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This opinion will be unpublished and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
A18-0933

State of Minnesota,
Respondent,

vs.

Omar Auquil Muhammad,
Appellant.

Filed June 3, 2019
Affirmed
Reilly, Judge

Washington County District Court
File No. 82-CR-17-2274

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from the judgment of conviction, appellant argues that (1) the
district court erred by denying his motion to suppress custodial, non-Mirandized statements

2
he made to a social worker; and (2) he is entitled to resentencing because the district court
improperly imposed an aggravated departure based on particular vulnerability and
particular cruelty. We affirm.
FACTS
On May 13, 2017, police investigated a report that appellant Omar Auquil
Muhammad assaulted C.M., who is a vulnerable adul t. After speaking with the police,
C.M. went to an urgent care facility where she told a doctor that “she had been beaten,
punched, and kicked repeatedly” by Muhammad over the past week while they had been
living together in C.M.’s apartment . Officers arrested Muhammad and he was charged
with misdemeanor domestic assault.
On May 22, Tina Gullickson, a social worker for Washington County Community
Services, was assigned to investigate the maltreatment of C.M. Gullickson is an adult -
protection investigator, which means that when a report is filed regarding the maltreatment
of a disabled person, she would complete “an assessment of the person and their disabilities
while looking into the allegation of maltreatment that is reported.” While investigating the
maltreatment, Gullickson may work with law enforcement “as needed,” and help the victim
connect with services and resources.
Gullickson spoke with C.M. twice, and an officer was pres ent at one of the
interviews. C.M. told Gullickson and the officer that Muhammad stayed with her in her
apartment for around two weeks. C.M. stated that Muhammad had sex with her after she
asked him to stop and kicked her when she did not comply. Following her interview with

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C.M., Gullickson spoke with Muhammad, who was in custody at the Washington County
Jail.
During the interview with Muhammad, Gullickson identified herself as a social
worker. She told Muhammad that she works alongside the police to advocate for
vulnerable adults. Gullickson further stated:
So when ther e’s a report and there’s an allegation against
someone, we always give them the opportunity to give their
side of the story, let us know what’s going on as far as they’re
concerned. So that’s why we’re here. Just hoping you’d talk
with us for a few minut es. You don’t have to. You know –
you know you can end the conversation whenever you want. .
. . If we need to, we can share information with law
enforcement. . . .[W]hen we’re done with the assessment, you
get notified of the findings in writing. And that just means the
result of the assessment is, whether maltreatment might have
occurred or not.

Gullickson asked Muhammad questions about whether any physical or sexual abuse had
taken place between him and C.M. Muhammad denied all allegations.
On June 2, Muhammad was charged with first-degree criminal sexual conduct, use
of force or coercion to accomplish sexual penetration and causing personal injury, in
violation of Minn. Stat. § 609.342, subd. 1(e) (2016).
On June 12, Gullickson sent Muhammad the o fficial-findings letter she had
mentioned during the interview. The letter stated that Washington County Community
Services determined that the allegations of physical and sexual abuse were substantiated.
The letter also informed Muhammad that these find ings may affect future employment
opportunities, and that if he does “not agree with the county lead investigative agency’s

4
determination, [he] may ask the county lead investigative agency to reconsider its
determination.”
Muhammad sent a letter to Gullick son on June 26, writing that he felt the
determination was inc orrect. The letter contained multiple incriminating statements by
Muhammad about the physical abuse allegations. Muhammad wrote that he would hit and
kick C.M. because she would often grab his face. He also stated that C.M. “would
aggressively spring up and grab [his] face and try to pull it toward her and . . . [he] would
punch her.”
During pretrial proceedings, Muhammad moved to suppress both his oral statements
to Gullickson and his written letter because Gullickson did not Mirandize him. The district
court denied Muhammad’s motion to suppress his oral statements, finding that although
Muhammad was in custody at the time of Gullickson’s interrogation, she was not acting as
a law-enforcement agent. The district court also denied Muhammad’s motion to suppress
his written statements, finding that Gullickson’s letter was a routine administrative process
and not an interrogation for Miranda purposes.
A jury found Muhammad guilty. Following a Blakely1 trial, the jury found the
existence of three aggravating factors: particular vulnerability, particular cruelty, and

1 When departing from the presumptive sentence, the district court “must afford the
accused an opportunity to have a jury trial on the additional facts that support the departure
and to have the facts proved beyond a reasonable doubt.” Minn. Sent. Guidelines 2.D; see
also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (stating that
any fact, other than a prior conviction, that supports a departure above the prescribed
statutory maximum “must be submitted to a jury, and proved beyond a reasonable doubt”
(quotation omitted)).

