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This opinion will be unpublished and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
A17-0433

State of Minnesota,
Respondent,

vs.

Nathan George Oliver,
Appellant.

Filed January 29, 2018
Affirmed
Reyes, Judge

Beltrami County District Court
File No. 04-CR-16-3595

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

David Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Mark D. Nyvold, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his 56-month senten ce, a double upward durational departure
from the presumptive guidelines sentence for felony domestic assault, arguing that the
district court relied on two improper bases for the departure. He also asserts that the district
2
court did not explain the basis of the departur e and that he received ineffective assistance
of counsel. We affirm.
FACTS
Appellant Nathan George Oliver had an on-again-off-again relationship with N.B.
for approximately three years. On March 31 , 2016, Beltrami County issued an Order for
Protection (OFP) prohibiting appellant from having any contact with N.B. for a period of
two years. On November 2, 2016, N.B. received dialysis for a kidney condition. Later that
day, she rested at the home of appellant’s aunt, W.Z., where appellant stayed. N.B. testified
that she and appellant had occasional contact and that she knew appellant would be at
W.Z.’s home on November 2. N.B. stayed overnight.
N.B. awoke the next morning and noticed th at appellant appeared to be angry.
Appellant had N.B.’s phone and was searching it for a text message. They argued in W.Z.’s
kitchen. Appellant then struck the right side of N.B.’s face twice with his open hand and
punched the left side of N.B.’s jaw once. W. Z. stepped in front of appellant to protect
N.B., who left the kitchen an d called the police. The resp onding officers observed red
marks on both sides of N.B.’s face.
Appellant was arrested and charged with felony violation of an OFP and felony
domestic assault. Minn. Stat . §§ 518B.01, subd. 14(d)(1), 609.2242, subd. 4 (2016).
Appellant stipulated to three prior convic tions of qualified dom estic-violence-related
offenses within the previous ten years. Prior to a jury trial, the district court granted the
state’s request to pursue an upward sentencing departure based on the aggravating factor
3
of the victim’s particular vul nerability but denied its request to pursue a departure based
on the career-offender statute, Minn. Stat. § 609.1095, subd. 2 (2016).
The district court held a bifurcated jury trial on the charges and on the aggravating
factor. The jury found appellant guilty of both felony offenses. And in the Blakely trial,1
the jury found that the state had proved bey ond a reasonable doubt the aggravating factor
of the victim’s particular vulnerability on the day of the assault and that appellant knew of
her medical condition.
Before sentencing appellant, the district court reduced appellant’s presentence
criminal-history score by one point because it found that two prior convictions were
committed as part of a single behavioral incident. The st ate moved for a double upward
durational departure from a presumptive senten ce of 28 months based on the aggravating
factor of the victim’s vulnerab ility. The district court determ ined that “because the jury
did answer the questions that this [c]ourt in terprets as their finding that [N.B.] was
particularly vulnerable, an upward departure of an aggravated sentence is appropriate.”
The district court then stated:
So I think this is a case where the maximum upward departure
of two times is the cap. So the question that this [c]ourt has is
at what point between 28 and 56 [months] is appropriate. We
not only have [N.B.’s] particular vulnerability, but we do have
[appellant’s] history of assau ltive violence toward other
people, making him, despite th e remorse that he is showing

1 Under Blakely, “[a] district court must submit to a jury the question of whether the [s]tate
has proven beyond a reasonable doubt the existence of additional facts, which were neither
admitted by the defendant, nor necessary to prove the elements of the offense, but which
support reasons for [the sentencing] departure.” State v. Rourke , 773 N.W.2d 913, 921
(Minn. 2009). If the jury finds that the state has met its burden, the district court may
exercise its discretion to depart from the presumptive sentence. Id. at 919.
4
now, making him a particular threat to public safety. For that
reason, I do believe a double upw ard departure is the most
appropriate sentence in this case, given all the facts and given
the history.

The district court sentenced appellant to 56 months. This appeal follows.
D E C I S I O N
I. The district court did not abuse its dis cretion in imposing a sentence that is a
double upward durational departure.

