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This opinion will be unpublished and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
A18-0985

State of Minnesota,
Respondent,

vs.

Lee Edward Smith, Jr.,
Appellant.

Filed July 1, 2019
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-20415

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

Michael O. Freeman, Hennepin Coun ty Attorney, Nicole Cornale, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Vil lalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg , Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his conviction of two counts of sex trafficking of an
individual under Minn. Stat. § 609.322, subd. 1a(4) (2016), appellant Lee Edward Smith Jr.

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argues that he was denied his constitutional right to confront a witness against him, that the
evidence is insufficient to prove one of the counts of conviction, that numerous sentencing
errors require resentencing, and that the evidence is insuffici ent to support an aggravated
sentence for particular vulnera bility of one of the victims. W e hold that appellant’s
confrontation rights were not vio lated and that the evidence is sufficient to sustain both
counts of the counts o f conviction. The district court erred b y imposing an aggravated
sentence without the required Blakely findings and by amending appellant’s sentence after
the district court no longer had jurisdiction. We therefore af firm the convictions, reverse
the district court’s sentencing departure, and remand for resentencing.
FACTS
After a jury trial, appellant was convicted of two of three cou nts of sex trafficking
of an individual under Minn. Stat. § 609.322, subd. 1a(4).
The Minneapolis Police Departme nt had received a tip concerning possible
prostitution from the relative of a 15-year-old girl. The reporter claimed that someone was
using a photo of the girl from her Facebook page on a backpage.com advertisement in the
“women looking for men dating se ction.” Police submitted a leg al demand to the
backpage.com law enforcement support team, which responded with data concerning the
ad. Sergeant Snyder identified the email address associated wi t h t h e a d a s
tia--@gmail.com. The email addre ss was associated with “a grea t number of ads.”
Sergeant Snyder linked the IP a ddress associated with the ad to C.D., who lived at 3**5
Nicollet Avenue South. Using soc ial media, the police record-m anagement system, and
official police reports, police were able to connect C.D. to appellant. Sergeant Snyder used

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a police software program to exchange text messages with the ph one number associated
with the ad (target number). Sergeant Snyder testified that, p osing as a potential patron,
he reached an agreement with the person responding to his text messages for prostitution
services. These text messages were later admitted into evidence at trial.
The person texting with Sergeant Snyder instructed him to go t o 3**9 Nicollet
Avenue South. Sergeant Snyder testified that providing prostit ution patrons with an
address different than the place of prostitution is a common practice referred to as “staging”
to provide a measure of anonymity until the person can decide w hether the encounter is a
police sting. Sergeant Snyder testified that he drove to the address provided to him. While
positioned outside of the house, Sergeant Snyder sent text mess ages pretending that he
could not find the location. Sergeant Snyder observed a young African American female,
later identified as J.B., exit th e residence at 3**5 Nicollet A venue and look around.
Sergeant Snyder did not observe anyone else walking around the area. Sergeant Snyder
texted that he was not sure where he was supposed to go and referred to the woman walking
outside of 3**5 Nicollet Avenue. The target number texted back , “That’s me.” Sergeant
Snyder testified that he “could tell that [J.B.] was not the person texting” because he could
see that J.B. was not using a phone. According to Sergeant Sny der, it is common for a
third party to text on behalf of the woman in these cases.
Sergeant Snyder did not meet with J.B. but instead went to obtain a search warrant
and assemble a team to execute th e warrant. Sergeant Stanton t estified at trial that he
assisted Sergeant Snyder. A warrant was obtained. Sergeant Stanton testified that officers
observed a man, later identified as K.O., leaving 3**5 Nicollet Avenue. Sergeant Stanton

