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This opinion will be unpublished and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
A18-0072

State of Minnesota,
Appellant,

vs.

Tatum Jacob Hermann,
Respondent.

Filed September 10, 2018
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-17-14636

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

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

Considered and decided by Hooten, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Tatum Hermann responded to the online posting of a purportedly 18 -year-old
female prostitute to arrange for a sexual encounter, and he asked the female (actually a
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police decoy) her age and learned that she was only 15. He then asked about her appearance
and bra size. An hour later, Hermann sent a message to the professedly 15-year-old girl to
schedule a sexual encounter with her, and he drove to the address she gave him. Hermann
pleaded guilty to hiring or offering or agreeing to hire for sex a person whom he reasonably
believed was under age 16 . The district court departed downward durationally from the
presumptive sentence, reasoning that Hermann committed the offense in an atypical
manner because he had not initially set out specifically seeking a child for sex. Because
ascertaining a child’s age after , rather than before , initially contacting an ostensibly 18-
year-old prostitute to arrange for a sex encounter is not a circumstance that made the
offense significantly less serious, it is not a substantial and compelling reason to depart
from the presumptive sentence. We therefore reverse and remand for resentencing.
FACTS
In April 2017, police officers working a sting operation in Maple Grove posted an
online advertisement posing as a prostitute named Rayann. The post ended, “Poster’s Age:
18.” Thirty-nine-year-old Tatum Hermann sent a text message responding to the post and
exchanged messages with “Rayann.” After several messages during which the two
discussed sex acts and price and Rayann asked Hermann’s age , Hermann asked Rayann
her age, and Rayann responded, “im 15 I hope that’s ok casue I don’t want any truble if
you come see me.” Hermann immediately replied, “It’s fine” and asked to learn more about
her. They exchanged more messages about Rayann’s physical appearance, including her
bra size.
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An hour after Hermann asked for Rayann’s age and learned that he was conversing
with a 15-year-old, he sent text messages asking when she could be available and where
he should go for a sex encounter with her. Rayann directed Hermann to a Walmart parking
lot, and he went there, sending Rayann a text message announcing he had arrived. Rayann
then gave Hermann an apartment address . Hermann urged her to meet him at her door
naked. He went to the apartment carrying a box of condoms and the agreed-upon $100 in
cash. Police greeted him.
The state charged Hermann with hiring or offering or agreeing to hire a person
whom he reasonably believed was under age 16 for sex, violating Minnesota Statutes ,
section 609.324, subdivision 1(b)(3) (2016). Hermann pleaded guilty. He then moved the
district court to depart downward from his presumptive 18 -month stayed prison sentence
“based upon the fact that his conduct was less serious than that typically involved in the
commission of this crime.” Over the state’s objection, the district court granted the motion,
reasoning as follows:
[T]his is less serious than the typically charged crime of this
nature. I do think it is relevant that you weren’t going out
specifically looking for an undera ge individual to engage in
this.
. . . .
I would also note that this was a sting operation and there was
no minor child that was actually at risk in this case . . . .
. . . .
As I said, I think that this case is different because you weren’t
seeking out an individual who was underage, and for that
reason I am departing.
The state appeals.

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D E C I S I O N
The state contests the district court’s downward departure from Hermann’s
presumptive, 18 -month stayed prison sentence —a departure that reduces Herman n’s
felony conviction to a gross -misdemeanor. A district court must impose the presumptive
sentence framed by the sentencing guidelines unless “ substantial” and “compelling”
circumstances support departing from that sentence. Minn. Sent. Guidelines, II.D.1 (2016).
Qualifying departure circumstances are those that make the offense significantly less
serious than the usual offense in that they “tend to excuse or mitigate the offender’s
culpability.” Id. at II.D.3.a.(5) (2016). A durational departure must rest on some significant
anomaly in the circumstances of t he offense itself and not on the defendant’s personal
characteristics. See State v. Solberg, 882 N.W.2d 618, 625 (Minn. 2016). Although w e
afford district courts great deference in sentencing, the district court has no discretion to
depart from a presumptive sentence for reasons that are either improper or inadequate. State
v. Rund, 896 N.W.2d 527, 532 (Minn. 2017). We agree with the state that the district court
abused its discretion by departing downward on the theory that Hermann was not initially
“seeking out an individual who was underage.”
We observe first that the record only faintly supports the district court’s factual
premise that Hermann was not “going out specifically looking for an underage” sex object.
It is true that the posting to which Hermann responded represented the prostitute’s age to
be “18.” But it is certain that Hermann either did not notice the posted age or he did not
accept it as true. We know this because, e arly during the initial text-message exchanges
about potential sex acts and the price for performing them , Hermann specifically asked
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Rayann her age. He would not have asked her age had he seen a nd trusted the age -18
representation. And when Rayann replied that she was only 15 and that she “hope[d] that’s
ok,” Hermann immediately responded, “It’s fine Tell me about u.” This early inquiry into
Rayann’s age and Hermann’s immediate, express approval and follow -up inquiries and
discussion about her appearance undercut the d istrict court’s assessment that he did not
begin his prostitute search seeking a juvenile.1
We think that, in fact, responding to a purportedly 18-year-old prostitute’s post and
inquiring early about her age, and immediately approving upon learning he was interacting
with a 15-year-old girl, establish Hermann’s quest for a youthful prostitute generally and a
child prostitute specifically. The district court construed this communication about
Rayann’s age instead as a change in events, telling Hermann, “[T]hrough the course of the
texts after you were kind of interested the presentation of facts changed and you didn’t act
accordingly and say, wait, no.” But the record does not suggest that the revelati on of
Rayann’s age can be fairly described as a course change, since Hermann never assumed
that Rayann was actually 18 despite the representation in her post . We have reviewed the