5
multiple penetrations. The district court relied on the jury’s Blakely findings and sentenced
Muhammad to 312 months in prison, an upward durational departure.
This appeal follows.
D E C I S I O N
I. The district court did not err in denying appellant’s motion to suppress.
Suspects who are subjected to a custodial interrogation must be given a Miranda
warning, otherwise any statements made to the law-enforcement officer must be
suppressed. Miranda v. Arizona , 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966) .
Custodial interrogation is “questioning initiated by law-enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Thompson v. Keohane , 516 U.S. 99, 107, 116 S. Ct. 457, 46 3 (1995)
(citing Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). Interrogation is not only express
questioning, but also “any words or actions on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating response from the suspect.”
Rhode Island v. Innis , 446 U.S. 291, 301 , 100 S. Ct. 1682, 1689 -90 (1980). This court
reviews the district court’s factual findings relating to the circumstances of the
interrogation for clear error, but independently reviews the district court’s determinations
for the need for a Miranda warning. State v. Heinonen , 909 N.W.2d 584, 590 (Minn.
2018); see also State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).
Muhammad argues that the district court erred by denying his motion to suppress
and admitting his two statements: (1) his oral statement to G ullickson, and (2) his letter
written to Gullickson. Muhammad contends that because Gullickson acted on behalf of

6
law enforcement agents, failed to give him a Miranda warning, and conducted a custodial
interrogation, his oral statements must be suppressed . He also argues that his written
statements must be suppressed because Gullickson’s official-findings letter constituted an
interrogation.
a. Gullickson was not acting on behalf of law-enforcement agents.
The admissibility of Muhammad’s non -Mirandized statements to Gullickson
depends on whether Muhammad was subjected to a custodial interrogation by a law-
enforcement officer. The district court found and the parties agree that Muhammad was
interrogated by Gullickson while in custody. This finding is supported by the record as
Muhammad was in jail at the time of the interview and Gullickson questioned him about
whether he had physically or sexually assaulted C.M. See State v. Tibiatowski, 590 N.W.2d
305, 3 09 (Minn. 1999) (noting an in terrogation takes place when the questioning is
“reasonably likely to elicit an incriminating response” (quotation omitted)). The question
before this court is whether Gullickson acted as a law-enforcement officer when she spoke
with Muhammad . See Mirand a, 384 U.S. at 444 , 86 S. Ct. at 1612 (holding that the
procedural safeguards against self -incrimination are necessary when a law-enforcement
officer interrogates a suspect in custody).
A Miranda warning “must be given by all those who use the power of the state to
elicit an incriminating response from a suspect, regardless whether they are law
enforcement personnel.” Tibiatowski, 590 N.W.2d at 310 (citing Estelle v. Smith, 451 U.S.
454, 467, 101 S. Ct. 1866 , 1875 (1981)). Muhammad argues that Gullickson was acting
on behalf of law-enforcement officer s and cites Estelle to support his argument that

7
Gullickson was required to Mirandize him. In Estelle, the S upreme Court found that a
court-designated psychiatrist who examined the defendant while he was in p rison should
have given a Miranda warning. Estelle, 451 U.S. at 469, 101 S. Ct. at 1876. But this case
is distinguishable as Gullickson was not ordered by the court or police to question
Muhammad. Instead, Gullickson was acting within her role as a social worker to review
the allegations made by C.M. as required by statute. See Minn. Stat. § 626.557, subd. 9b
(2018) (requiring investigative agency to complete investigate reports of maltreatment of
vulnerable adults).
Moreover, the Minnesota Supreme Court has found that a human -relations officer,
who questioned a juvenile while he was at a detention center, was not acting as a law-
enforcement officer . Tibiatowski, 590 N.W.2d at 311. The human -relations officer’ s
relationship to the juvenile was instead “limited to matters relating to the legal care,
custody, and control of the children she worked with and did not include either conditions
of probation or law enforcement duties.” Id. (quotations omitted). Gullickson’s role is
also limited. She began her interview with Muhammad by stating, “The reason we’re here
is we got a report of some issues regarding a vulnerable adult named C.M., okay? And so
we’re not the police, but we’re social workers that kind of work alon gside to advocate for
the person with disabilities.” While Gullickson may have shared information with police
officers, this does not undermine her principal duty that is tied to the welfare of C.M. rather
than investigating on behalf of law enforcement.
Because Gullickson was not acting as a law-enforcement officer or on behalf of law-
enforcement officers, she was not required to provide Muhammad with a Miranda warning.