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stopped K.O.’s vehicle at the request of another officer, and t urned over K.O. to Sergeant
Snyder to be interviewed. K.O. testified that he went to the home at 3**5 Nicollet Avenue
for prostitution services. K.O. had visited the home on two prior occasions, paying money
for sexual services both times. On that day, K.O. paid $100 to have vaginal sex with a
“thin black lady” who appeared t o be in her “middle 20s.” K.O. recalled seeing another
female in the house, who he described as white, possibly in her “upper 20s,” with a reddish
coloring in her hair. Sergeant Snyder testified that K.O. told him that Cassidy (J.B.) was
the woman he paid for sex.
Police executed the search warrant. Sergeant Stanton testified that a “slender, black
female, maybe 22 or 23 years old” answered the door and that he observed an older white
female in the house. Sergeant Snyder arrested appellant behind the residence. Sergeant
Snyder testified that he recognized appellant. Sergeant Snyder testified that he found an
iPhone on the seat in the vehi cle in which appellant had been s itting. Appellant
acknowledged that the phone was his, but he later said that it belonged to someone else.
Sergeant Snyder was able to read text messages on appellant’s p hone from K.O., asking
“which one is Megan and which one is Cassidy.” Police forensic s personnel were unable
to recover additional information from the phone found near app ellant because of device
encryption, and they were unable to verify the phone number associated with the phone.
Sergeant Snyder testified at tri al that he found three women at the house—C.D.,
J.B., and R.J. C.D. was in the vehicle with appellant. The ot her two women were in the
house. Sergeant Snyder described C.D. as an African American, in her early 20s; J.B. as a
tall and skinny African American w oman; and R.J. as white and p robably in her late 30s.

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Sergeant Snyder testified that he was able to review the contents of C.D.’s phone, and did
not find any of the text messages that he sent to the target ph one number. He likewise
found no text messages sent from K.O.
Officer Zabel testified at trial that, during a previous prost itution sting operation,
officers responded to an online ad, and two females arrived at a hotel room where the
undercover officers were stationed and offered sex for money. Officer Zabel testified that
appellant had driven the women to the hotel. Officers detained appellant, who arrived at
the hotel in the same vehicle as the females.
At trial, the state played a recording of a phone call that app ellant made from jail
after his arrest but before trial, and provided the jury with a transcript of the call. In the
call, appellant speaks to an unidentified female. Appellant refers to the person he is calling
as “bro,” and immediately says that he cannot have contact with C.D. or he will get charged.
Appellant later refers to the other person as “babe” and ends the call with “love you too.”
Appellant twice says that “white dude got me the most f---ed up ” so “you gonna have to
tell her to go down there and try to like, like change her . . . you gonna have to tell her like,
change her testimony or somethi ng. Cuz [sic] they got her like as a victim on my case.”
Appellant also says that “if them girls don’t show up for court , or sh-t like that, it won’t,
I’m good.” Neither C.D., J.B., nor R.J. testified at trial. T he prosecutor argued that
appellant’s statements in this phone call were related to the witnesses’ absence.
A forensic nurse examiner for the Sexual Assault Resource Serv ice at Hennepin
County Medical Center testified at trial. The nurse conducted an exam of J.B. and testified
that, based on her experience and training, J.B. was not functi oning at the level of an

6
ordinary 24-year-old. The nurse testified that J.B. did not kn ow her address or phone
number, and would giggle when asked questions. The nurse testified that J.B. said she has
sex with older men for money. J.B. told the nurse that her roommate, and her roommate’s
boyfriend, “Lee,” “pimp me out on backpages.” J.B. said she had to give appellant all the
money she received in exchange for sex. The nurse noticed redness and swelling on J.B.’s
external genital region, and J.B. jumped back and said it was v ery painful when the nurse
lightly swabbed her genital area.
The jury found appellant guilty of sex trafficking J.B. and R. J. The jury found
appellant not guilty of sex trafficking C.D. The judge later a sked the jury to render a
Blakely verdict concerning J.B., and the jury found that the state prov ed beyond a
reasonable doubt that J.B. lacks the cognitive functioning of a typical 24-year-old person.
The district court subsequently found that J.B. was significantly and particularly vulnerable
and imposed an upward durational sentence for the conviction re sulting from the
trafficking of J.B.
This appeal followed.
D E C I S I O N
I. The district court did not vi olate appellant’s constitutiona l right to confront
witnesses against him.

