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This opinion will be unpublished and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
A18-1479

State of Minnesota,
Respondent,

vs.

Johnson Bankole Oluwalowo,
Appellant.

Filed July 15, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-17-27266

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Larkin , Presiding Judge; Bratvold , Judge; and Slieter,
Judge.

2
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Johnson Bankole Oluwalowo argues the dist rict court abused its
discretion in denying his motion for a downward dispositional departure because he
demonstrated he is particularly amenable to treatment. We affirm.
FACTS
On October 30, 2017, the state charged appellant with one count of first -degree
criminal sexual conduct in vio lation of Minn. Stat. § 609.342, subd. 1(g) (2016). The
complaint alleged that over the past several years, appellant sexually penetrated his fifteen-
year-old daughter E.O. on numerous occasions.
After being charged, appellant obtained a private psychosexual evaluation with Dr.
Mary Kenning. Dr. Kenning opined that appellant had a below average risk for recidivism
and concluded that he posed less risk to the community than average offenders.
On April 9, 2018, appellant entered a guilty plea to the sole count of first -degree
criminal sexual conduct. Appellant admitted to digitally penetrating his daughter on one
occasion. The district court accepted the plea and ordered a psychosexual evaluation and
presentence investigation (PSI).
Dr. Mary Marth performed the court -ordered psychosexual evaluation. Dr. Marth
noted that appellant stated he took responsibility for his conduct, although it was unclear if
appellant was accepting more responsibility than he had in the private ps ychosexual
evaluation, or if appellant was avoiding discussing it. Dr. Marth opined that appellant

3
presented a below average risk for reoffending but that the risk was higher if he had access
to a child and power over the child.
The PSI found that appellant minimized his conduct towards his daughter. The PSI
also noted that appellant was defensive and did not understand how his conduct led to the
charge against him.
On June 11, 2018, t he district court sentenced appellant. Several members of
appellant’s family and community submitted letters of support. E.O. also read a statement
to the court.
The state argued that a presumptive guidelines sentence of 144 months was
appropriate. Appellant requested a downward dispositional departure. The district court
denied the motion and sentenced appellant to 144 months. This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion because it failed to
consider the mitigating factors offered by appellant. We review a sentence to “determine
whether the sentence is inconsistent with statutory requirements, unreasonable,
inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact
issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2016). “A district court’s
departure decision will not be reversed absent a clear abuse of discretion. ” State v.
Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), review denied (Minn. Mar. 31,
2009).
“A district court must impose the presumptive guidelines sentence absent
identifiable, substantial, and compelling circumstances justify ing departure.” State v.

4
Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotation omitted), review denied
(Minn. Sept. 17, 2013). “When factors that may justify departing fro m the presumptive
sentence are present, a court must exercise its discretion and consider the factors.” State v.
Kier, 678 N.W.2d 672, 677 (Minn. App. 2004). In considering whether to grant a
dispositional departure, the district court may consider the d efendant’s “particular
amenability to individualized treatment in a probationary setting.” State v. Trog , 323
N.W.2d 28, 31 (Minn. 1982). Relevant considerations, known as the Trog factors, may
include the defendant’s age, prior record, remorse, cooperat ion, attitude in court, and
available support network of friends or family. See id. A district court, however, is not
required to depart “from a presumptively executed prison sentence, even if there is
evidence in the record that the defendant would be amenable to probation.” State v. Olson,
765 N.W.2d 662, 663 (Minn. App. 2009).
If “the record demonstrates that an exercise of discretion has not occurred, the case
must be remanded for a hearing on sentencing and for consideration of the departure issue.”
State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). This court affirms a presumptive
sentence when “ ‘the record shows [that] the sentencing court carefully evaluated all the
testimony and information presented before making a determination. ’” Johnson, 831
N.W.2d at 925 (alteration in original) (quoting State v. Van Ruler , 378 N.W.2d 77, 81
(Minn. App. 1985)). A “district court is not required to explain its reasons for imposing a
presumptive sentence.” Id.
Appellant asserts that the distric t court failed to consider the Trog factors,
contending that many of the factors weigh in his favor because he has no criminal record,

5
he has support from his family and community, he demonstrated cooperation and respect
for the court by completing two psy chosexual evaluations, he enrolled in sex -offender
treatment, and he was remorseful. Appellant argues that the district court simply ignored
these factors that weigh in favor of departure.
This argument is unfounded. First, the district court is not requ ired to explain its
reasons for imposing a presumptive sentence. Id. The district court need only exercise its
discretion and evaluate the evidence and testimony presented to it. Id. Prior to imposing
sentence, the district court remarked: “I did review the letters from family members, church
members. I also reviewed the presentence investigation report. I also reviewed the
psychosexual reports from both psychologists and the memorandum of law from both
parties regarding sentencing.” In addition, the district court heard arguments from counsel.
The record shows that the district court properly evaluated the evidence and testimony.
Second, although not required because it imposed the presumptive sentence, the
district court did address relevant Trog factors. It found that appellant minimized his
conduct and refused to accept responsibility. It also discussed appellant’s lack of criminal
history.
Thus, in sum, the record shows that the district court properly exercised its
discretion. A “reviewing court may not interfere with the sentencing court ’s exercise of
discretion, as long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” Van Ruler , 378
N.W.2d at 80-81.

6
Appellant also argues that the district court misconstrued Dr. Marth’s psychosexual
report “as recommending prison.” At sentencing, the district court stated: “[Prison] was
recommended by both the presentence investigation author and by — and sort of intimated
by Ms. Marth in her [psychosexual] evaluation.” The district court also noted that “two
out of three” of the reports reviewed by the court recommended prison and “that’s not a
good — those aren’t good stats.” Citing State v. Curtiss, appellant contends that this risked
making the hearing a “mechanical or callous” exercise. 353 N.W.2d 262, 264 (Minn. App.
1984) (“Consideration of compelling circumstances is central to the scheme of the
sentencing guidelines, and the practice will avoid sentencing t hat is either mechanical or
callous.”).
In light of the entire sentencing hearing, the district court’s comment did not turn
the sentencing hearing into a “mechanical or callous” exercise. Before making its
statement about the reports, the district court explained its reasoning for denying the
departure request. This reasoning was not based on the number of reports recommending
appellant be imprisoned.
Because the court carefully considered all the evidence that may have supported
appellant’s purported r easons for a dispositional departure, we affirm the district court’s
presumptive sentence.
Affirmed.