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This opinion will be unpublished and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
A17-0847

State of Minnesota,
Respondent,

vs.

Bryan Blocker,
Appellant.

Filed September 5, 2017
Affirmed
Florey, Judge

Dakota County District Court
File No. 19HA-CR-14-827

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

James C. Backstrom, Dakota County Attorney, Heather Pi penhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presidi ng Judge; Rodenberg, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his sentence for kidnappi ng, arguing that the district court erred
by using an incorrect crimin al-history score and abused its discretion by imposing a
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statutory-maximum 480-month sentence that was not supported by severe aggravating
factors. We affirm.
FACTS
Appellant Bryan Blocker was convicted of first-, second-, and third-degree assault,
kidnapping, and domestic assault by strangulation involving the victim H.B. He was also
convicted of second-degree assault of M.G., who intervened to help H.B. The facts of this
brutal assault and kidnapping are set fo rth in this court’s earlier opinion, State v. Blocker,
No. A15-1607, 2016 WL 7188122 (Minn. App. Dec. 12, 2016), review denied (Minn. Feb.
22, 2107).
Because the state sought an upward du rational departure from the presumptive
sentence, a separate sentencing proceeding was held following the jury ’s guilty verdicts.
The jury considered nine questions, answeri ng eight of the questions affirmatively.
Appellant had a criminal-history score of two from prior felony convictions.
The district court concluded that the se cond- and third-degree assault convictions
involving H.B. were lesser-included charges and did not enter judgment of convictions on
those charges. The district court sentenced appellant in the followi ng order: (1) the first-
degree assault against H.B.; (2) second-degree assault against M.G.; (3) kidnapping of H.B.;
and (4) domestic assault by stra ngulation of H.B. The cour t added two criminal-history
points for the first-degree assault and one for the second-degree assault, resulting in five
criminal-history points for the kidnapping sentence. Rely ing on the sentencing jury’s
findings, the court concluded that the facts of the case constituted “particular cruelty and
they are severe and extreme and beyond what the court has ever seen in a domestic assault.
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They’re well beyond what is typical for this type of offens e.” Based on this, the district
court imposed a 480-month sentence, the statutory maximum, for the kidnapping
conviction. Using a five-point criminal-history score, appellant’s presumptive sentence was
146 months.
In his direct appeal, appellant challenge d the sufficiency of the evidence supporting
the kidnapping conviction, as well as the sufficiency of the evidence supporting the eight
aggravating sentencing facts, the calculati on of his criminal-his tory score, and the
imposition of the statutory maximu m for the kidnapping conviction. Blocker, 2016 WL
7188122, at *1. Appellant argued that there wa s insufficient evidence to show that H.B.
suffered great bodily harm during the kidna pping, because the great bodily harm had
occurred before he kidnapped her.
1 Id. at *3. This court concluded that a jury could
reasonably have found that appellant’s restrain t of H.B. while he assaulted her outside the
truck constituted kidnapping. Id. at *3-4. Appellant also asserted that the evidence did not
demonstrate that great bodily harm occurred while he held H.B. captive in the truck, but this
court also concluded that a jury could reasonably find that great bodily harm occurred during
the kidnapping in the truck. Id. at *4.
This court also ruled that the district court had improperly calculated appellant’s
criminal-history score for pu rposes of the kidnapping sent ence because the Minnesota
Sentencing Guidelines do not permit an increase in a criminal-history score when multiple
convictions arise from a single course of c onduct and one of the convictions is for

1 If great bodily harm occurs during a kidna pping, the statutory maximum sentence is 40
years, rather than 20 years. Minn. Stat. § 609.25, subd. 2(2) (2012).
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kidnapping. Id. at *7. This court remanded to the district court to reduce appellant’s
criminal-history score from five to three for the kidnapping sentence. Id.
Finally, appellant challenged the distri ct court’s imposition of the statutory-
maximum sentence of 480 months . This court acknowledged that an upward durational
departure of greater than double the pres umptive sentence must be based on “severe
aggravating factors.” Id. This court noted that the de parture had been 2.74 times the
presumptive sentence with the improper criminal-history score, and it would be 3.28 times
the presumptive sentence with the proper criminal-history score. Id. Without holding that
the imposed sentence was improper, this court or dered the district court “[i]n light of our
remand for a redetermination of [appellant’s] cr iminal-history score . . . to reconsider
[appellant’s] sentence for his kidnapping conviction.” Id. at *8.
On remand, the district court vacated the prior sentence, applied the correct criminal-
history score of three, and reviewed the jury -found aggravating factors. Stating that the
situation “was far beyond anything the court had seen in the past,” the district court
determined that “[t]he jury’s findings on the aggravating facts clearly support a finding of
severe aggravating circumstances and severe aggravating facts to justify greater . . . than a
double upward departure.” The district c ourt resentenced appellant to 480 months’
imprisonment. In addition to challenging the sentence in this appeal, appellant alleges that
his criminal-history score for purposes of the kidnapping conviction should be two.