Appellant argues that the distr ict court violated his constitut ional right to confront
witnesses against him by admitting at trial J.B.’s statements to the forensic nurse.
Whether the admission of evidence violates a criminal defendant’s rights under the
Confrontation Clause is a question of law that appellate courts review de novo. Hawes v.

7
State, 826 N.W.2d 775, 786 (Minn. 2013). A violation of the Confron tation Clause is
subject to the constitutional harm less-error analysis and does not require reversal if the
error is harmless beyond a reasonable doubt. State v. Caulfield , 722 N.W.2d 304, 314
(Minn. 2006).
The Confrontation Clause provides a criminal defendant the right “to be confronted
w i t h t h e w i t n e s s e s a g a i n s t h i m . ” U . S . C o n s t . a m e n d . V I ; see Minn. Const. art. I, § 6
(containing nearly identical langu age as the United State Const itution); see also State v.
Hull, 788 N.W.2d 91, 100 (Minn. 2010) (“We apply an identical analy sis under both the
state and federal Confrontation Clauses.”). In Crawford v. Washington, the United States
Supreme Court held that the Confrontation Clause prohibits the introduction of out-of-
court statements that are testimonial, unless the witness is bo th unavailable and the
defendant had a prior opportunity to cross-examine the witness. 541 U.S. 36, 68, 124 S. Ct.
1354, 1374 (2004). The Supreme C ourt decided to “leave for ano ther day any effort to
spell out a comprehensive definition of ‘testimonial’” but expl ained that, testimonial
includes, “at a minimum,” prior testimony at a preliminary hearing, before a grand jury, or
at a former trial, and police interrogations. Id.
The threshold question under Crawford i s w h e t h e r t h e s t a t e m e n t s a t i s s u e a r e
testimonial. State v. Vang, 774 N.W.2d 566, 577 (Minn. 2009). A number of decisions
from the United States Supreme Court and the Minnesota Supreme Court have expounded
on the question of when a statement is testimonial.
In Michigan v. Bryant, the Supreme Court explained that the inquiry must consider
all of the relevant circumstances to determine whether the prim ary purpose of the

8
conversation was to create an out-of-court substitute for trial testimony. 562 U.S. 344, 358,
131 S. Ct. 1143, 1155 (2011). “ A statement cannot fall within the Confrontation Clause
unless its primary purpose was testimonial.” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015).
Where the primary purpose is n ot testimonial, the admissibility of a statement is the
concern of rules of evidence, not the Confrontation Clause. Id. In Clark, the Supreme
Court considered whether stateme nts to persons other than law e nforcement officers are
subject to the Confrontation Clause. Id. at 2181. The Court stated that, because some
statements to persons other than law enforcement could “conceiv ably raise confrontation
concerns,” it declined to adopt a categorical rule excluding su ch statements from the
Confrontation Clause’s reach. Id. But the Court explained that such statements made to
someone who is not principally charged with uncovering and prosecuting criminal behavior
“are much less likely to be testimonial.” Id.
The Minnesota Supreme Court has explained that the critical fac tor in assessing
whether a statement is testimonial is whether it was prepared for litigation. Caulfield, 722
N.W.2d at 309; see State v. Scacchetti, 711 N.W.2d 508, 513 (Minn. 2006) (explaining that
whether evidence is testimonial d epends largely on “whether eit her a declarant or
government questioner is acting, to a substantial degree, in or der to produce a statement
for trial” (quotation omitted)). The supreme court has twice considered whether a victim’s
statements to a medical provider (nurse) were testimonial. State v. Krasky , 736 N.W.2d
636 (Minn. 2007); Scacchetti, 711 N.W.2d at 514. In both cases, the supreme court
considered whether the nurse was a government actor or was instead acting as a proxy for
law enforcement. Krasky, 736 N.W.2d at 641; Scacchetti, 711 N.W.2d at 514.

