barrientos

– Quintana , 787 N.W.2d 603, 611 (Minn. 2010) (quotation omitted). The state was required to prove th at Regguinti committed first

- degree assault or “intentionally aided” another in committing t hat offense. Minn. Stat. § 609.05, subd. 1 (2010). Our supreme court has explained that a person intentionally aids another’s criminal conduct when he (1) knows th at his alleged accomplices a re going to commit a crime and (2) intends his presence or actions to further the commission of that crime. State v. Milton , 821 N.W.2d 789, 805 (Minn. 2012). Failure to define the phrase5

“intentionally aids ” for a jury is plain error. See State v. Kelley , 855 N.W.2d 269, 275 , 277 (Minn. 2014). The district court instructed the jury that Regguinti intentionally aided a crime committed by another if he “ knew his alleged accomplices were going to or were committing a crime ,” he “ intended that his presence and actions aid the commission of a crime , ” and his “ presence and actions did aid the . . . commission of the crime. ” Regguinti argues that the district court erred by not also defining the term “intent.” We disagree

. The di strict court gave almost exactly the instruction mandated in Milton , and nothing in the language of that decision suggests that any further instruction on “intent” is necessary. T o the contrary, the word intent “has a common meaning.” State v. Harlin , 771 N.W.2d 46, 52 (Minn. App. 2009), review denied (Minn. Nov. 17, 2009). For that
reason, we ha ve repeatedly held that a district court does not plain ly err by failing to define the word intent for the jury

. See id. ; State v. Robinson , 699 N.W.2d 790, 799

- 80 (Minn. App. 2005), aff’d in part, rev’d in part and remanded on other grounds , 718 N.W.2d 400 (Minn. 2006). T he jury would have gained little insight from an additional instruction explaining that “ ‘ with intent that ’ means that the actor either has a purpose to do the thing or cause the result specified, or believes that the act, if successful, will cause that result. ” See 10 Minnesota Practice , CRIMJIG 7.10 (20 06 ). Accordingly, the district court did not commit error, plain or otherwise, by not providing such an instruction. Moreover , the failure to define “ intent ” did not impair Regguinti’s substantial rights. The jury was presented with two markedly different versions of how B.M.

- O.6

sustained his injuries. But the jury o bviously believed the state’s evidence that Regguinti pinned B.M.

- O. down and punched him repeatedly while Regguinti Sr. and Regguinti’s cousin kicked him. Because intent i s the only plausible inference from that joint conduct, an instruction defining intent would not have altered the jury’s verdict. On this record, we conclude that Regguinti’s plain

- error challenge to the jury instructions fails. II. T he prosecutor did not commit prejudicial misconduct . Regguinti argues that the prosecutor engaged in multiple forms of misconduct. He did not object to all of the alleged instances of misconduct, and the parties dispute the appropriate standard of review. We agree that our review “depends on whether an objection was raised at the time of the alleged error.” State v. Yang , 774 N.W.2d 539, 559 (Minn. 2009). We review objected

- to misconduct under a two

- tiered har mless

- error
test and apply a modified plain

- error test to claims of unobjected

- to misconduct. Id. But

o ur “primary concern” when addressing any allegation of prosecutorial misconduct is

“ whether such misconduct deprived the defendant of his right to a fa ir trial.” State v. Jones , 753 N.W.2d 677, 686 (Minn. 2008). In this respect, the two standards of review do not materially differ. State v. Vance , 734 N.W.2d 650, 660 n.8 (Minn. 2007) (noting similarity between harmless

- error standard and third prong of plain

- error review). We need not address the merits of a prosecutorial misconduct claim if the alleged misconduct was harmless beyond a reasonable doubt. See State v. McDonough , 631 N.W.2d 373, 389 (Minn. 2001). Accordingly, we focus our analysis on the issue of prejudice

. Regguinti asserts four instances of prosecutorial misconduct. First, he argues that the prosecutor improperly elicited a police officer’s opinion as to his guilt by asking7

“ what, if any, conclusion ” the officer ’s investigation had led him to draw about Regguinti’s “ role in the assault , ” to which the officer replied, “ [t] hat he was involved in the assault. ” Second, Regguinti contends that the prosecutor improperly shifted the burden of proof during closing argument by stating that “ there’s no defense of self

defense here ,” but “ I want to talk about it briefly because we did discuss [ it ] in voir dire. ” Third, Regguinti argues that the prosecutor improperly highlighted that he d id not call L.J. as a witness by telling the jury that it “heard from everyone out there that night who

sa w what happened with the exception of [ L .J.]

. ” Fourth, Regguinti asserts that the prosecutor improperly appealed to the passions and prejudices of the jury by asking the jury to consider whether disagreements with how police investigated this case “should mean that [B.M.