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D E C I S I O N
I.
Appellant argues that the district cour t abused its discreti on in calculating his
criminal-history score, which he asserts should be two, not three. The state has the burden
of establishing a defendant’s criminal-history score. See State v. Maley, 714 N.W.2d 708,
711 (Minn. App. 2006) (discussing the state’s burden of proof to justify consideration of a
defendant’s out-of-state conviction). “[M]ultip le offenses are sentenced in the order in
which they occurred.” State v. Williams , 771 N.W.2d 514, 522 (Minn. 2009) (quotation
omitted); Minn. Sent. Guidelines 2.B.1(e) (S upp. 2013). If a senten cing dispute involves
interpretation of a statute and the sentencing gu idelines, it raises a que stion of law subject
to de novo review. Williams, 771 N.W.2d at 520. Here, the issue is a factual matter: the
district court had to determine which offense oc curred first in time. “ [I]t is the [district]
court’s role to resolve any factual dispute bearing on the defendant’s criminal history score.”
State v. Campa, 390 N.W.2d 333, 336 (Minn. App. 1986) (quotation omitted), review denied
(Minn. Aug. 27, 1986); see also State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996) (stating
that judicial findings of fact are subject to review for clear error), review denied (Minn. Nov.
20, 1996).
The district court sentenced appellant in th e following order: (1) first-degree assault
against H.B.; (2), second-degre e assault against M.G.; and (3) kidnapping of H.B. On
resentencing after remand, the district court sentenced in the same order. According to a
description of the incident, appellant arrive d at the location where H.B. was and hugged
H.B., who rebuffed him. Blocker, 2016 W.L. 7188122, at *1. M.G. attempted to intervene,
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but appellant struck H.B. on the head with a baton, leaving her with a ringing in her ears, a
warm liquid running down her face, and temporary loss of vision. Id. Appellant struck
H.B. repeatedly while she wa s on the ground, and then stru ck M.G. with the baton. Id.
After this, appellant dragged H. B. by her hair to his truck and imprisoned her in the truck
for the next six hours, beating her, stra ngling her, and steppi ng on her neck. Id. at *1-5.
The district court’s determination of the orde r in which the offenses occurred is supported
by clear and convincing evidence.
Appellant argues that this court’s earlie r opinion established that appellant kidnapped
H.B. when he initially arrived on the scene and restrained her and, therefore, the kidnapping
occurred before the assault. Appellant challenged his conv iction by alleging that great
bodily harm occurred before he kidnapped H.B. so he coul d not be given an enhanced
penalty because the harm did not occur during the kidnapping; he argued in the alternative
that no great bodily harm occurred after he restrained H.B. in the truck, and he could not be
given an enhanced sentence for that reason. This cour t rejected both contentions,
concluding that a jury “could reasonably find beyond a reasonable doubt that his kidnapping
of H.B. occurred when he restrained her agains t her will before she entered the truck” and
that a jury could “reasonably conclude that H.B. suffered great bodily harm during the
kidnapping in the truck.” Id. at *3-4. This court did not conclusively determine that the
kidnapping with great bodily harm occurred in just one location. Moreover, the offense of
kidnapping continued until H.B. was released. Kidnapping is defined as the confinement
or removal of a person from one place to anot her without consent. Minn. Stat. § 609.25,
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Subd. 1 (2012). Appellant removed H.B. and confined her until he left her at the hospital,
and acts of great bodily harm occurred during this period of time.
The district court, which heard the eviden ce and observed the witnesses, found that
the offenses occurred in the order in which it sentenced the appellant. “Findings of fact are
clearly erroneous if, on the entire evidence, [an appellate court is] left with the definite and
firm conviction that a mistake occurred.” State v. Diede, 795 N.W.2d 836, 846-47 (Minn.
2011). The district court’s findings are not clearly erroneous and, therefore, its
determination of appellant’s cr iminal-history score was not an abuse of discretion. We
therefore affirm the district court’s calculation of appellant’s criminal-history score.
II.
Appellant argues that the district court ab used its discretion by imposing the statutory
maximum sentence, which represented more th an a double-durational departure from the
presumptive sentence, arguing that (1) the district court relied on facts not found by the jury;
(2) the aggravating circumstances were not severe; and (3) the sentence was
disproportionate when compared to similar offenses.
Guidelines sentences are presumed to be appropriate, and departures should be made
“only when substantial and compelling circumst ances can be identified and articulated.”
Minn. Sent. Guidelines 1.A. (2014). “[T]he question of whether the district court’s reason
for the departure is ‘proper’ is treated as a legal issue.” Dillon v. State, 781 N.W.2d 588,
595 (Minn. App. 2010), review denied (Minn. July 20, 2010).
This court reviews 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 legally
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permissible and factually supported in the record, the departure
will be affirmed. But if the district court’s reasons for
departure are improper or inadequate, the departure will be
reversed.

