State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1427

State of Minnesota,
Appellant,

vs.

Dominique Dreshaun Malone,
Respondent.

Filed February 26, 2018
Affirmed
Jesson, Judge

Dakota County District Court
File No. 19HA-CR-16-4569

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

James C. Backstrom, Dakota County Attorney, Torrie J. Schneider, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Respondent Dominique Dreshaun Malone was arrested and charged with domestic
assault after he placed his ex -girlfriend in a headlock during an argument about their
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relationship. He subsequently entered an Alford plea and requested a downward departure
at his sentencing hearing. With essentially only a probable-cause statement in the record
providing scant details of the incident, the district court found the crime was less serious
than typical and granted a durational departure motion over the state’s objection. The state
appeals and argues this was an abuse of discretion. We affirm.
FACTS
In December 2016, law enforcement responded to a reported domestic assault
incident at the home of respondent Dominique Dreshaun Malone’s ex-girlfriend, D.M. The
details of the incident primarily come from a short, half-page probable cause statement.
This statement explained that , when law enforcement arrived at the scene, they noticed
Malone’s ex-girlfriend had red marks on her neck. They spoke with her, and s he stated
Malone was the father of her children and that he stayed over the previous night in order
to take their children to school in the morning. The following morning, Malone entered
her bedroom to discuss their relationship, but she told him that she did not want to talk. In
response, Malone grab bed her and put her in a headlock, making it difficult for D.M. to
breathe and preventing her from screaming. D.M. stated that she believed Malone was
going to kill her. During the struggle, Malone’s body hit a closet door with enough force
to unhinge it and have it fall to the floor. A neighbor heard the commotion and called
9-1-1. D.M. also sent a text message to that neighbor during the incident, stating that she
believed Malone was going to kill her and asked the neighbor to call 9-1-1. Police arrested
Malone and charged him with domestic assault by strangulation under Minnesota Statutes
section 609.2247, subdivision 2 (2016).
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For purposes of a pre -trial evaluation, a probation officer spoke with D.M. She
explained that Malone was her ex-boyfriend and that the relationship ended almost a year
prior to this incident . They have three children together, and all of them were at home
during the altercation. She told the investigating agent that during the struggle, Malone
stated, “I don’t care i f I live anymore. I don’t care if I go to jail. I’m not stopping. You
don’t love me anymore.” In her opinion, Malone was under the influence of chemicals
during the incident. She also mentioned a previous incident where Malone was charged
with domestic assault after he grabbed her in front of their children and she sustained marks
on her body.
Malone filed a petition to plead guilty in April 2017.1 At the plea hearing, Malone
clarified that he was entering an Alford plea, and the court accepted the plea. The district
court ordered a pre sentence investigation and Malone was interviewed as part of that
investigation. Malone provided his version of events, stating that he slept over at his ex-
girlfriend’s house and that she gave him mixed messages regarding their relationship. He
admitted that he went into her room to talk to her and that he tried to hold her and express
his love for her. He denied any assaultive behavior , stated that D.M. completely
misrepresented what occurred, and that while she was subsequently apologetic, she refused
to recant her story. Malone explained that he had problems with alcohol, marijuana, and

1 Just prior to Malone filing a petition to enter a guilty plea, the state sought to amend the
complaint with an additional charge: domestic assault – causing fear of immediate bodily
harm or death pursuant to Minnesota St atutes section 609.2242, subdivision 1(1) (2016).
However, before any action could be taken on that proposed amended complaint, Malone
pleaded guilty to domestic assault strangulation.
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Percocet in the past. The presentence investigation report stated that Malone’s support
system with his mother, his job, and his parenting, were all areas of strength. The
presentence investigation report recommended a stay of imposition and that Malone be
placed on probation for zero to three years. The presumptive sentence was 15 months,
stayed.
In July 2017, a sentencing hearing was held. The state argued that the presentence
investigation report recommendations should be followed.2 Malone argued for a durational
departure and to be sentenced for a gross misdemeanor instead of a felony as allowed under
Minnesota Statutes section 609.13, subdivision 1(1) . He contended that his offense was
less serious than the typical offense, pointing out that he maintained his innocence, and that
even if some altercation happened, all the evidence pointed to it being very minor. Malone
argued that the victim’s side of the story was very suspicious , as s he did not cooperate
completely with police, she did not let law enforcement photograph her, and there are some
parts of her comments to law enforcement that lacked supporting evidence in the record—
such as the door being broken. Malone pointed out that his relationship with his ex-
girlfriend was eight-years long and there was little indication the relationship had a violent
aspect.3 Malone personally spoke at the sentencing hearing, took full responsibility for the

