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This opinion will be unpublished and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
A19-0151

State of Minnesota,
Respondent,

vs.

Shawn Michael Tillman,
Appellant.

Filed October 12, 2020
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-17-5830

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his sentence for indecent exposure in the presence of a minor,
arguing that his offense was significantly less serious than typical and that the district court
therefore abused its discretion by denying his motion for a downward durational departure.
We affirm.
FACTS
Appellant Shawn Michael Tillman pleaded guilty to indecent exposure in the
presence of a minor. He admitted that in July 2017, he exposed his penis and openly
masturbated while in the public part of an apartment building in Ramsey County. While
doing so, he approached a glass door, and a woman and her infant were on the other side
of the door. Tillman could see the woman and infant, and he knew that they could see him.
Tillman admitted that he had a prior gross-misdemeanor conviction for indecent exposure
in the presence of a minor from June 2017. At the time of the current offense, Tillman had
four prior convictions (including the one from June 2017) , as wel l as numerous pending
charges, for indecent exposure.
Tillman moved for a downward dispositional departure or a downward durational
departure. At sentencing, the district court denied the downward dispositional departure .
The court sentenced Tillman to 39 months in prison without expressly addressing his
motion for a downward durational departure. Tillman appealed, and this court stayed his
appeal so he could pursue postconviction relief.

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Tillman petitioned for postconviction relief, seeking a ruling on his motion for a
downward durational departure. The district court granted a hearing and acknowledged
that it had not ruled on Tillman’s durational-departure motion at the initial sentencing
hearing. Tillman argued that a downward d urational departure was appropriate because
his conduct was significantly less serious than conduct in typical cases involving indecent
exposure in the presence of a minor. Specifically, Tillman noted that he did not seek out a
particular victim, the mino r was an infant who could not understand his conduct, and his
actions were not sexually motivated and instead were the result of his mental illness.
The district court denied Tillman’s request for a downward durational departure ,
reasoning:
In terms of the matter being less serious, I don’t find that
it is less serious . . . . It is different, but as to the argument that
the defendant, Mr. Tillman, didn’t seek out specific victims or
a location, that may be the case that he was not seeking them
out. . . .
But you don’t have to be in a playground area to know
that there are going to be children around. And in an apartment
building, whether or not the victim here and her child were
visiting or they were living there or whether they were in a
common space or not, an apartment building is going to have
young families, there are going to be young children. And this
child, I agree with counsel, a 1 -year-old or 2 -year-old, is
probably not going to have been damaged here, but it could
have easily been a 3-year-old or a 6-year-old or a 10-year-old,
and certainly there could have been other children. . . .
It does appear that this is a product of Mr. Tillman’s
mental illness as opposed to a predatory or a sexual impulse.
. . . But again, I don’t see that this—I could consider this a less
serious case. I think it is serious anytime, exposing yourself in
front of others in an area where children likely are to be, like
an apartment building. It is a little different from the other

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cases, I give counsel that, but not different enough that I could
find it as less serious to grant a departure.
. . . .
It’s compelling, lost a little sleep over this, but I’m
afraid I’m going to deny that motion.
This court reinstated Tillman’s appeal.
D E C I S I O N
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2016). The sentencing guidelines seek to
“maintain uniformity, proportionality, rationality, and predictability in sentencing” of
felony crimes. Id. “Consequently, departures from the guidelines are discouraged and are
intended to apply to a small number of cases.” State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016). A district court may depart from the presumptive sentence only when there
exist “identifiable, substantial, and compelling circumstances to support a departure. ”
Minn. Sent. Guidelines 2.D.1 (2016). A durational departure must be based on factors that
reflect the seriousness of the offense. Solberg, 882 N.W.2d at 623. A downward durational
departure is justified if “the defendant’s conduct is significantly less serious than that
typically involved in the commission of the offense.” State v. Mattson, 376 N.W.2d 413,
415 (Minn. 1985).
When substantial and compelling cir cumstances exist, the district court has broad
discretion to depart, and we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only in a “rare” case will we reverse the
district court’s refus al to depart from the presumptive sentence. Id. When exercising