9
In Scacchetti, the supreme court determined that the nurse was not a governm ent
actor, but explained that, even if the nurse was a government actor, the victim’s statements
to the nurse were not testimonial because the nurse’s primary purpose in interviewing and
examining the victim was to assess the victim’s medical condition. 711 N.W.2d at 514-15
(noting that the record established that the primary purpose in evaluating victims is to
determine whether the child has b e e n a b u s e d , a n d i f n e c e s s a r y , to connect the child to
appropriate services). Moreover, the mere fact that a nurse ma y testify regarding sexual
abuse cases does not transform the medical purpose of an assess ment into a prosecutorial
purpose. Id. at 515. Likewise, in Krasky, the supreme court determined that the nurse who
conducted an assessment of the victim upon the referral of soci al services and law
enforcement was not acting as a proxy for law enforcement. 736 N.W.2d at 641. It
concluded that the primary purpose of the examination was to as sess and protect the
victim’s health and welfare. Id. These cases analyze the pur pose of the nurse examining
a victim as of the time of the examination.
Here, the nurse testified in detail about the examination process. She testified that
a specific protocol is employed to ensure that a patient’s safe ty needs are met, and to
address psychological trauma, when the nurse suspects sexual ex ploitation. The nurse
testified that the process begins when a nurse gets paged, iden tifying that someone needs
an exam. The patient is asked for consent for the nurse to look at her body and is told she
can withhold consent. The nurse then explains that her role as a nurse is to help ensure that
the patient’s body is safe and he althy, in addition to ensuring that the patient has a safe
place to go when she leaves the hospital. The nurse testified that it is important that the

10
patient understands that the nurse is not an arm of law enforcement and does not work with
law enforcement. The examinati on begins with the nurse obtaini ng basic demographic
information and medical history. The nurse then gets basic vit al signs such as blood
pressure and heart rate. The nurse next inquires into what hap pened during the incident
and asks follow-up questions to help guide the rest of the exam and inform the nurse as to
where on or in the body evidence might be collected. If the victim was exploited, the nurse
asks questions specific to expl oitation and mandated reporting requirements for the state.
After the interview portion of the exam, the nurse has the pati ent change into a hospital
gown for a head-to-toe physical exam. After the complete physical exam, the nurse swabs
for any potential evidence on the body where there might be saliva, semen, or sweat based
on what the patient reported. The use of a blue light identifies such materials. The process
concludes with the nurse advising the patient of follow-up medi cal concerns, and by
involving a social worker to create a safety plan. The nurse t estified that each and every
step is important for the diagnosis and treatment for the patient.
Appellant argues that the primary purpose of the nurse’s work w ith J.B. was to
produce a statement for future prosecution and was therefore testimonial. Appellant asserts
that it is particularly significan t that there was no ongoing e mergency, the interview was
initiated by law enforcement, and the nurse elicited statements that were not directly related
to medical treatment.
We take these assertions in turn . First, an emergency is not n ecessary to make an
out-of-court statement non-testimonial. Aiding an ongoing emergency may be but one of
several circumstances in which statements to law enforcement have a primary purpose that