2 The district court’s departure report stated that the state did no t object to t he departure,
however this is not supported by the record. The state did in fact object and argued against
Malone’s motion at the sentencing hearing.
3 Malone had a prior disorderly conduct conviction in an incident involving his ex-
girlfriend.
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incident occurring, but denied it being abusive or as D.M. portrayed it. He explained that
he is not an abusive person.
The district court granted Malone’s motion to sentence the crim e as a gross
misdemeanor. The court sentenced Malone to one year, but stayed the execution of the
sentence for two years. The court acknowledged that it reviewed the presentence
investigation report and examined the complaint in detail. The court made a finding that
“this crime is less onerous than the usual felony domestic assault by strangulation.” The
court emphasized that details in the record were scarce regarding the struggle, specifically
to what degree, if any, Malone’s hands were on his ex-girlfriend’s neck. The court
explained:
[The record] didn’t have a lot of detail on specifically how the
airway was impeded, except for that she had difficulty
breathing and could not scream because it was hard to breathe.
It talked about a headlock, but it didn’t necessarily talk about
how Mr. Malone ’s hands were on her neck; although, the
officers did observe red marks around her neck, but there’s not
a lot of specifics as to where those marks were and to what
extent, if they were on both sides of the neck, or one side of the
neck. Which, to the Court, makes a difference in whether the
crime was less onerous than usual as to the information that ’s
in the complaint, since we have no other victim impact
information outside of what was delivered at the bail argument.
The district court also noted that Malone had successfully completed probation for a
previous misdemeanor, and it stated this was “another thing that the Court looks at as well.”
Lastly, the court found that Malone was remorseful and expre ssed responsibility to some
extent, but noted that “the Court doesn’t need to find those types of factors to warrant a
departure.”
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In the district court’s departure report, the reasons for departure were stated as:
crime less onerous than usual ; s hows r emorse/accepts responsibility ; and a menable to
treatment. The state appeals.
D E C I S I O N
The state contends that the district court erred by granting the durational departure.
It argues that the district court’s decision was erroneous because (1) there were insufficient
facts in the record to support the district court’s finding that the offense was less serious
than typical and (2) the district court improperly relied on Malone’s remorse,
responsibility, and amenability to treatment. The second issue only needs to be reached if
the district court’s finding that the offense was less serious than typical was i n error ,
because, even if a district court relied on improper factors, this court may still affirm on
the less-serious-than-typical reasoning. See State v. Rund, 896 N.W.2d 527, 532-33 (Minn.
2017) (stating that when the district court gives improper or inadequate reasons for a
downward departure, the appellate court may independently review the record to determine
if there are alternate gr ounds to support it). We therefore address the less -serious-than-
typical issue first.
The state argues that the district court abused its discretion when it granted Malone’s
motion for a downwar d-durational departure on grounds that the crime was less serious
than the typical felony -domestic-assault-by-strangulation case. This court will reverse
sentencing decisions only for an abuse of discretion. State v. Leja, 684 N.W.2d 442, 448
(Minn. 2004). An abuse of discretion occurs when the district court’s reasons for departure
are “improper or inadequate.” Rund, 896 N.W.2d at 532. And “as long as the record shows
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the sentencing court carefully evaluated all the testimony and information presented before
making a determination,” this court will not interf ere with the district court’s decision.
State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (internal quotation omitted).
The district court’s reasoning here is supported by the record. The court framed its
justification for granting the downward departure based on the seriousness of the crime.
This was proper. See State v. Peter, 825 N.W.2d 126, 130 (Minn. App. 2012) (“Requests
for durational departures require the district court to consider whether the conduct involved
in the offense of conviction was significantly more or less serious than the typical conduct
for that crime.”), review denied (Minn. Feb. 27 2013). In making its decision, the district
court emphasized the scarcity of details in the record. The court noted that the record does
not make clear whether Malone’s hands ever touched D.M.’s neck . Nor does it describe
where the red marks were on Malone’s neck. The record supports this reasoning—the half-
page probable cause statement contains minimal details regarding the offense. The district
court carefully reviewed the record and determined that with the details it did know—that
an unclear struggle occurred , Malone placed the victim in a headlock, no injuries were
recorded, and the victim was able to text a neighbor in the midst of the incident—the crime
was less serious than the typical felony-domestic-assault-by-strangulation case. This was
not an abuse of discretion.
The state argues that relying on the lack of detail in determining the crime was less
serious than typical is an abuse of discretion as it “essentially made a finding from silence.”
Or in other words, the state argues the district court improperly inferred the crime was less
serious than typical based on a lack of detailed information. But the state does not cite to
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any legal authorities to establish this was improper. Nor does the state explain how the
district court abused its discretion by only relying on the minimal fa cts it had, while
emphasizing the facts it did not have. This court’s role is both deferential and limited when
reviewing sentencing decisions. In Williams v. State, the Minnesota Supreme Court stated
that the district court must state its reasons suppor ting the departure, the reviewing court
must examine the record to determine if the reasons justify the departure, and if justified,
then the departure will be allowed. 361 N.W.2d 840, 844 (Minn. 1985). Here the district
court stated its reason that the crime was less serious than typical, that reason is supported
by the record, and the reason justifies the departure. Both parties agree that there is little
caselaw informing courts of what is typical in assault-by-strangulation cases.4 And there
is nothing on review that suggests the district court abused its discretion in its finding.
And we observe there is some responsibility on the part of the state for the lack of
details in the record. The state did not object to the Alford plea, and it declined to ask any