8
The district court did not err by denying Muhammad’s motion to suppress his oral
statements.
b. Gullickson’s official-findings letter did not constitute an interrogation.
Even though we may end our analysis because Gullickson was not acting as a law-
enforcement officer , we will still address Muhammad’s argu ment that Gullickson’s
official-findings letter amounted to an interrogation.
This court considers the totality of the circumstances when determining whether a
law-enforcement officer’s questions are “reasonably likely to elicit an incriminating
response,” and thus constitute an interrogation. Heinonen, 909 N.W.2d at 589-90. Because
officers “cannot be held accountable for the unforeseeable results of their words or actions,
the definition of interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit an incriminating
response.” Innis, 446 U.S. at 302, 100 S. Ct. at 1690 (emphasis in original).
Here, nothing in Gullickson’s letter was seeking to elicit an incriminating response.
After reaching a final disposition regarding maltreatment allegations, social services must
notify various persons, including “the alleged perpetrator, if known.” Minn. Stat.
§ 626.557, subd. 9c(f) (2018). The letter informed Muhammad that Washington County
Community Services concluded that the allegations of abuse were substantiated; that this
finding may adversely affect Muhammad’s ability to become licensed or employe d in
certain fields; and informed Muhammad that he can seek reconsideration. The letter
requested no additional information from Muhammad. Muhammad argues that any
reasonable person who received this letter “would most certainly avail himself of the

9
opportunity to submit a written request for reconsideration.” However informing
Muhammad of his right to ask for reconsideration does not mean the letter was seeking to
elicit an incriminating response. Muhammad could have requested reconsideration without
including any additional statements.
Because Gullickson’s official-findings letter did not amount to an interrogation, the
district court did not err by denying Muhammad’s motion to suppress his written response.
II. The district court properly sentenced appellant to an upward durational
departure.

The Minnesota Sentencing Guidelines prescribe a range of sentences and the
sentencing court “must pronounce a sentence within the applicable range unless there exist
identifiable, substantial, and compelling circumstances that distinguish a case and
overcome the presumption in favor of the guidelines sentence.” State v. Soto, 855 N.W.2d
303, 308 (Minn. 2014) (quotation omitted); See Minn. Sent. Guidelines 2.D.1. (2016).
“Substantial and compelling circumstances are those demonstrating that the defendant’s
conduct in the offense of conviction was signifi cantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotation omitted). The district court has broad discretion to depart
and we review its decision for an abuse of discretion. State v. Edwards, 774 N.W.2d 596,
601 (Minn. 2009).
The guidelines provide a non -exclusive list of aggravating factors that may justify
a departure. Minn. Sent. Guidelines 2.D.3.b (2016). Before imposing an upward departure,
the district court “must submit to a jury the question of whether the State has proven beyond

10
a reasonable doubt the existence of additional facts . . . which support reasons for
departure.” State v. Rourke , 773 N.W.2d 913, 921 (Minn. 2009). Then, based on the
factual determinations made by the jury, 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 t he
grid.” Id. at 920. Here, the district court granted an upward durational departure because
of three aggravating factors: (1) the victim’s particular vulnerability; (2) the particular
cruelty inflicted; and (3) multiple penetrations of the victim. Muhammad argues that this
court must remand for resentencing because the jury’s findings are inadequate to support
particular vulnerability and particular cruelty, and the district court did not follow proper
procedure before imposing an upward departure.
a. The record supports the district court’s reliance on particular cruelty.
Particular cruelty “involves the gratuitous infliction of pain and cruelty of a kind not
usually associated with the commission of the offense in question.” Rourke, 773 N.W.2d
at 922 (quotation omitted) . Muhammad was charged with first -degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342, subd. 1(e) , for engaging in sexual
penetration with C.M. while using force or coercion and causing personal injury. For
Muhammad’s conduct to be particularly cruel, it must be “significantly more cruel than
conduct typically associated with the offense of conviction.” Dillon v. State, 781 N.W.2d
588, 600 (Minn. App. 2010), review denied (Minn. July 20, 2010).
The jury found, as reflected on the special verdict form, that Muhammad: inflicted
“more injury than necessary ”; caused “multiple bruises ”; punched C.M. more than once;

11
and kicked C.M. more than once. The district court relied on these findings and determined
that “the violence level used by Mr. Muhammad” constituted particular cruelty.
Muhammad argues that his conduct was not significantly more serious than the
conduct involved in a typical first -degree sexual assault. While some of Muhammad’s
actions may have been typical condu ct associated with his crime, the jury still found that
he inflicted “more injury than necessary.” See State v. Jeno , 352 N.W.2d 82, 85 (Minn.
App. 1984) (holding that “though some of [defendant’s] acts may not have differed in kind
from that of other rap ists’, other acts were sufficiently different in degree to justify a
departure upward”). The jury’s findings were adequate to support particular cruelty and
the district court did not err by relying upon this factor for the upward departure.
b. The record does not support the district court’s reliance on particular
vulnerability.

