This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A16-0069 State of Minnesota, Respondent,

vs. Kim Ronnie Blatcher, Appellant. Filed December 27, 2016 Affirmed Reyes, Judge Hennepin County District Court File No. 27-CR-15-6540 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. B ond, Assistant Public Defender, St. Paul, Minne sota (for appellant) Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes, Judge. U N P U B L I S H E D O P I N I O N REYES , Judge On appeal from his conviction of aiding and abetting first-degree aggravated robbery, appellant argues that the district c ourt committed reversible error in instructing2 the jury and abused its discretion by deny ing his motion for a do wnward dispositional departure. We affirm. FACTS One night in February 2015 , appellant Kim Ronnie Blatcher attended a party at J.P.’s house. Appellant was upset with M.L. because M.L. ha d allegedly touched appellant’s girlfriend inappropriately. J.P. contacted M.L. through Facebook, purportedly inviting him to the party to purchase a gun, but J.P.’s actual intent in inviting M.L. was to rob him. Appellant was aware of J.P.’s plan. When M.L. arrived at the party, appellant and J.P. confronted him. Appellant began hitting M.L, and J.P. then started kicking M.L. After M.L. fell to the ground, J.P. and appellant took some of M.L.’s belong ings, including cash from his wallet. As a result of the assault, two of M.L.’s teeth were chipped and he had abrasions on his back, lacerations inside his mouth, and a concussion. Appellant was charged with one count of aiding and abetting first-degree aggravated robbery and one count of aiding and abetting third-degree assault. A jury trial was held in September 2015, and the jury found appellant guilty of both counts. Appellant moved for a downward dispositional or durational departure. The district court denied the motion, entered judgment of conv iction on the aggravated robbery charge, and sentenced appellant to a presumptive sentence of 48 months in prison. This appeal follows.3 D E C I S I O N
I. The district court did not e rr in instructing the jury. Appellant argues that the district court committed reversible error in instructing the jury. We disagree. “[District] courts are permitted consider able freedom when determining how to instruct the jury as long as the jury instruction is not confusing or misleading on fundamental points of the law.” State v. Gutierrez , 667 N.W.2d 426, 434 (Minn. 2003). In reviewing jury instructions for error, appellate courts “rev iew the instructions in their entirety to determine whether th ey fairly and adequately expl ain the law. An instruction that materially misstates the law is erroneous.” State v. Gatson , 801 N.W.2d 134, 147 (Minn. 2011) (citation omitted). A. Omission of instructions from final oral charge to the jury Appellant first argues that the district court erred in its final oral charge to the jury by omitting jury instructions on (1) accomplice testimony; (2) evaluating direct and circumstantial evidence; (3) evaluating w itness testimony and credibility; and (4) the duties of judges and juries. The accomplice- testimony instruction was read to the jury just before J.P. testified. The other three omitte d jury instructions were read to the jury as part of the district court’s preliminary instru ctions. The record also suggests that these three instructions were provided in written formto the jury for use during deliberation. Because appellant did not object to the timi ng or manner of the district court’s jury instructions at trial, we review for plain error. State v. Milton , 821 N.W.2d 789, 805 (Minn. 2012). In reviewing for plain error, we apply a three-part test, requiring that the4 challenging party show (1) an error, (2) that is plain, and (3) that affects the defendant’s substantial rights. Id. An error is plain if it “contravene s case law, a rule, or a standard of conduct.” State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). If the three prongs of the plain-error test are met, a reviewing court “may correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Taylor , 869 N.W.2d 1, 15 (Minn. 2015) (alte ration omitted) (quotations omitted). A district court may give preliminary in structions “[a]fter the jury has been impaneled and sworn, and befo re the opening statements.” Minn. R. Crim. P. 26.03, subd. 4. With respect to the fi nal instructions, “[t]he [distric t] court may instruct the jury before or after [closing] argum ent. Preliminary instructions need not be repeated.” Minn. R. Crim. P. 26.03, subd. 19(5). Appellant relies on State v. Peterson , 673 N.W.2d 482 (Minn. 2004), in arguing that the district court erred by omitting the four enumerated instructions from its final oral charge to the jury. In Peterson , the district court gave pr eliminary instructions on the presumption of innocence and the definition of proof beyond a reasonable doubt but did not reread them in the final oral charge to the jury, although wr itten instructions were provided to the jury. 673 N. W.2d at 484–85. The supreme c ourt held that their omission constituted a constitutional defect, requiring auto matic reversal of Peterson’s convictions. Id. at 487. The supreme court reasoned that “[t]he presumption of innocence is a fundamental component of a fair trial under ou r criminal justice system” and that “[t]he reasonable doubt standard of proof provides concrete substance for the presumption of innocence.” Id. at 486 (quotation omitted).5 Appellant reads Peterson broadly to require that all jury instructions, or at least the four “core” jury instructions at issue here, need to be included in the final oral charge to the jury. But, the supr eme court only held in Peterson that a final oral charge omitting instructions on the presumption of inno cence and the definition of proof beyond a reasonable doubt denies a defe ndant due process of law. Id. Moreover, this court has previously held that adequate preliminary instructions on circumstantial evidence and witness credibility “need not be repe ated in final instructions.” State v. Duemke , 352 N.W.2d 427, 432 (Minn. App. 1984). Appellant does not cite any caselaw, ru le, or standard of conduct requiring the district court to reread instructions alre ady given on accomplice testimony, direct and circumstantial evidence, witness testimony a nd credibility, and the duties of the judge and the jury. We conclude that appellant has not shown that the district court’s omission of the four instructions in the final oral char ge to the jury was error. Because appellant cannot meet the first prong of th e plain-error test, we need no t consider the other prongs.