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is not testimonial. Krasky, 736 N.W.2d at 643; accord Davis v. Washington, 547 U.S. 813,
126 S. Ct. 2266 (2006). Here, the statements in question were to a nurse in her capacity as
such, and whether the situation was emergent is of no consequence.
Second, the fact that the medical examination was initiated by law enforcement
delivering the patient to the nurse does not make the patient’s statements testimonial. The
medical examination was initiated in part by law enforcement in Krasky, but the supreme
court determined that the primary purpose of the examination wa s medical. 736 N.W.2d
at 642 (holding that, despite a police officer and a child protection worker having “jointly
concluded” how best to proceed with the investigation, that fac t “does not change our
conclusions”). That the nurse in this case may have had a duty to report certain things to
police does not change this conclusion. Cf. Clark, 135 S. Ct. at 2182-83 (stating that Ohio’s
mandatory reporting obligations for teachers do not equate teachers to law enforcement).
T h i r d , e v e n i f t h e n u r s e w a s e l iciting statements not directly related to medical
treatment, this does not change the primary purpose of the evaluation. See Scacchetti, 711
N.W.2d at 515 (“[E]ven if we were to conclude that [the nurse’s ] assessments of [the
victim] had, as a secondary purpose, the preservation of testimony for trial, [the vicitim’s]
statement would still not be testimonial.”). Moreover, it is evident from the record that the
protocol employed by the nurse here was more global in orientat ion, and not limited to
strictly “medical” concerns. The nurse was acting to protect the overall health and welfare
of the victim. See id. at 515 (noting that the testimony established that the primary purpose
in evaluating victims is to determine whether the child has been abused, and, if necessary,
to connect the child to appropriate services); cf. Krasky, 736 N.W.2d at 642 (recognizing

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that the harms of child abuse are not limited to the abused chi ld’s physical well-being).
The nurse testified that it is important to know the identity of any person taking advantage
of the patient to devise a safety plan. If the offender is an intimate partner, the victim may
not have a safe environment to which to return and the identity of the offender could change
the effect of the injuries and psychological trauma.
Appellant cites to a federal habeas corpus decision holding tha t it was objectively
unreasonable for the Minnesota Supreme Court to conclude that a c h i l d ’ s r e c o r d e d
interview by a social worker at the police station was not a testimonial police interrogation.
Bobadilla v. Carlson, 570 F. Supp. 2d 1098, 1107 (D. Minn. 2008). In affirming the district
court, the Eighth Circuit conclu ded that the child’s interview was no different than any
other police interrogation. Bobadilla v. Carlson, 575 F.3d 785, 791 (8th Cir. 2009).
This case is distinguishable from that one in every important respect—the interview
in Bobadilla was conducted at the police station, not at a hospital; the pur pose of the
interview in Bobadilla was to confirm allegations of abuse, not to provide medical
treatment; and the social worker asked to assist with questioni ng of the criminal
investigation in Bobadilla was a surrogate for law enforcement. Id. at 791-92. Not so here.
This nurse acted independently and was not part of a police investigation.
The primary purpose of the medical examination here was just t hat—medical.
Therefore, the admission of J.B.’s statements to the forensic n urse did not violate
appellant’s constitutional right to confront witnesses.

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II. The evidence is sufficient to establish that appellant enga ged in the sex
trafficking of R.J.

Appellant argues that the evidence is insufficient to prove bey ond a reasonable
doubt that appellant engaged in sex trafficking R.J. R.J. did not testify at trial. There was
no medical examination testimony concerning R.J. And, unlike the charge relating to J.B.,
there was no testimony of any person who engaged in sex acts wi th R.J. for money. The
evidence of appellant’s trafficking of R.J. is therefore circumstantial.
In a criminal prosecution, the state must prove every element of the crime charged
beyond a reasonable doubt. State v. Jones , 347 N.W.2d 796, 800 (Minn. 1984). When
reviewing a claim of insufficien t evidence, we carefully review the record “to determine
whether the evidence and reasona ble inferences drawn therefrom, viewed in a light most
favorable to the verdict, were sufficient to allow the jury to reach its verdict.” Lapenotiere
v. State, 916 N.W.2d 351, 360 (Minn. 2018) (quotation omitted). When the direct evidence
of guilt on a particular element is not alone sufficient to sustain the verdict, appellate courts
apply the circumstantial-evidence standard of review.1 Loving v. State, 891 N.W.2d 638,
643 (Minn. 2017). The circumsta ntial-evidence standard of revi ew entails a two-step
analysis. Harris, 895 N.W.2d at 598-601. We first identify the circumstances p roved,
disregarding evidence that is inconsistent with the jury’s verd ict. Id. at 600. Second, we
independently consider whether a reasonable inference of non-guilt can be drawn from the

1 The supreme court has defined ci rcumstantial evidence as “evid ence from which the
factfinder can infer whether the facts in dispute existed or di d not exist.” State v. Harris,
895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). “[C]ircu mstantial evidence
always requires an inferential step to prove a fact that is not required with direct evidence.”
Id.