When the victim of an offense is “particularly vulnerable due to age . . . or reduced
physical or mental capacity, which was known or should have been known to the offender,”
that vulnerability may support an upward durational departure. Minn. Sent. Guidelines
2.D.2.b.(1). Here, to determine if circumstances existed to support particular vulnerability,
the district court provided the jury with a special verdict form that asked, in pertinent part:
[a.] Does [C.M.] legally qualify as a vulnerable adult?
“Vulnerable adult” is defined as a person 18 years of age or
older who possesses a physical or mental infirmity or other
physical, mental, or emotion al dysfunction that impairs the
individual’s ability to provide adequately for the individual’s
own care without assistance, including the provision of food,
shelter, clothing, health care, or supervision; and because of the
dysfunction or infirmity and the need for care or services, the
individual has an impaired ability to protect the individual’s
self from maltreatment.

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[b.] If your answer to the previous question is “Yes,” did the
defendant know or should he have known that [C.M.] was a
vulnerable adult?

The jury determined that C.M. did qualify as a vulnerable adult, but that Muhammad did
not know nor should he have known that she was a vulnerable adult.
The state argues that it is enough that the jury found that C.M. was developmentally
delayed and that Muhammad knew about it. Perhaps the facts would have established
particular vulnerability had the special verdict form not contained the direct question: “Did
the defendant know or should he have known that [C.M.] was a vulnerable adult.” Because
the jury specifically found that Muhammad did not know C.M. was a vulnerable adult, the
district court erred by finding that particular vulnerability existed and relying on this factor
when deciding to depart.
c. The district court sufficiently stated its reasons for departure and would
have imp osed the same sentence absent its reliance on particular
vulnerability.

When the 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 than the presumptive sentence.” Rourke, 773 N.W.2d at
920. The district court must explain why the additional facts found by the jury provide the
court with a substantial and compelling reason to depart and this is satisfied by applying a
recognized aggravating factor to the underlying facts. Id. If reasons for the departure are
stated on the record, this court then “examine[s] the record to determine if the reasons given
justify the departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

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Here, the district court stated on the record:
[T]he court finds that substantial and compelling
circumstances as found by the jury do exist to justify departure
from the sentencing guidelines in this case. Specifically, those
substantial and compelling circumstances are:

First, multiple penetrations and/or orifices. This is the sexual
acts themselves. Second – and in my opinion this is not double
counting – the particular cruelty. That is the violence level
used by Mr. Muhammad to accomplish the multiple
penetrations. They are separate and distinct. And then finally
the particular vulnerability of our victim, [C.M.].

The court cited the facts found by the jury and applied them in finding three aggravating
factors. The district court sufficiently explained why the circumstances found by the jurors
provided the substantial and compelling reasons to depart.
However, because the district court relied on a combination of proper and improper
aggravating factors, we must next determine if remanding this case to the district court for
resentencing is n ecessary. State v. Mohamed , 779 N.W.2d 93, 100 (Minn. App. 2010),
review denied (Minn. May 18, 2010). When deciding whether to affirm or remand, “we
must determine whether the district court would have imposed the same sentence absent
reliance upon the i mproper aggravating factor.” State v. Stanke , 764 N.W.2d 824, 828
(Minn. 2009) (citation omitted). “In doing so, we consider the weight given to the invalid
factor and whether any remaining factors found by the court independently justify the
departure.” Id. This court will affirm the district court if the record shows the district court
would have im posed the same sentence absent its reliance on the improper aggravating
factor. Mohamad, 779 N.W.2d at 100; see also Williams, 361 N.W.2d at 844 (stating “[i]f

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the reasons given are improper or inadequate, but there is sufficient evidence in the record
to justify departure, the departure will be affirmed”).
Here, the district court relied upon two proper aggravating factors – particular
cruelty and multiple penetrations – to justify the upward departure. These factors
independently support the upward departure. See State v. Vance, 765 N.W.2d 390, 395-96
(Minn. 2009) (stating that “when two out of three [aggravating] factors are valid, it is
reasonable to conclude that the district court would have imposed the same sentence absent
reliance on the [improper ] factor”). We are convinced that the district court would have
imposed the same sentence even without reliance on particular vulnerability given that the
remaining two aggravating factors justify the upward departure.
Affirmed.