Appellant challenges the district court’s imposition of a 56-month sentence, arguing
that it improperly relied on his “history of assaultive violence” and his “particular threat to
public safety” in imposing a double upward durational departure. We disagree.
We review a district court’s decision to depart from the sentencing guidelines for an
abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). In general, we
defer entirely to the district court’s judgment on the proper length of a sentencing departure
up to double the presumptive range when it has identified a proper reason to depart. Dillon
v. State, 781 N.W.2d 588, 596 (Minn. App. 2010), review denied (Minn. July 20, 2010).
Whether a particular reason for an upward departure is proper is a question of law, which
we review de novo. Id. at 595.
Under the Minnesota sentencing guidelines , a district court may depart from a
presumptive sentence only when the record contains “substan tial and compelling
circumstances” for the departure. State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008).
Substantial and compelling circumstances ar e those circumstances that indicate the
defendant’s conduct was significantly more serious than conduct typically involved in the
commission of the crime. Hicks, 864 N.W.2d at 157. Both the sentencing guidelines and
5
statute identify aggravating factors. Minn. Sent. Guidelines 2.D.3 (2016); Minn. Stat. §
244.10, subd. 5a (2016). “Aggravating factor s [are] reasons explaining why the facts of
the case provide the district court a substantial and compelling basis to impose a sentence
outside the range on the grid.” Rourke, 773 N.W.2d at 920.
The sentencing guidelines identify a victim’s “particular[] vulnerab[ility] due to age,
infirmity, or reduced physical or mental capacity, [when] the offender knew or should have
known of this vulnerability” as an aggravating factor. Minn. Sent. Guidelines 2.D.3.b(1)
(2016). See also Minn. Stat. § 244.10, subd. 5a(1) (2016). However, neither the guidelines
nor the statute identify a defendant’s history of assaultive violence or his potential threat
to public safety as aggravati ng factors. “Using appellant's prior offenses and speculating
as to his future offenses as a basis for upward departure (in the name of ‘public safety’) is
improper.” State v. Herrmann, 479 N.W.2d 724, 729 (Minn. 1992).
We assume without deciding that the district court relied on the challenged improper
factors and the proper aggravating factor of N.B.’s particular vulnerability in deciding the
duration of the sentencing depart ure. Therefore, we must de termine whether the district
court would have imposed the same sentence absent reliance on the improper factors by
considering the weight given to the imprope r factors and whether the remaining proper
factor found by the district court independently justifies the departure. State v. Mohamed,
779 N.W.2d 93, 100 (Minn. App. 2010), review denied (Minn. May 18, 2010). We must
also determine whether there is sufficient evidence to support the upward departure. State
v. Vance, 765 N.W.2d 390, 395 (Minn. 2009).
6
Here, the district court made one brief reference to appellant’s history of assaultive
violence and his threat to public safety when discussing the duration of the departure, and
then only after identifying the aggravating factor of the victim’s particular vulnerability as
its reason for departing. The district court did not submit the improper factors to the jury
or identify them in its sentencing order or report. We conclude that the district court gave
little weight to the improper factors.
As to the remaining proper factor, appellant concedes that victim vulnerability is a
proper aggravating factor and that the district court followed the proper steps to consider it
at the time of sentencing. Th e presence of a single aggrava ting factor of the victim’s
particular vulnerability, when supported by the record, is su fficient to uphold an upward
departure. State v. Peterson, 799 N.W.2d 653, 659-660 (Minn. App. 2011), review denied
(Minn. Sept. 28, 2011). Here, the district court allowed the jury to consider the aggravating
factor of victim vulnerability. The district court then concluded that an upward departure
was appropriate because the jury made a finding that N.B. was particularly vulnerable. The
court also identified N.B.’s particular vulnera bility as the sole aggravating factor in its
sentencing order and departure report.
Finally, the evidence overwhelmingly supports the district court’s departure based
on the jury’s finding of the vi ctim’s particular vulnerability.2 N.B. testified that she had
been diagnosed with complete kidney failure and a 30% functioning heart prior to the
assault. She received dialysis three days per week through a permanent port in her arm,