State v. Brown , 815 N.W.2d 609, 620 (Minn. 2012).
B. Response to jury questions Appellant next argues that the district court abused its discretion in providing additional instructions to the ju ry in response to two questi ons from the jury. In response to a question from the jury, “[t]he [district] court has the discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all.”
State v. Laine , 715 N.W.2d 425, 434 (Minn. 2006) (quotation omitted). Additional instructions may be appropriate when “the inte rests of justice require that the jury have a6 full understanding of the case and the rule s of law applicable to the facts under deliberation.” State v. Murphy , 380 N.W.2d 766, 772 (Minn. 1986) (quotation omitted). We review a district court’s decision to give additional instructions in response to a jury question for an abuse of discretion. See Laine , 715 N.W.2d at 434. 1. First jury question The first question the jury asked was “[ d]oes benefitting from a crime (aggravated robbery) mean an individual aided and abette d a crime?” The district court provided the following answer: “Benefitting from a crime” by itself does not constitute aiding and abetting. There must be proof beyond a reasonable doubt that the defendant: (1) Knew that th[e] crime would be or was being committed. (2) That the defendant, by his conduct or presence, intended to further the commission of the crime. (3) That the defendant’s conduct or presence did further the commission of the crime. However, “benefitting from a cr ime” may be viewed as evidence on any of these three elem ents of aiding and abetting. Whether it is sufficient is entirely up to you. Appellant objected to the last two sentences of the instruction. Appellant argues that they are “confusin gly contradictory,” first stating that benefitting from a crime itself does not constitu te aiding and abetting, but then stating that the jury could determine if benefitting from a crime is sufficient. Appellant also argues that the instruction is an inaccurate statement of the law because it instructed the jury that it could determine whether benefitting from a crime itself wa s sufficient to prove aiding and abetting.7 Both of appellant’s arguments stem fro m his misreading of the district court’s instruction. The instruction must be read as a whole. State v. Matthews , 779 N.W.2d 543, 549 (Minn. 2010). Read in context, the instruction states that benefitting from a crime by itself does not constitu te aiding and abetting, but that benefitting from a crime may constitute sufficient evidence on the indivi dual elements of aiding and abetting. Furthermore, the instruction st ates that the jury may determ ine whether benefitting from a crime, alone or in combination with other circumstances, is suffi cient to satisfy an individual element, which is a correct statement of the law. See State v. Crow , 730 N.W.2d 272, 280 (Minn. 2007). 2. Second jury question The second question the jury asked was “[ w]hat is the definition of ‘intentionally’ and is there any requirement of premeditation?” The district court instructed the jury as to the definition of “intentionally” and stat ed that “[t]here is no requirement that premeditation be proved in this case.” The re mainder of the instruction reads as follows: The term “premeditation” as used here means that the defendant considered, planned, pr epared for, or determined to commit the act before he committed it. It is not necessary that premeditation exist for a specific length of time. A premeditated decision to act may be reached in a short period of time. An unconsidered or ra sh impulse is not premeditated. By the way, both intent and premeditation, being processes of the mind, [are] wholly subjective and hence not always susceptible to proof by direct evidence. It may be inferred from all the circumstan ces surrounding the event—in other words, it may be proved by circumstantial evidence. At trial, appellant only objected to the final paragraph of the instruc tion, but on appeal he also challenges the portion of the pr eceding paragraph cited above.8 Appellant does not argue that the instruc tion misstated the law, but argues that the objected-to portion of the instruction was “c onfusing, and introduced, defined, and discussed methods of proof of legal concepts th at were completely irrelevant to the case.” We are not persuaded. While the jury did not need to know the definition of premeditation or the methods of proof for premeditation, the jury’s question reflected its confusion regarding the concep ts of intent and premeditati on and what needed to be proved in the case. The su pplemental instruction, which defined the two concepts, clarified that there was no requirement of pr emeditation and stated that both intent and premeditation may be proved by circumstantial evidence. Th e instruction did not mislead the jury on a fu ndamental point of law. In conclusion, because the di strict court’s supplemental in structions in response to the jury’s questions correctly stated the law and were not mi sleading or confusing on a fundamental point of law, we conclude that the district court did not abuse its discretion by providing the instructions.
