State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0901

State of Minnesota,
Respondent,

vs.

Brandon Lee Boyum,
Appellant.

Filed March 4, 2019
Affirmed
Ross, Judge

Freeborn County District Court
File No. 24-CR-16-1520

Keith Ellison, Attorney General, St. Paul, Minnesota; and

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ross , Judge; and
Johnson, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Brandon Boyum undressed a sleeping 11-year-old girl, inserted his finger into her
vagina, and put her hand on his penis. Boyum pleaded guilty to one count of first-degree
criminal sexual conduct. The district court noted its concern about Boyum’s pedophilia,
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denied his motion for a downward dispositional departure, and sentenced him to the
presumptive 12- year prison term after learning that Boyum had collected more than a
thousand images of child pornography. Boyum appeals his sentence, but we affirm because
imposing the presumptive sentence was within the district court’s discretion.
FACTS
Brandon Boyum was at a friend’s house in Freeborn County after a night of
drinking. He entered a n 11-year-old sleeping girl’s bedroom and pulled her pants down.
Then he took pictures of her exposed buttocks and penetrated her vagina with his finger.
He grasped her hand and put it on his penis . The girl woke up and ran crying from the
room.
The state charged Boyum with first- and second-degree criminal sexual conduct and
interfering with privacy against a minor. Boyum agreed to plead guilty to first-degree
criminal sexual conduct in exchange for the state’s dropping the other charges.
Three experts assessed Boyum before his sentencing. Psychologist Charles Dawley
diagnosed him with pedophilia and recommended sex-offender treatment. Dawley opined
that, “should the Court decide to allow Mr. Boyum to remain in the community, such
treatment could be accomplished on an outpatient basis.” Therapists Marie Grace and
Katherine Farrington jointly submitted a report in which they saw Boyum’s conduct as
similarly consistent with pedophilia. They opined that Boyum fell in the low-to-moderate-
risk category “for being charged or convicted for another sexual offense” based on an
actuarial-risk-assessment tool. They recommended community -based treatment in a
probationary setting rather than prison, citing Boyum’s famil y support, acceptance of
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responsibility, “desire to gain insight into why he committed his offense,” and “low priority
level of risk.”
Boyum moved for a dispositional departure. He asserted that he was remorseful,
respectful in court and in jail, had a minimal criminal history, posed a low to moderate risk
to reoffend, was amenable to community-based treatment, and had community support.
At Boyum’s sentencing hearing, the state presented evidence indicating that
Boyum’s computer contained thousands of pornographic images, many of which were
“[h]ard core child pornography .” The sentencing judge announced, “I can either send the
Defendant to prison for a minimum of 12 years . . . or place him on probation with
community-based treatment. I have no middle ground. There was not a durational departure
motion filed here, so I have very diverse options.” The district court decided to impose a
sentence of 144 months in prison, which falls within the presumptive range. It denied
Boyum’s departure motion, explaining that, although it had initially supposed Boyum’s
crime was an isolated, drunken, “stupid act,” the “thousands of images of porn, a f air
number of them child pornography,” persuaded the court that it was instead “the act of a
pedophile” and “not a one-time incident.”
Boyum appeals his sentence.
D E C I S I O N
Boyum argues that the district court should have granted his motion for a downward
dispositional departure and stayed his sentence, which would have resulted in probation
and community -based treatment rather than prison. We afford the district court great
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discretion in sentencing, and we will reverse only if the sentence reflects a clear abuse of
that discretion. State v. Soto, 855 N.W.2d 303, 307–08 (Minn. 2014).
Minnesota strongly favors presumptive sentences. See id. at 308–09. The district
court must issue sentences within the assigned presumptive range unless substantial and
compelling circumstances exist to warrant a departure. Minn. Sent. Guidelines 2.D.1
(2016). Dispositional departures must rest on the defendant’s characteristics, like, for
example, his age, criminal record, remorse, motivation to change, cooperation, attitude in
court, and unamenability to incarceration. Soto, 855 N.W.2d at 309–310; State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982).
Boyum argues that the district court ignored these factors, ignored the therapists’
opinions, and based its decision on clearly erroneous facts and a flawed understanding of
pedophilia. The record belies the argument.
We are satisfied that the district court did not ignore the factors relevant to a
dispositional departure motion. The district court stated that it read all the material
presented to it more than once, including the presentence reports provided by the therapists
and the probation office. These documents detail all of the characteristics appropriate for
the court’s assessment, leading the district court to state on the record how difficult a
decision it faced as a result. The district court also received live testimony, and the
transcript demonstrates the court’s attentiveness to the arguments made on all the factors
offered to justify the departure. The record demonstrates that, far from ignoring the relevant
factors, the district court weighed them carefully.
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Boyum contends that the district court improperly ignored expert opinions that he
is suitable for community -based treatment in a probationary setting. But mere suitability
for community-based treatment does not satisfy the standard for a downward dispositional
departure. Dispositional departures may rest on the defendant’s characteristics that show
he is “particularly suitable for individualized treatment in a probationary setting.” State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (emphasis added) (quoting State v. Wright,
310 N.W.2d 461, 462 (Minn. 1981); see also Soto, 855 N.W .2d at 308–09 (emphasizing
the need for particular amenability to probation, not just amenability to probation, to
establish a substantial and compelling reason to depart). Equally fatal to Boyum’s
contention is the long- settled precept that the district court sitting as factfinder need not
accept the opinion of an y expert, even if the opinion is not contradicted. See Costello v.
Johnson, 121 N.W.2d 70, 76 (Minn. 1963). Our review of the record reveals that the district
court scrupulously considered the opinions of the evaluators and accepted many, but not
all, of their opinions. The district court did not find Boyum particularly amenable to
probation or particular ly amenable to individualized treatment in a probationary setting,
and Boyum cites nothing in the record that would compel either finding.
Boyum’s protest about the district court’s factual findings also does not require
reversal. Boyum complains that the district court had no basis on which to question whether
Boyum’s crime was a mere isolated incident. But the district court did not suggest that it
was basing its sentencing decision on the idea that Boyum had engaged in other molestation
acts. It implied instead that Boyum’s possession of child pornography revealed that his
conduct was not merely an anomalous, alcohol-induced act of indiscretion; it was instead
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a deliberate deed resulting from Boyum’s sexual fixation on children. This was an
appropriate consideration of Boyum’s characteristics in relation to his motion for a
dispositional departure.
We are similarly unpersuaded by Boyum’s contention that the district court should
have rejected the child-pornography evidence because the detective who testified about it
offered only “vague hearsay unsupported by any physical or electronic evidence in the
record.” Boyum maintains that the detective testified “[w]ithout providing any specific
numbers” and he quotes the detective as having said only that “[s]ome of it was child
pornography.” Boyum misrepresents the record. The testifying detective stated precisely
that “[t]here were 1,083 images” among the photographs on Boyum’s computer that were
“known to [the National Center for Missing and Exploited Children] as child
pornography,” based on victim- matching database technology. This testimony was not
vague. And we will not consider Boyum’s tardy contention that the testimony was
inadmissible hearsay, as he made no hearsay objection at the time, forfeiting the challenge.
See State v. Fields, 679 N.W.2d 341, 348 (Minn. 2004) (holding that a defendant who fails
to object on hearsay grounds forfeits an appellate challenge on the issue). The district court
did not clearly err by finding that Boyum’s computer contained evidence of extensive child
pornography or abuse its discretion by reasoning that this evidence bore on Boyum’s
attempt to establish a substantial and compelling reason to depart.
Affirmed.