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circumstances proved, viewed as a whole. Id. The circumstances proved, “must be
consistent with a reasonable inference that the accused is guilty and inconsistent with any
rational hypothesis except that of guilt.” Id. at 601.
To convict appellant, the state was required to prove that appellant, acting other than
as a prostitute or patron, 2 intentionally engaged in the sex trafficking of an individual.
Minn. Stat. § 609.322, subd. 1a( 4). “Sex trafficking” is defin ed by statute as:
“(1) receiving, recruiting, enticin g, harboring, providing, or obtaining by any means an
individual to aid in the prostitution of the individual; or (2) receiving profit or anything of
value, knowing or having reason to know it is derived from an act described in clause (1).”3
Minn. Stat. § 609.321, subd. 7a (2016).
Appellant argues that the state did not provide any direct evid ence to prove the
offense—R.J. did not testify to f acts that would establish the elements—and the state
produced no other direct evidence that appellant received, recr uited, enticed, harbored,
provided, or obtained by any mean s, an individual to aid in pro stitution of R.J. or that he

2 “Prostitute” is defined as “an individual who engages in prost itution by being hired,
offering to be hired, or agreeing to be hired by another indivi dual to engage in sexual
penetration or sexual contact.” Minn. Stat. § 609.321, subd. 8 (2016). “Patron” is “an
individual who engages in pros titution by hiring, offering to h ire, or agreeing to hire
another individual to engage in sexual penetration or sexual co ntact.” Minn. Stat.
§ 609.321, subd. 4 (2016).

3 “Prostitution,” also defined by statute, means “hiring, offering to hire, or agreeing to hire
another individual to engage in sexual penetration or sexual co ntact, or being hired,
offering to be hired, or agreeing to be hired by another indivi dual to engage in sexual
penetration or sexual contact.” Minn. Stat. § 609.321, subd. 9 (2016).

15
received profit or anything of value knowing or having reason to know it was derived from
the just-described acts.
W e f i r s t d e t e r m i n e t h e c i r c u m s t a n c e s p r o v e d t h a t a r e c o n s i s t e n t w i t h t h e j u r y ’ s
verdict. Harris, 895 N.W.2d at 598-601. The state proved through the testimony of police
officers and K.O. that R.J. was present at the house where sex trafficking was taking place.
Sergeant Snyder testified that h e read text messages from K.O. on appellant’s phone,
referring to “Cassidy” and “Megan.” Evidence at trial showed that “Cassidy” is J.B., with
whom K.O. had sex for money. Under these circumstances, the ju ry could infer that
“Megan” referred to R.J. because she was the only other person in the house when K.O.
arrived as a patron. Appellant ’s recorded jail phone conversat ion provides additional
evidence that appellant engaged in trafficking R.J. The jury c ould reasonably conclude
that appellant was talking to C.D. during that phone conversation (from our reading of the
transcript, it seems very likely that appellant was talking to C.D.), was referring to R.J. as
“white dude,” and was referring to J.B. as “black dude.” On the day appellant was provided
a copy of the criminal complaint, he said on the recorded phone call that “I just seen
everything . . . what both dudes said.” Appellant said that “w hite dude got me the most
f---ed up.” Appellant told the person on the other end of the phone call to try to get “white
dude” to “change her testimony. . . . Cuz [sic] they got her like as a victim on my case.”
(Emphasis added.) Appellant said he would be “good” as long as those “girls” do not show
up for court.
Appellant agrees that these circ umstances proved are consistent with guilt
concerning R.J.’s trafficking, but argues that they are also co nsistent with a rational

