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This opinion will be unpublished and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
A18-1062

State of Minnesota,
Respondent,

vs.

Jason Nathaniel Oliger,
Appellant.

Filed April 1, 2019
Affirmed
Connolly, Judge

Dakota County District Court
File No. 19HA-CR-17-2148

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

James C. Backstrom, Dakota County Attorney, Elizabeth M. Swank, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decid ed by Bjorkman, Presiding Judge; Connolly, Judge; and
Florey, Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his sentence for possession of pornographic work involving
minors by a registered predatory offender, arguing that the district court abused its
discretion in denying hi s motion for a downward dispositional departure based on his
mental illness. Because we see no abuse of discretion, we affirm.
FACTS
Appellant Jason Oliger had a 2015 conviction for possession of pornographic work
involving minors. He was placed on probation for this offense. In February 2017, police
executed a search warrant at his home and seized a computer, an iPod, and a disk, on which
they found 2,786 images of suspected child pornography , which were then sent to the
National Center for Missing and Exploited Children (NCMEC) to be identified.
Appellant was charged with felony possession of pornographic work involving
minors (registered predatory offender) and felony possession of pornographic work
involving minors (prior conv iction). He entered a straight guilty plea to possession of
pornographic work involving minors by a registered predatory offender, for which the
guidelines sentence is 45 months in prison, executed, with ten years of conditional release.
Appellant moved for a downward dispositional departure and probation on the
grounds of mental il lness. The district court found no substantial and compelling
circumstances warranting departure and sentenced appellant to prison according to the
sentencing guidelines. Appellant challenges the denial of his motion, arguing that the

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district court’s failure to depart on the basis of appellant’s mental illness was an abuse of
discretion.
D E C I S I O N
A district court must order the presumptive sentence provided by the sentencing
guidelines unless “substantial and compelling circumstances” support a departure, in which
case the district court has discretion to depart; however, a refusal to depart will be reversed
only in a “rare” situation. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see also State
v. Solberg, 882 N.W.2d 618, 623, 625 (Minn . 2016) (noting that, because the goal of the
guidelines is uniformity in sentencing, departures are just ified only in exceptional cases
when “identifiable, substantial and compelling circumstances” support the departure).
When a court intends to commit an offender with a
serious and persistent mental illness . . . for
imprisonment at a state correctional facility . . . the
court, when consistent with public safety , may instead
place the offender on probation . . . and require as a
condition of the probation that the offender successfully
complete an appropriate supervised alternative living
program having a mental health treatment component.

Minn. Stat. § 609.1055 (2016) (emphasis added). Appellant argues that the district court
“did not consider any of the factors relevant to this departure ground and instead focused
on irrelevant issues.” But the district court focused on two relevant issues in denying
appellant’s motion for a dispositional departure.
First, the district court focused on the extent to which appellant is a risk to publi c
safety while on probation. The district court told appellant at the hearing on his motion:
[You are] for the second time before the court on a possession
of child pornography conviction.

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. . . [L]ess than two years after you pled guilty you’re back in
court again. . . . At first you denied that you had possession of
porn. You were saying, well, you had no access to the
computer. It was your mom’s computer. That proved to be
wrong.
You were then confronted with the fact that you had this child
porn on a flash drive. . . . [Y]ou said . . . [t]ha t child porn was
on there when [you] bought [the flash drive] . . . . I don’t think
[it’s] likely that that happened that way. So I’ve got somebody
in front of me here who is not really taking responsibility. . . .
You knew that you were not to possess child porn. You were
convicted of that. You were told back in 2015 when you pled
guilty that you had to stay away from this stuff. . . .
. . . [O]bviously, it goes without sayi ng you are a high risk to
reoffend because you did reoffend.
. . . You’re not amenable to probation because you reoffend [by
committing] the exact same crime while you’re on probation.

The district court’s view is corroborated by the psychosexual evaluation included in
appellant’s presentence investigation, which stated that:
[Appellant] . . . denied purposeful ly accessing child
pornography. He has a history of non -cooperation with the
conditions of his probation, as well as non -compliance with
psychiatric and sex-offender treatment. Many of these factors
are associated with an increased risk for re-offending.
. . . [Appellant] presents with factors that suggest he is at a
higher risk for reoffending. He has a prior convictio n for a
similar offense. . . .
[Appellant] has failed to comply with the conditions of his
probation. . . .
. . . .
Challenges in com munity supervision [of appellant] include
his history of non -compliance with conditions of probation
(both by using computers and accessing child pornography).

Appellant was placed on probation for the 2015 offense with the assumption that he
would not reoffend while on probation. That assumption proved inaccurate, and the district
court did not abuse its discretion by declining to repeat it.

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Second, the district court focused on the inadequacy of outpatient sex -offender
treatment for appellant, rejecting his request to be placed in an adult foster -care program
where “he can start outpatient sex offender treatment.” Appellant’s psychosexual
evaluation noted that
[i]n regard to sex specific treatment, [appellant] has been
discharged from two outpatient Sex Offender Treatment
programs already. The combination of his psychiatric
symptoms and sexual behaviors suggest[s] that outpatient
[treatment] would be inappropriate at this time. . . . If [he] is
incarcerated, Sex Offender Treatment is recommended while
he is incarcerated as well as a higher level of support once he
is released (e.g., group home).

The psychosexual evaluation also noted that outpatient treatment was not appropriate for
appellant’s mental condition:
. . . [A]lthough [appellant’s] symptoms of depression appear at
least partially in remission, he has f ailed to comply with
psychiatric recommendations and is at risk of having anot her
depressive or manic/hypomanic episode without appropriate
treatment. . . . If [he] is not incarcerated, he would likely need
a high level of support to maintain compliance with mental
health treatment recommendations (e.g., a facility or group
home).

Appellant’s desire to be in outpatient treatment rather than incarcerated is not a
substantial or compelling circumstance that would justify departure from the guideline
sentence. The district court’s decision not to depart was not an abuse of discretion.
Affirmed.