State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1565

State of Minnesota,
Respondent,

vs.

Jessten Gordon Grover,
Appellant.

Filed August 14, 2017
Affirmed
Schellhas, Judge

Itasca County District Court
File No. 31-CR-15-1345

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Grand
Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pres iding Judge; Schellhas, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his presumptive guide lines sentence for first-degree criminal
sexual conduct, arguing that the district court abused its discretion in denying his motion
for a downward durational departure. We affirm.
FACTS
Between about July 1 and October 18, 2014, appellant Jessten Grover, who was then
16 or 17 years old,1 engaged in sexual penetration with 12-year-old D.B. on more than one
occasion and impregnated her. The district court certified Grover for adult prosecution, and
respondent State of Minnesot a charged Grover with ten coun ts of first-degree criminal
sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2014) (sexual penetration
with complainant under 13 year s of age and more than 36 months younger than actor).
Grover appealed his adult certification, and we affirmed. In re Welfare of J.G.G., No. A15-
0865, 2015 WL 7357605, at *1, *5 (Minn. App. Nov. 23, 2015).
At Grover’s jury trial, the state presented D.B.’s testimonial acknowledgement of a
dating relationship with Grover that included sexual penetration, DNA evidence proving
that D.B.’s child was fathered by Grover, and a recording of an incriminating statement
that Grover made to police. The state also introduced as “[e]vidence of domestic conduct,”
Minn. Stat. § 634.20 (2016), testimony and exhi bits showing that Grover and D.B. had
persisted in mutual contact in violation of domestic-abuse no-contact orders issued by the

1 Grover’s 17th birthday fell within the specified date range.

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district court in connection with the crimin al-sexual-conduct char ges. The jury found
Grover guilty of two counts of first-degree cr iminal sexual conduct and acquitted him of
the remaining eight counts.
Grover moved for a downward dispositional or durational departure. The district
court conducted a contested sentencing hearing, at which a defense expert testified that
Grover suffers from bipolar disorder that was undiagnosed and untreated at the time of his
offense. The defense expert also testifie d generally regarding brain development,
judgment, and decision-making during adoles cence. The court sentenced Grover to 144
months in prison for one coun t of first-degree criminal sexual conduct, a presumptive
guidelines sentence.
This sentencing appeal follows.
D E C I S I O N
The Minnesota Sentencing Guidelines provide sentencing ranges that are
“presumed to be appropriate for the crimes to which they ap ply.” Minn. Sent. Guidelines
2.D.1 (2014). “[A] court must impose the presumptive sentence—that is, a sentence within
the applicable disposition and range—‘unless th ere exist identifiable, substantial, and
compelling circumstances to support a departure.’” State v. Fleming, 883 N.W.2d 790, 795
(Minn. 2016) (quoting Minn. Sent. Guide lines 2.D.1). “Subst antial and compelling
circumstances for a durational departure are those which demonstrate that the defendant’s
conduct was significantly more or less se rious than that typically involved in the
commission of the crime in question.” State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017)
(quotations omitted).

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“[T]he presence of mitigati ng factors does ‘not obligat e the court to place [a]
defendant on probation or impose a shor ter term than the presumptive term.’” Wells v.
State, 839 N.W.2d 775, 781 (Minn. App. 2013 ) (second alteration in original) (quoting
State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)), review denied (Minn. Feb. 18, 2014). If
one or more mitigating factor s is shown, “[w]hether to depart [downward] from the
sentencing guidelines rests within the district court’s discretion, and the district court will
not be reversed absent an abuse of that discretion.” State v. Pegel, 795 N.W.2d 251, 253–
54 (Minn. App. 2011) (citing State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999)).
“Only in a rare case will a reviewing court reverse the imposition of a presumptive
sentence.” Id. at 253 (citing State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)). But “[i]f the
district court has discretion to depart from a presumptive sentence, it must exercise that
discretion by deliberately c onsidering circumstances for and against departure.” Id.
(quotation omitted). “When the record demonstrates that an exercise of discretion has not
occurred, the case must be remanded for a hearing on sentencing and for consideration of
the departure issue.” Id. Moreover, we may modify any se ntence that is “unreasonable,
inappropriate, excessive, [or] unjustifiably disparate,” Minn. Stat. § 244.11, subd. 2(b)
(2016), or if “modification is in the interest of fairness and uniformity,” State v. Jackson,
749 N.W.2d 353, 360 (Minn. 2008) (quotations omitted).
In this case, Grover argues that the distri ct court abused its discretion by imposing
a presumptive guidelines sentence instea d of granting his motion for a downward
durational departure. He begins by asserting that the c ourt was presented with unrebutted
evidence of two mitigating factors: (1) due to his untreated bipolar disorder, Grover “lacked

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substantial capacity for judgment” when he committed first-degree criminal sexual
conduct; and (2) “other substantial grounds exist tending to mitigate Grover’s culpability”
for that crime, specifically, (a) Grover’s youth and its negative impact on his capacity for
judgment, and (b) the “consensual” nature of Grover and D.B.’s adolescent sexual
relationship.
The sentencing guidelines provide a “nonexclusive list of factors that may be used
as reasons for departure,” including the mitigati ng factor that “[t]he offender, because of
physical or mental impairment, lacked substantial capacity for judgment when the offense
was committed.” Minn. Sent. Guidelines 2.D.3. a.(3) (2014). The guid elines also identify
as a mitigating factor that “[o]ther substantial grounds exist that tend to excuse or mitigate
the offender’s culpability, although not amounting to a defense.” Id. (5) (2014).
But “[a] durational departure must be base d on factors that reflect the seriousness
of the offense, not the characteristics of the offender.” State v. Solberg, 882 N.W.2d 618,
623 (Minn. 2016). An offender’s age is a ch aracteristic of the offender relevant to
dispositional departure, not a characteristic of the offense relevant to durational departure.
Id. at 624. Likewise, the offender’s purported “mental impairment is an offender-related
characteristic that cannot justify a downward durational departure.” Rund, 896 N.W.2d at
534 n.11. It follows that the district court had no discretion to grant Grover’s motion for a
downward durational departure based on his youth or on evidence regarding his untreated
bipolar disorder and any natural limitations of hi s adolescent brain, ev en if that evidence
was both credible and unrebutted.