- O.] and that the State of Minnesota should not get justice in this case.” While we are not convinced that the prosecutor acted improperly in any of these instances, we conclude that any error was harmless beyond a reasonable doubt. T he ch allenged conduct was not pervasive. See State v. Hohenwald , 815 N.W.2d 823, 835 (Minn

. 2012) (considering pervasiveness of misconduct)

. The officer ’s testimony that he believed Regguinti was “involved” in the assault c ame during the middle of a proper direct examination and played no role in the prosecutor’s closing argument. And the challenged aspects of the closing argument form only a small portion of a lengthy argument (spanning 40 pages of transcript) during which the prosecutor appropriately focu sed on identifying and explaining the evidence. By contrast, the evidence against Regguinti was strong, based on the consistent testimony of multiple witnesses that thoroughly established the elements of aiding and abetting first

- degree assault. See id.8

(considering the strength of the evidence against the defendant ). Moreover, both the district court and defense counsel properly reminded the jury that it is the sole judge of credibility and that the state must prove guilt beyond a reasonable doubt. Se e id. (considering the opportunity to mitigate the effect of improper suggestions). On this record , we conclude that Regguinti is not entitled to relief based on alleged prosecutorial misconduct. III. Regguinti was not prejudiced by being sentenced by a s ubstitute judge. A substitute judge may preside at sentencing if the trial judge “is unable to preside due to death, illness or other disability.” Minn. R. Crim. P. 26.03, subd. 14(2). Regguinti argues that it was improper for a substitute judge to sentence him because the trial judge was not unavailable as set out in rule 26

. But reversal is warranted only if the alleged

error i mpaired Regguinti’s substantial rights

. See Minn. R. Crim. P. 31.01; see also State v. Rodriguez , 754 N.W.2d 672, 68 3

- 84 (Minn. 2008) ( applying harmless

- error analysis to alleged error s in sentencing procedure)

. No such impairment is apparent from this record

. The sentencing judge was amply familiar with the case and with Regguinti. She presided over Regguinti Sr. ’s trial, hearing evidence as to precisely the same offense for which she sentenced Regguinti. She also observed Regguinti testify at his father’s trial. And she consulted with the trial judge about Regguinti’s sentence. Regguinti argues that this consulta tion indicates that the sentencing judge improperly prejudged his sentence. We are not persuaded

. The sentencing judge thoroughly reviewed the presentence investigation report , read letters from Regguinti’s family, and invited Regguinti to9

present his ow n comments during the sentencing hearing

. He has not identified any evidence or arguments that the sentencing judge failed to consider. Because Regguinti was sentenced by a judge thoroughly familiar with the facts of his case and all of the factors relev ant to his sentencing requests, we conclude that he is not entitled to relief based on the fact that the judge did not preside at his trial. IV. T he district court did not abuse its discretion by denying a d ownward sentencing departure. A district court must impose the presumptive sentence unless “identifiable, substantial, and compelling circumstances” justify a downward departure

. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotation omitted), review denied (Minn. Sept. 17, 2013). We review a district court’s decision to grant or deny a departure from the presumptive sentence for abuse of discretion, State v. Geller , 665 N.W.2d 514, 516 (Minn. 2003), and will reverse a presumptive sentence only in rare cases, State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). Dispositional departure The appropriateness of a dispositional departure depends on the defendant as an individual, “on whether the presumptive sentence would be best for him and for society.” State v. Heywood , 338 N.W.2d 243, 244 (Minn. 1983). A district court must “deliberately ” consider circumstances for and against departure

. State v. Mendoza , 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). But it is not obligated to depart even if mitigat ing factors are present. State v. Bertsch , 707 N.W.2d 660, 668 (Minn. 2006)

.10

Regguinti argues that the district court abused its discretion by denying his request for a downward departure because he is “amenable to probation

. ” We disagree . A defendant’s amenability to probation , a s determined by his age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends or family , is a prime consideration in considering a downward dispositional departure. See State v

. Trog , 323 N.W.2d 28, 31 (Minn. 1982). But “merely being amenable to probation” is not sufficient to stay a presumptively executed sentence. State v. Soto , 855 N.W.2d 303, 30 8 (Minn. 2014). A defendant must be particularly amenable to probation, distin guishing himself from most others, to present the substantial and compelling circumstances required for departure. Id. The district court expressly considered the Trog factors and found that they weigh somewhat in Regguinti’s favor

. But the district court determined that they do not add up to a substantial and compelling reason warranting departure from the presumptively executed sentence

. The district court also noted that the probation officer who conducted Regguinti’s presentence inv estigation recommended an executed sentence. That a nother district court presented with this record may have granted a dispositional departure does
not invalidate Regguinti’s sentence. See Bertsch , 707 N.W.2d at 668

. W e conclude that the district court did not abuse its discretion by imposing an executed sentence. Durational departure Unlike a dispositional departure, the appropriateness of a durational departure depends only on the nature of the offense. State v. Behl , 573 N.W.2d 711, 713 (Minn. App. 1998) (citing State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995)), review denied11

(Minn. Mar. 19, 1998). “[O]ffender

- related factors do not support durational departures.” State v. Peter , 825 N.W.2d 126, 130 (Minn. App. 2 012), review denied (Minn. Feb. 27, 2013). A district court may grant a downward durational departure “if the defendant’s conduct is significantly less serious than that typically involved in the commission of the offense.” State v. Mattson , 376 N.W.2d 4 13, 415 (Minn. 1985). Regguinti argues that the district court failed to thoroughly analyze his request for a downward durational departure and improperly focused on the severity of B.M.

- O.’s injuries. We are not persuaded

. First, Regguinti’s only argume nt in favor of a departure was that he did “not act [] alone.” But acting in concert with others is the very essence of an aiding

- and

- abetting offense. Second, while the district court’s discussion of Regguinti’s departure request was not extensive, the court plainly considered whether Regguinti’s conduct was significantly less serious than that typically involved in the offense of aiding and abetting first

- degree assault, explaining that “[q]uite the opposite is true.” The record indicates that Regg uinti acted jointly with his father and cousin to repeatedly hit and kick B.M.

- O., with, as the district court noted , “devastating” consequences. We conclude that t he district court did not abuse its discretion by determining that this conduct does not wa rrant a downward durational departure. Affirmed.