2 In his supplemental pro se brief, appellant argues that the departure is unsupported by
sufficient evidence based on the victim’s particular vulnerability, which we address here.
7
and she did not feel she coul d defend herself from appellant due to her illness. The
testimony of N.B.’s doctor an d W.Z. corroborated N.B.’s de scription of her weakened
condition. Both N.B. and W.Z. testified that N.B.’s illne ss and treatment made her too
weak to defend herself from appellant and that N.B. escaped the assault only with W.Z.’s
help. N.B. testified that appe llant knew of the extent of he r illness and had driven her to
dialysis treatments prior to the assault. The officer who arrested appellant testified that
appellant told him that N.B. was terminally ill. Appellant did not contest having knowledge
of N.B.’s illness and did not call any witnesses to rebut the state’s witnesses.
Appellant argues that, based on Mohamed, we should remand to the district court to
determine the weight given to the improper factors. 779 N.W.2d at 100. This argument is
misguided. In Mohamed, the defendant stipulated to three aggravating factors that the
district court relied on to impose an upward durational departure, two of which were later
determined to be improper. 779 N.W.2d at 96, 100. Upon reviewing the record, this court
could not discern the weight given to the improper factors and remanded for the district
court's determination of whethe r resentencing was warranted. Id. Here, based on our
review of the record, it is clea r that the district court placed more weight on the proper
factor than on the improper factors.
We conclude that the proper aggravatin g factor of the victim’s particular
vulnerability independently ju stified a double upward dur ational departure and is
overwhelmingly supported by the evidence. Th e district court gave little weight to the
improper factors. Therefore, the district c ourt did not abuse its discretion in sentencing
appellant to a 56-month, double upward departure.
8
II. Appellant’s pro se arguments lack merit.
We construe appellant’s pro se supplem ental brief to make three additional
arguments, one of which we addressed above.
A. The district court adequately ex plained the basis of the sentencing
departure.

Appellant argues that, following the Blakely trial, the district court did not explain
why the jury’s findings provided it a reason to depart. The record does not support
appellant’s argument.
When a district court departs from a presumptive sentence, it “must disclose in
writing or on the record the particular substantial and compelling circumstances that make
the departure more appropriate th an the presumptive sentence.” Rourke, 773 N.W.2d at
920 (quotation omitted). Here, the district c ourt expressly identified the jury’s finding of
the aggravating factor of the victim’s particular vulnerability as its reason to depart at the
sentencing hearing and in its sentencing orde r and report. The court also addressed the
serious nature of appellant’s offense at the sentencing hearing, stating, “It’s
incomprehensible to me that a woman who is dying, in your words, terminally ill . . . is
someone who deserves being struck in the head.” The district court adequately explained
why the jury’s findings provided it a reason to depart.
B. Appellant did not receive ine ffective assistance of counsel.
Appellant asserts that he received ineffe ctive assistance of counsel because his
counsel did not introduce several audio and transcribed witness statements at trial. We are
not persuaded.
9
We review ineffective-assistance-of-counsel claims de novo. State v. Rhodes, 657
N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 668, 698, 104
S. Ct. 2052, 2070 (1984)). To prevail on such a claim, an appellant must “demonstrate that
(1) counsel’s performance fell be low an objective standard of reasonableness, and (2) a
reasonable probability exists that, but for his counsel’s unprofessional error, the outcome
would have been different.” Leake v. State , 767 N.W.2d 5, 10 (Minn. 2009) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65). Both prongs need not be analyzed
if one is determinative. Id.
Here, appellant’s showing consists entirely of identifying, by name and date, five
statements that he claims his counsel should have presented at trial. Trial strategy and
tactical decisions on what ev idence to present lie within the discretion of counsel and
appellate courts do not review such decisions fo r competency. State v. Doppler , 590
N.W.2d 627, 633 (Minn. 1999). Accordingl y, appellant has no t met his burden to
demonstrate that his counsel’s performan ce was deficient. Because the first Strickland
prong is dispositive, appellant’s claim fails.
Affirmed.