II. The district court did not abuse its disc retion by denying appellant’s motion for a downward dispos itional departure. Appellant argues that the district court abused its discretion by denying his motion for a downward dispositional departure from the sentencing guidelines. We disagree. Appellate courts “afford the [district] court great discretion in the imposition of sentences and reverse sentencing decisions only for an abuse of discretion.” State v.
Soto , 855 N.W.2d 303, 307–08 (Minn. 2014) (q uotation omitted). A district court must impose the presumptive sentence under the sentencing guidelin es unless there are9 “substantial[] and compelling circumstances” that warrant departure. Minn. Sent. Guidelines 2.D.1 (2014). “Substantial and co mpelling circumstances are those that make the case atypical.” State v. Peter , 825 N.W.2d 126, 129 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). Only in a “rare” case will an appellate court reverse a district court’s refusal to depart. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). In denying appellant’s motion, the district court explaine d its reasoning as follows: I think some of the arguments ra ised by [defense counsel] are good, but in order to reach them, I have to believe you. However, the jury chose not to, so I don’t think I have the luxury to do that. And I hear d the testimony by the witnesses to the contrary as well. So I would say that, given the factors [the prosecutor] referred to, in some instances they could have at least led to an argument for an upward departure. The district court sentenced appellant to 48 months in prison, the middle of the presumptive range of sentences for defendant s with appellant’s criminal history. Appellant argues that the district court abused its discretion in denying his motion for a downward dispositional departure because he is particularly amenable to probation. A district court may depart dispositionally “if the defendant is particularly amenable to probation or if offense-related mitig ating circumstances are present.” State v. Donnay , 600 N.W.2d 471, 473-74 (Minn. App. 1999) (quotation omitted), review denied (Minn. Nov. 17, 1999). A number of factors, “includi ng the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family,” are relevant to the determination of whether an individual is particularly amenable to probation. State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982).10 In support of his motion for a downward dispositional departure, Blatcher argued that he lacked substantial cap acity for judgment on the day of the assault; he accepted responsibility for hitting M.L.; he showed remo rse; and he was respectful throughout the court proceedings. However, a district court is not requi red to depart dispositionally, even if the defendant is particul arly amenable to probation. State v. Olson , 765 N.W.2d 662, 664–65 (Minn. App. 2009). And, there is evidence indicating that appellant planned the attack with J.P., instigat ed the assault on M.L., and prev ented others from aiding M.L. Moreover, while the district court did not discuss the Trog factors cited by appellant, there is no requirement that the district court explain its re asons for imposing a presumptive sentence. State v. Van Ruler , 378 N.W.2d 77, 80 (Minn. App. 1985). Appellant argues that the record shows that the district court failed to consider the circumstances for and against departure becau se it apparently believed “that the jury’s verdict and resolution of the ev idence as to guilt precluded an y exercise of its discretion at sentencing.” “If the district court has di scretion to depart from a presumptive sentence, it must exercise that discretion by deliberat ely considering circumstances for and against departure.” State v. Pegel , 795 N.W.2d 251, 25 3 (Minn. App. 2011) (quotation omitted). Appellant misinterprets the district court’ s comments. Some of the factors cited by appellant in his motion were inconsistent with the jury’s determination that he was guilty of aiding and abetting aggravated robber y. Appellant’s argument that he lacked substantial capacity for judgme nt when confronting M.L. is inconsistent with the evidence presented to the ju ry that appellant preplanned the robbery with J.P., participated in the robbery, a nd shared in the proceeds of the robbery. Similarly,11 appellant’s arguments that he accepted respon sibility and showed remorse are undercut by the fact that he only adm itted to punching M.L. and conti nued to deny his involvement in the robbery. To the extent that appellant ’s arguments for a departure are inconsistent with the jury’s determination of litigated issues, the district c ourt did not err in refusing to consider those circumstances in deciding whether to grant a ppellant’s motion. Moreover, the district court’s comment that the factors referred to by the prosecutor could support an argument for an upward departur e demonstrates its recognition that a decision regarding a departure motion cannot be made by merely deferring to the ju ry verdict. We conclude that this is not the “rare” case where the di strict court abused its discretion by denying appellant’s motion for a downward di spositional departure. Affirmed.