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This opinion will be unpublished and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
A16-1835

State of Minnesota,
Respondent,

vs.

Emery James Jenkins,
Appellant.

Filed September 5, 2017
Affirmed
Halbrooks, Judge

Itasca County District Court
File No. 31-CR-14-3043

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the district court’s imposition of a sentence with an upward
durational departure, arguing that there are no substantial and compelling circumstances

2
demonstrating that his conduct was significantly more serious than that typically involved
in the commission of first-degree manslaughter. We affirm.
FACTS
On October 16, 2014, Investigator A.J. Morse responded to a report that appellant
Emery James Jenkins ’s 12 -week-old son, J.J.J., was unresponsive in Jenkins’s home.
Jenkins told Investigator Morse that, within the last week , J.J.J. had been bitten by a
neighbor’s dog, fallen out of a swing, and been dropped on his head in the shower by
Jenkins. Emergenc y personnel transported J.J.J. to the hospital where he died two days
later. The autopsy revealed that J.J.J. had severe blunt-force trauma to his body, including
a skull fracture and multiple rib fractures, and multiple abrasions and injuries to his chest,
abdomen, hands, fingers, feet, and toes.
One week after the incident, S.R.B.—J.J.J.’s mother—told Investigator Mike Bliss
that on multiple occasions, Jenkins had bitten J.J.J. so hard that he bled; that Jenkins would
not allow J.J.J. to go to a scheduled medical appointment because he did not want them to
see J.J.J.’s injuries; and that she and Jenkins lied about the neighbor’s dog biting J.J.J .
Jenkins was arrested.
Pursuant to an Alford plea, Jenkins pleaded guilty to first -degree manslaughter
(malicious punishment of a child) in violation of Minn. Stat. § 609.20(5) (2014). See North
Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). He also admitted to two aggravating
factors: a particularly vulnerable victim and a prior felony conviction wit h an injured
victim. Minn. Sent. Guidelines 2 .D.3.b.(1), (3) (2014). The district court convicted
Jenkins of first-degree manslaughter, durationally departed from the presumptive sentence

3
based on the two aggravating factors that Jenkins admitted, and sentenced Jenkins to 180
months in prison.1 This appeal follows.
D E C I S I O N
Jenkins first contends that the district court failed to explain why his conduct
justified a durational departure. “Whether a stated reason for departure is proper is a legal
determination that we review de novo.” 2 State v. Alvarez , 820 N.W.2d 601, 622 (Minn.
App. 2012), aff’d, 836 N.W.2d 527 (Minn. 2013).
Before imposing an upward durational departure, the district
court must be satisfied that one or more factual circumstances
exist to support a departure that is not embodied in the guilty
plea, and must explain why those circumstances create a
substantial and compelling reason to impose a sentence outside
the presumptive range.

State v. Robideau, 817 N.W.2d 180, 185 (Minn. App. 2012) (quotation omitted); see Minn.
Sent. Guidelines 2.D.1 (2014). “[A]bsent a statement of the reasons for the sentencing
departure placed on the record at the time of sentencing, no departure will be allowed.”
State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003). But “an aggravating factor is a reason
that explains why the additional facts . . . provide the district court a substantial and
compelling basis [to depart from the sentencing guidelines] grid.” State v. Yaritz , 791

1 The presumptive range for this conviction with Jenkins’s three criminal -history points
was 104 to 146 months.

2 The parties agree that the standard of review for the issues in this case is abuse of
discretion. This court reviews “a district court’s decision to depart from the presumptive
guidelines sentence for an abuse of discretion.” State v. Hicks , 864 N.W.2d 153, 156
(Minn. 2015). But here, although Jenkins frames it as an issue of whether his conduct is
“significantly more serious than a typical first -degree manslaughter offense,” the dispute
is over whether the aggravating factors are proper reasons for departure.

4
N.W.2d 138, 144 (Minn. App. 2010) (alteration in original) (quotations omitted) , review
denied (Minn. Feb. 23, 2011). “[T]he record is adequate if the district court clearly
identifies the aggravating factors on which it relies and thereby explains why the facts
provide a substantial and compelling reason to depart.” Id. (citing State v. Rourke , 773
N.W.2d 913, 920 (Minn. 2009)).
At the sentencing hearing, the district court stated:
At the plea hearing, you waived your right to have a jury
trial on the aggravated sentence, admitting that there were two
aggravating factors that exist in this case.

The first being that the victim, [J.J.J.], was particularly
vulnerable . . . due to his age, and that you knew or should have
known about his vulnerability due to his a ge, and the second
aggravating factor being that the current conviction is for an
offense . . . in which the victim is injured, and that you have a
prior felony conviction for an offense in which the victim was
otherwise injured.

. . . .

By your own adm ission, there are two aggravating
factors that exist, and so I am finding that the aggravated
sentence is warranted in this matter.