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By contrast, we believe that the “cons ensual” nature of Grover and D.B.’s
adolescent sexual relationship is an offense-re lated characteristic th at may qualify as a
“substantial ground[] . . . that tend[s] to excuse or mitigate [Grover]’s culpability, although
not amounting to a defense.” Minn. Sent. Guidelines 2.D.3.a.(5); see Minn. Stat. § 609.342,
subd. 1 (2014) (“A person who engages in sexua l penetration with another person . . . is
guilty of criminal sexual conduct in the first degree if . . . the complainant is under 13 years
of age and the actor is more than 36 months older than the complainant. Neither mistake
as to the complainant’s age nor consent to the act by the compla inant is a defense . . . .”).
Evidence presented at trial indi cates that D.B. appeared to be more “mature” than other
children her age; Grover and D.B. met at a school functi on; D.B. initially lied to Grover
about her age, claiming to be “14 going on 15” years old; Grover and D.B. began a dating
relationship about six months before having sex; Grover and D.B. discussed whether to
have sex, and whether to use “protection,” before having sex; D.B. agreed to have sex with
Grover; and Grover and D.B.’s relationshi p involved emotional intimacy as well as
physical intimacy. And the following colloquy occurred between Grover’s attorney and the
defense expert at the contested sentencing hearing:
Q: [I]n your experience, are the . . . facts in this case somewhat
less serious than those typically found in First Degree Criminal
Sexual Conduct cases?
A: Well, in many Criminal Sexual Conduct in the First Degree
cases, you’re talking about an ad ult who’s had sex with . . . a
very small child, or you’re talking about someone who used a
weapon and committed a violent rape.
Q: Okay. So would you say this is a little bit less serious than
the general First Degree Crim Sex[?]
A: Yes.

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But even if the “consensual ” nature of Grover and D. B.’s adolescent sexual
relationship is a mitigating factor here, the district court was not required to depart. See
Wells, 839 N.W.2d at 781 (stating that “the presence of mitigating factors does not obligate
the court to place a defendant on probation or impose a shorter term than the presumptive
term” (quotation omitted)). Befo re imposing the 1 44-month pris on sentence, the court
admonished Grover:
You continued to engage in [a] relationship with [D.B.],
even after learning . . . that she was only 12 years old, and even
researched the law regarding criminal sexual conduct. You’d
been warned about [D .B.]’s age, and you knew your actions
were against the law, and yet you persisted.

Clearly, the court considered and rejected Grover’s argument that the “consensual” nature
of Grover and D.B.’s adolescent sexual re lationship rendered his criminal conduct
significantly less serious than that typically involved in first-degree criminal sexual
conduct. The court had discretion to do so. See Pegel, 795 N.W.2d at 253–54 (stating that
even if one or more mitigating factors is shown, “[w]hether to depart [downward] from the
sentencing guidelines rests within the district court’s discretion”).
Grover also claims that the district court denied his motion for a downward
durational departure “in part because [the c ourt] had ‘previously found that no mitigating
circumstances exist’” in the adult-certification proceedings. See J.G.G. , 2015 WL
7357605, at *1–6 (discussing district court’s findings on six public-safety factors relevant
to adult certification, including seriousness of Grover’s offense in terms of community
protection). That claim has no support in th e record. Before imposing sentence, the court
explained its reasoning at length, recounting the evidence presented at trial and at the

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contested sentencing hearing and includin g but one glancing reference to the adult-
certification proceedings. Because the district court did not rely on its adult-certification
findings at sentencing, we need not consid er whether such reliance would have been
improper.
Finally, Grover asserts that the district court “focused exclusively on the evidence
submitted in support of a dis positional departure and ignored the evidence supporting a
durational departure.” Grover is correct that the district court’s sentencing explanation
centered on factors, such as Grover’s purport ed mental impairment at the time of his
offense, that are relevant to dispositional departure and are not relevant to durational
departure. But Grover has not identified any evidence supporting durational departure that
the district court failed to consider, and we see no such evidence on this record.
Instead, our review of the record indicates that the district court correctly articulated
the standards for downward dispositional and durational departures, summarized the
evidence presented at trial and at the contested sentencing hearing, and explained why that
evidence did not persuade it to depart fro m a presumptive guidelines sentence. We
therefore conclude that the district court di d not abuse its discretion in denying Grover’s
motion for a downward durational departure. See State v. Johnson, 831 N.W.2d 917, 925
(Minn. App. 2013) (stating that “[w]e wi ll 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” refusing to depart), review denied (Minn.

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Sept. 17, 2013). We also decline to exercise our authority under Minn. Stat. § 244.11, subd.
2(b), to modify Grover’s sentence.
Affirmed.