1 Our understanding of the actual communication is sketchy, pieced together from the
record. No transcription of the text exchange appears in the record on appeal, but the district
court and the parties discussed it, characterized it, and quoted portions of it in various
places in the record. The complaint also describes the text exchange and quotes from it,
and the district court expressly referenced the description of the text exchange described in
the complaint during its direct colloquy with Hermann during Hermann’s plea hearing. See
State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (“The record also contains a copy of the
complaint and defendant, by his plea of guilty, in effect judicially admitted the allegations
contained in the complaint.”). We have f ormed our understanding of the text-exchange
details based on the undisputed quotations, the undisputed characterizations, and the
criminal complaint.
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limited record and conclude that it cannot support the implication that Herm ann was
seeking an adult prostitute and only later faced an unanticipated change to a 15-year-old.
This observation frames how we measure the significance of the manner in which
Hermann learned that Rayann was 15. “A downward durational departure is justif ied only
if the defendant’s conduct was significantly less serious than that typically involved in the
commission of the offense.” Solberg, 882 N.W.2d at 624 (emphasis added and quotation
omitted). The offense as defined by statute is the hiring, or the offering, or the agreeing to
hire for sex a person reasonably believed to be younger than 16. Minn. Stat. § 609.324,
subd. 1(b)(3). The purportedly diminishing circumstance is only that Hermann inquired
about and learned Rayann’s age shortly after, rather than before, he responded to the post.
We cannot say that this component of Hermann’s behavior carries any meaningful,
mitigating significance in relation to the offense described by statute . The district court
concluded only that the cited circumstance ma de Hermann’s offense “less serious,” not
significantly less serious. And we can articulate no practically relevant difference in
seriousness between one offense in which an offender initially seeks a 15-year-old child as
his sex object and this offense in which the offender solicited a purportedly 18 -year-old
sex object but quickly inquired about age and immediately returned to the sexual topic
when he learned that he had found a 15 -year-old sex object. We believe that the district
court rightly did not describe any difference in seriousness as significant because we hold
that, as a matter of law, the circumstance identified did not make Hermann’s offense
significantly less serious.
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Our holding is bolstered by the timing of the circumstance in relation to t he timing
of the primary acts constituting the criminal behavior. Although it may be accurate to say
that Hermann began his solicitation when he initiated the first contact with Rayann, his
primary criminal behavior occurred an hour later, well after he ha d learned of Rayann’s
age. That is when he reinitiated contact with her believing she was 15 years old in order to
arrange to meet her for a paid sexual encounter. He then confirmed the agreement by
driving to the specified location to complete the money -for-sex transaction. So although
Hermann sent his first communication without expressly seeking a child, this cannot be
said of his later and more essential communication when he specifically arranged a meeting
with her for paid sex. Given the severity of the offense of contacting a presumably 15-year-
old girl to arrange for paid sex with her, Hermann’s culpability is diminished only slightly,
if at all, by the fact that he learned her age only after he first responded to the post.
Because the circumstance surrounding Hermann’s initial contact with Rayann is not
a circumstance that makes the offense significantly less serious, the district court did not
identify a substantial and compelling reason why the departure sentence is more
appropriate than the presumptive sentence. It therefore identified no legally proper basis to
depart. When a district court gives improper or inadequate reasons for a downward
departure, we may independently review the record to determine if alternative grounds
support a departure . Rund, 896 N.W.2d at 53 2–33. Hermann does not identify any
alternative ground, and we see none in the record. We must reverse.
We add that our result is consistent with our recently published opinion in State v.
Dentz, which holds, “When a person solicits a minor to engage in prostitution, in violation
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of Minn. Stat. § 609.324, subd. 1 (2016), the fact that the person did not set out specifically
seeking a minor is not a proper ground for a durational sentencing departure.” __ N.W.2d
__, __ No. A18-0468 slip op. at *1 (Minn. App. Aug. 27, 2018). Of course the district court
was not aware of our holding in Dentz. But we are bound to apply the holding here. See
State v. M.L.A ., 785 N.W.2d 763, 767 (Minn. App. 2010) (reiterating that this court “ is
bound by su preme court precedent and the published opinions of the court of appeals”).
Based on our analysis and, independently, based on the holding in Dentz, we reverse and
remand for resentencing.
Reversed and remanded.