State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009) (quotation and citations omitted).
The upper limit for a sentencing departur e is the statutory-maximum sentence.
Dillon, 781 N.W.2d at 596. This court has “generally deferred entirely to the district court’s
judgment on the proper length of departures that result in sentences of up to double the
presumptive term.” Id. But a sentence of greater than double the presumptive sentence
must be supported by severe aggravating circumstances. Id.
In his first appeal, appellant challenged the sentencing jury’s factfinding, arguing
that the evidence was either insufficient, overlapped with elements of the charged offenses,
or did not provide a basis for aggravating his sentence. Blocker, 2016 WL 7188122, at *5-
6. This court rejected appellant’s arguments, concluding that the ev idence to support the
aggravating facts was sufficient and any a ggravating factor that makes the offense
significantly more serious than the typical offense can be used, even if it relates to another
offense committed in the same course of conduct. Id. This court remanded to the district
court to apply the proper criminal-history scor e, and to reconsider appellant’s aggravated
sentence for kidnapping. Id. at *8. But this court did not rule that imposition of the
statutory maximum was improper.
Appellant argues that the district court re lied on facts not admitted by the appellant
or found by the sentencing ju ry. The district court addre ssed all eight aggravating facts
found by the jury. The district court stated that “the horrifi c nature of this assault was
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shocking and shocking to the court who has seen domestic assaults on a regular basis in my
practice of law and being a judge. This was far beyond anything the court had seen in the
past.” The court also noted that H.B. testif ied that she had been assaulted for years and
suffered multiple broken bones, strangula tions, and “constant intimidation and
degradation.” These are not facts found by the sentencing jury or admitted to by appellant.
But in sentencing appellant, the district cour t stated that “[t]he jury’s findings on the
aggravating facts clearly support a finding of severe aggravating circumstances and severe
aggravating facts to justify grea ter than . . . double upward departure.” The district court
also adopted all the statements the court made at the original sentenci ng. At the original
sentencing hearing, the court said, “The re are severe, substantial and compelling
aggravating factors in this case, and the court finds that in particular with the kidnapping,
that the factors found by the jury . . . constitu te particular cruelty. And those factors are
severe. They are beyond anything this court has ever seen in a domestic assault.”
A sentencing jury must find facts beyond a reasonable doubt that provide substantial
and compelling reasons for a court to impose an aggravated sentence. State v. Rourke, 773
N.W.2d 913, 919 (Minn. 2009). But “the district court must explain why the circumstances
or additional facts found by the jurors in a Blakely trial provide the district court a substantial
and compelling reason to impose a sentence outside the range on the grid.” Id. at 920. The
district court explained that th e additional facts found by the sentencing jury showed that
appellant acted with particular cruelty toward H.B. The supreme court concluded in Rourke
“that the particular cruelty aggravating factor is a reason that explains why the additional
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facts found by the jury provid e the district court a substantial and compelling basis for
imposition of a sentence outside the range on the grid.” Id.
The district court acknowledged other ev idence presented at trial that it found
differentiated this case from similar assault o ffenses. But at the sentencing hearing, the
court cited the jury-found facts to support an upward departure. And, ultimately, an upward
departure is permissible when the facts of a particular offense differ markedly from similar
offenses. The district court’s statements that this offense was “shocking” and “beyond
anything the court had seen in the past” reflect this standard.
Appellant argues that the factors were not severe enough and no t similar to those
found in other cases that supported a greater than double departure. “A greater than double
departure is warranted only in the rare case where severe aggravating circumstances exist.”
State v. Ayala-Leyva, 848 N.W.2d 546, 558 (Minn. App. 2014) (quotation omitted), review
denied (Minn. Aug. 11, 2015). “Although the supreme court acknowledged early on . . .
that there is no clear line that marks the boundary between ‘aggravating circumstances’
justifying a double departure an d ‘severe aggravating circumst ances’ justifying a greater
than double departure, the [appellate] court has not been greatly deferential to the district
court’s severity determinations.” Dillon, 781 N.W.2d at 596 (quotation and citation
omitted). An appellate cour t draws on its “broader, multiju risdictional perspective” to
conduct a “less deferential” review of a dist rict court’s decision to impose a sentence
representing more than a double upward departure. Id. at 598.
In Dillon, this court affirmed th e imposition of the statutory maximum for a first-
degree assault conviction, reciting the severe na ture of the aggravating factors, including
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permanent injuries, and the prolonged nature of the assault of a vulnerable victim. Id. at
601-02. This matter shares some of the same features as Dillon: a prolonged assault over a
period of hours, a victim vulnerable because of being held captive in appellant’s van,
differing types of assault, including beating and strangulation, and a certain degree of
taunting: Dillon asked his victim “how does that feel?” in between each blow, and appellant
made H.B. look for the baton he had beaten her with. Id. at 593. Dillon suggests that this
court can exercise its discretion in its review of the severely aggravated sentence and can
“find an abuse of discretion and reduce a sentence for uniformity’s sake when the departure
results in a term that is longer than sentences for similar or more serious crimes.” Id. at 598.
We see no abuse of discretion. The circ umstances of this kidnapping were brutal
and shocking far beyond those we have reviewed in other kidnapping matters. The district
court properly relied on severe aggravating f acts found by a sentencing jury and properly
concluded that appellant acted with particular cruelty.
Affirmed.