4 Malone cites to a series of cases involving assault -by-strangulation charges where there
were circumstances that were more violent and concerning . See, e.g., State v. Johnson ,
867 N.W.2d 210, 213 (Minn. App. 2015) (victim was strangled to the point it affected her
vision), review denied (Minn. Sept. 29, 2015); State v. Simmons, No. A07-0893, 2008 WL
3288141, at *1 (Minn. App. Aug. 12, 2008) (victim was spitting, coughing, and vomiting
after she was strangled ), review denied (Minn. Oct. 21, 2008) ; State v. Benson ,
No. A06-2439, 2008 WL 1799294, at *1 (Minn. App. Apr. 22, 2008) (victim was strangled
to the point she could not speak), review denied (Minn. June 25, 2008). However, none of
those cases included sentencing as an issue on appeal and are unpersuasive. See, e.g.,
Johnson, 867 N.W.2d 210 (addressing whether the district court must make an express
finding that there is a strong probability the defendant would be found guilty in a Norgaard
plea); Benson, 2008 WL 1799294, at *6 (addressing whether the district court abused its
discretion by admitting past domestic abuse evidence and by convicting him of a lesser -
included offense) ; Simmons, 2008 WL 3288141, at *1 (addressing whether the district
court abused its dis cretion by admitting certain evidence and if there was prosecutorial
misconduct).
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additional factual questions at the plea hearing. It is somewhat disingenuous to now point
to the lack of details as a bar to the determination that, in light of the record in front of the
district court, the crime was less serious than typical.
Because the district court did not abuse its discretion in determining the crime was
less serious than typical, there are proper grounds to support its decision to grant the motion
for a downward departure. Therefore, we do not reach the state’s argument that the district
court improperly relied on Malone’s remorse, responsibility, and amenability to treatment.
See Rund, 896 N.W.2d at 532-33.
Affirmed.