Because the district court identified the aggravating factors, we conclude that the
district court properly explained why t he facts provided a substantial and compelling
reason to depart. See id.
Jenkins contends that the district court erred when it based its upward durational
departure on the two aggravating factors because his conduct was not significantly more
serious than any other first -degree manslaughter offense. He argues that the victim’s

5
vulnerability and injuries are already contained within the elements of first -degree
manslaughter, and that therefore, no justification for departure exists.
A district court may only depart from the sentencing guidelines if “identifiable,
substantial, and compelling circumstances” exist. Rourke, 773 N.W.2d at 919 (quotation
omitted). A single aggravating factor is sufficient to uphold an upward departure. State v.
Solberg, 882 N.W.2d 618, 624 (Minn. 2016). But conduct that constitutes proof of the
criminal offense may not be used to justify an upward departure. State v. Williams , 608
N.W.2d 837, 840 (Minn. 2000). Here, the district court based its departure on the presence
of two aggravating factors: (1) particular vulnerability due to age and (2) injury to the
victim and a prior felony conviction for an offense that injured a victim.
The first aggravating factor exists when the victim is “particularly vulnerable due
to age, infirmity, or reduced physical or mental capacity, and the offender knew or should
have known of this vulnerability.” Minn. Sent. Guidelines 2.D.3.b.(1). The first -degree
manslaughter statute requires the victim to be under 18 years old. Minn. Stat. §§ 609.20(5),
.376, subd. 2, .377, subd. 1 (2014).
We addressed whether this aggravating factor is a proper reason for a departure in
State v. Mohamed. 779 N.W.2d 93, 96-100 (Minn. App. 2010), review denied (Minn. May
18, 2010). Mohamed pleaded guilty to malicious punishment of a child and stipulated to
the existence of three aggravating factors, which included a stipulation that Mohamed’s
four-month-old son was particular ly vulnerable because of his age. Id. at 95 -96. On
appeal, Mohamed argued that vulnerability due to age was not a proper aggravating factor
because “the legislature ha[d] alre ady taken into account . . . that the victims of th[e]

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offense would necessaril y be children.” Id. at 97-98. We stated that, “given the broad
spectrum of physical development captured in [the statute’s] 18 -year time span, the
legislature’s recognition does not preclude consideration of the victim’s infancy as an
aggravating factor. ” Id. at 98. We concluded that Mohamed’s son was “particularly
vulnerable among the broad class of child victims who are covered by the statute” because
the victim was four months old, was at an early stage of development, and was “incapable
of perceiving danger, fleeing or shielding himself from harm, seeking help, or reporting
the abuse.” Id.
Here, J.J.J. was three months old at the time of the incident. Because h e was
particularly vulnerable among the class of child victims in the statute, we conclude that the
district court’s reliance on the first aggravating factor was proper.
The second aggravating factor exists when “[t]he current conviction is for a criminal
sexual conduct offense, or an offense in which the victim was otherwise injured, and [if]
the offender has a prior felony conviction for a criminal sexual conduct offense or an
offense in which the victim was otherwise injured.” Minn. Sent. Guidelines 2.D.3 .b.(3).
The malicious-punishment-of-a-child statute prohibits “unreasonable f orce or cruel
discipline.” Minn. Stat. § 609.377, subd. 1.
The supreme court addressed whether this aggravating factor is a proper reason for
departure in State v. Meyers . 869 N.W.2d 893 , 896 -900 (Minn. 2015). Meyers was
convicted of assaulting a woman in a parking ramp and received an aggravated sentence
because he had a prior felony conviction in which the victim was injured. Id. at 894-95;
see Minn. Sent. Guidelines 2.D.3.b.(3). Meyers argue d that the “repeat offender

7
aggravating factor cannot be applied because it duplicates the injury element of his first -
degree assault conviction.” Meyers, 869 N.W.2d at 896. The supreme court noted that the
aggravating factor “includes facts other than t hose needed to prove the offense of
conviction” because “[t]he prior conviction is not an element of first -degree assault.” Id.
at 899. The supreme court concluded that “the Legislature, through the repeat offender
aggravating factor, has expressly deter mined that recidivism for particular felonies is a
valid basis for an upward sentencing departure” and held that the district court did not err
in giving Meyers an upward durational departure. Id. at 900.
Jenkins admitted that he had a prior felony conviction in which a victim was injured.
Because the prior conviction was not an element of Jenkins’s manslaughter charge, w e
conclude that the district court’s application of the second aggravating factor was proper.
See id. at 899-900.
Jenkins contends th at the aggravated sentence does not further the purp ose of the
sentencing guidelines. “We review a district court’s decision to depart from the
presumptive guidelines sentence for an abuse of discretion. If the reasons given for an
upward departure are l egally permissible and factually supported in the record, the
departure will be affirmed.” Hicks, 864 N.W.2d at 156 (quotation and citations omitted).
A single aggravating factor is sufficient to uphold an upward departure. Solberg,
882 N.W.2d at 624. In sentencing Jenkins, the district court relied on two admitted
aggravating factors. Because those aggravating factors are proper reasons for departure ,

8
we conclude that the district court properly exercised its discretion when it departed from
the presumptive sentence.
Affirmed.