16
hypothesis other than guilt. A challenge to a verdict “may not rely on mere conjecture” or
speculation. State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008). When the circumstances
proved are consistent with guilt, a criminal defendant must point to evidence in the record
that is consistent with a rati onal theory other than guilt for circumstantial evidence to be
insufficient to support the verdict. Id. Appellant has not done so here. Any alternative
hypothesis that R.J. was present for some non-criminal purpose at the home where sex
trafficking was occurring would have to be based on speculation and not on any evidence
in the record. As discussed, R.J. did not testify. And no witness testified that R.J. was at
the address for some social or other reason unrelated to prostitution. To reverse the jury’s
verdict on this record would req uire us to postulate as to some other theory that the jury
did not find existed. The circumstantial evidence supports the jury’s verdict.
III. The jury’s Blakely findings are insufficient to support an aggravated sentence,
and resentencing is necessary.

Appellant and the state agree that the case must be remanded for resentencing.
The sentencing record reflects conflicting information about wh ether these
sentences are concurrent or consecutive and whether the jail cr edit applies to one or both
sentences. The district court also amended the sentence twice after appellant filed a notice
of appeal with this court. The filing of a timely and proper a ppeal suspends the district
court’s authority to make any order that affects the order or j udgment appealed from,
although the district court retains jurisdiction as to matters independent of, supplemental
to, or collateral to the order o r judgment appealed from. Minn . R. Civ. App. P. 108.01,
subd. 2; see Spaeth v. City of Plymouth , 344 N.W.2d 815, 824 (Minn. 1984). Here,

17
appellant is challenging his sente nce, and the district court n o longer had jurisdiction to
amend the sentence after appellant appealed.
The parties also agree that the jury’s Blakely finding is insufficient to support an
aggravated sentence. An upward or downward departure must be supported by “substantial
and compelling circumstances” showing the offense to be significantly more or less serious
than a typical offense. Minn. Sent. Guidelines 2.D.1.c (2016).4 The sentencing guidelines
provide a list of aggravating factors that may properly support an upward departure. Minn.
Sent. Guidelines 2.D.3.b (2016). One such aggravating factor i s that “[t]he victim was
particularly vulnerable due to age, infirmity, or reduced physi cal or mental capacity, and
the offender knew or should have known of this vulnerability.” Id. The facts necessary to
support an upward departure from the presumptive guidelines sen tence must be found by
a jury or court unless admitted by a defendant. State v. Shattuck, 704 N.W.2d 131, 141-42
(Minn. 2005); see Blakely v. Washington , 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537
(2004).
Here, the only determination that the jury made was that the state had proved beyond
a reasonable doubt that J.B. “lacks the cognitive functioning o f a typical 24-year-old
person.” This finding does not s upport that appellant knew or should have known of any

4 It is not clear to us whether t he continuing offenses occurred while both the 2016 and
2017 guidelines were applicable, or only 2016. The provisions to which we cite were left
unchanged. We cite to the 2016 S entencing Guidelines, which is when these offenses
began.

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such vulnerability, and the state concedes as much. 5 Therefore, we reverse the sentence
for count II and remand to the district court for further proceedings consistent with Blakely.
Affirmed in part, reversed in part, and remanded.

5 We do not reverse appellant’s sentence on the ground that the evidence was insufficient
to support the departure. The district court gave proper reasons for appellant’s departure.
And the jury could have found the necessary facts to support the departure on thi s record.
The error here was that the jury was not provided with interrog atories sufficient to find
both that the victim was particul arly vulnerable and that appel lant knew or should have
known of the victim’s particular vulnerability. Minn. Sent. Guidelines 2.D.3.b.(1) (2016);
see Carse v. State, 778 N.W.2d 361, 372-73 (Minn. App. 2010) (explaining that, be cause
jury did not make specific factual findings, an aggravated sentenced could not be imposed),
review denied (Minn. Apr. 20, 2010).