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sentencing discretion, the district court “must consider circumstances supporting a
downward durational departure from the presumptive sentence”; the court errs when it fails
to consider “le gitimate” and “significant” reasons for a departure. State v. Curtiss , 353
N.W.2d 262, 262 -64 (Minn. App. 1984). However, the district court is not required to
depart even though there are grounds to do so. State v. Olson, 459 N.W.2d 711, 716 (Minn.
App. 1990), review denied (Minn. Oct. 25, 1990).
When a defendant initially files a direct appeal and then moves for a stay to pursue
postconviction relief, we review the postconviction court’ s decisions using the same
standard that we apply on direct appeal . State v. Beecroft , 813 N.W.2d 814, 836 (Minn.
2012).
The record reflects that the district court considered the reasons proffered for the
departure. Indeed, Tillman does not argue that the district court failed to do so. Instead,
he offers three arguments for reversal. First, Tillman reiterates the argument he presented
to the district court that his offense was significantly less serious than typical because he
did not seek out specific victims, the minor was an infant who could no t understand his
conduct, and his actions were the result of a mental illness rather than a predatory impulse.
Second, Tillman contends that the district court erred by refusing to depart, despite
recognizing that the circumstances were “compelling.” Third, Tillman contends that the
district court erred by reasoning that an older child could have seen the offense, thereby
considering the potential harm rather than the actual harm caused by his conduct.
Tillman’s first two arguments do not provide a b asis for relief. Again, a district
court is not required to depart even if there are grounds to do so. Olson, 459 N.W.2d at

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716. As to Tillman’s third argument, the district court was required to consider whether
Tillman’s conduct was significantly less serious than that typically involved in indecent -
exposure cases. Tillman does not cite any authority indicating that, in doing so, a district
court abuses its discretion by considering the potential, as opposed to the actual, harmful
effects of the defen dant’s conduct. Even if we were to assume, without deciding, that it
was improper for the district court to have considered potential harm, Tillman does not cite
authority suggesting that such reasoning is a basis to reverse.1
Tillman compares the facts of his offense to similar offenses in other indecent-
exposure cases to show that his offense is less serious, and he seems to invite this court to
substitute its judgment for that of the district court. But on appeal, we review for an abuse
of discretion, which occurs when the district court fails to properly apply the law or the
decision is against logic and the facts in the record. Riley v. State, 792 N.W.2d 831, 833
(Minn. 2011). The record shows that the district court considered similar offenses in other
indecent-exposure cases when ruling on Tillman’s departure request. None of the cases
that Tillman uses for comparative purposes suggests that the district court’s decision is
against logic and the facts in the record.

1 This court has, in an unpublished opinion, reversed a district court’s decision to increase
a sentence within the presumptive range based on an impermissible ground. State v.
Christianson, No. A13 -0433, 2014 WL 1344203, at *6 -7 (Minn. App. Apr. 7, 2014)
(holding that courtroom spectator misconduct that is not attributable to the defendant is a
constitutionally impermissible sentencing consideration). But we are not aware of any
appellate decision suggesting that a district court abuses its discretion by r elying on an
improper sentencing consideration in refusing to decrease a sentence.

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In sum, Tillman has not provided a basis for us to conclude that the district court
abused its discretion by imposing a presumptive sentence. Nor is this a “rare” case in
which we would reverse the district court’s refusal to depart downward.
Tillman filed a pro se supplemental brief challenging conditions of release imposed
by the Department of Corrections. An appellate court generally does not consider issues
that were not raised in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
Thus, we limit our review in this appeal to the district court’s sentencing decision and the
reasons proffered in support of Tillman’s departure request. In making its decision, the
district court was not asked to consider co nditions of release that the Department of
Corrections might impose . Th us, such arguments are not properly before this court on
appeal.
Affirmed.