State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0278

State of Minnesota,
Respondent,

vs.

Guy Robert Franklin Rabold,
Appellant.

Filed October 7, 2019
Affirmed in part, reversed in part, and remanded
Hooten, Judge

St. Louis County District Court
File No. 69DU-CR-15-1884

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

Mark S. Rubin, St. Louis County Attorney, Kristen E. Swanson, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defende r, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.
S Y L L A B U S
An upward sentencing departure based on a victim’s particular vulnerability may be
imposed when the victim is forced at gunpoint to disrobe during the commission of a crime.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
O P I N I O N
HOOTEN, Judge
Appellant pleaded guilty to aiding and abetting aggravated robbery after he and his
accomplice broke into the victims’ home, forced the victims to undress, and robbed them
at gunpoint. The district court granted the state’s motion for an upward departure and
sentenced appellant to the statutory maximum of 240 months for aggravated robbery—
more than double the presumptive sentence. Appellant challenges the district court’s order
denying his request for resentencing. Because appellant’s victims were forced at gunpoint
to undress during the commission of the crime, they w ere particularly vulnerable, and we
affirm in part. But we reverse in part and remand for resentencing because severe and
aggravating circumstances do not exist to warrant a greater-than-double upward sentencing
departure.
FACTS
This is appellant Guy R abold’s second sentencing appeal before this court. The
facts are set out in Rabold I and are only briefly restated here. See State v. Rabold , No.
A16-1046, 2017 WL 957715 (Minn. App. Mar. 13, 2017), review denied (Minn. May 16,
2017). In the middle of a June 2015 night, Rabold and his accomplice broke into the
victims’ home, waking them. When Rabold and his accomplice reached the victims’
bedroom door, they yelled at the victims to open the door or they would shoot. After
entering the bedroom, with a gun in hand, Rabold’s accomplice ordered the victims to take
off their clothes.

3
Once the victims were naked, Rabold placed a gun to the victims’ heads and ordered
them to go downstairs where a safe was located. Rabold instructed the naked male victim
to unlock the safe and then to lie down next to the naked female victim while Rabold and
his accomplice removed the contents of the safe. Rabold told the victims not to move and
threatened to come back and kill them if they did . Rabold fled with the contents of the
safe. Police arrested him shortly thereafter.
Rabold admitted to police that he took part in the robbery. He told police that he
knew the victims, as he had previously dated the female victim’s daughter and had been to
her home before the night of the offense . He knew about the safe and planned to steal its
contents to pay off his debts.
The state charged Rabold with aiding and abetting first-degree aggravated robbery,
among other crimes. He pleaded guilty to all counts and waived his right under Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to a jury trial to determine whether
aggravating factors existed for an upward sentencing departure.
After a bench trial to determine whether a sentencing departure was appropriate, the
district court determined that Rabold was a danger to public safety and was a “dangerous
offender” under Minn. Stat. § 609.1095, subd. 2 (2014). The district court also determined
that an upward departure was justified based on the particular vulnerability of the victims
because they were ordered to undress. The district court found that the victims’ nudity
made them particularly vulnerable and that this vulnerability was a substantial factor in
completing the robbery.

4
At the sentencing hearing, the state requested the statutory maximum sentence of
240 months for aggravated robbery, which was more than double the presumptive sentence
of 111 months.1 The state asked the district court to impose the sentence solely based on
the finding that Rabold was a “dangerous offender” and without regard to particul ar
vulnerability. The district court imposed the statutory maximum sentence of 240 months
on the aggravated-robbery conviction and sentenced Rabold to concurrent prison terms on
the other counts.
Rabold appealed the upward departure based on his status as a dang erous offender
and challenged one of the concurrent sentences because it arose from the same behavioral
incident. In Rabold I, we affirmed Rabold’s sentence, but reversed and remanded to vacate
the concurrent sentence as it was part of the same behavioral incident. Rabold I, 2017 WL
957715, at *4–5.
Shortly after Rabold I was before this court, the district court vacated one of
Rabold’s prior convictions of being a felon in possession of a firearm based upon the
holding in State v. Haywood that an air-powered BB gun is not a “firearm” for purposes of
the ineligible-possession-of-a-firearm statute. 886 N.W.2d 485, 490 (Minn. 2016). The
district court reasoned that because Rabold had been convicted of possessing a BB gun as
a felon, he had been wrongly convicted for that offense. Because of this vacation, Rabold
moved the district court for resentencing as he no longer qua lified as a “dangerous

1 Rabold was subject to a three -month custody enhancement, which is assigned when an
offender has a custody status point and the offender’s total criminal-history score exceeds
the maximum score of six. Minn. Sent. Guidelines 2.B.2.c (2018).

5
offender” under Minn. Stat. § 609.1095, subd. 2 . He also challenged the district court’s
finding that the victims were particularly vulnerable. Following a motion hearing, t he
district court held that Rabold was no longer considered a dangerous offender . But the
district court again sentenced Rabold to 240 months for aggravated robbery, finding that
the victims’ particular vulnerability supported the statutory maximum sentence.
This appeal follows.
ISSUES
I. Did the district court abuse its discretion by imposing the maximum sentence
based on the victims’ particular vulnerability after they were ordered at gunpoint
to undress?

II. Did the distri ct court abuse its discretion by imposing a greater -than-double
upward departure?

ANALYSIS
Rabold challenges his sentence of 240 months for aggravated robbery. He argues
that the district court abused its discretion by imposing the maximum sentence based on
the victims’ particular vulnerability of being naked. He alternatively argues that the
aggravating circumstances did not justify a greater -than-double upward departure. “We
review a district court’s decision to depart from the presumptive guidelines sentence for an
abuse of discretion.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). We apply a
de novo standard when reviewing whether a particular reason for an upward departure is
permissible. Dillon v. State , 781 N.W.2d 588, 595 (Minn. App. 2010), review denied
(Minn. July 20, 2010). “Once we determine as a matter of law that the di strict court has

6
identified proper grounds justifying a challenged departure, we review its decision whether
to depart for an abuse of discretion.” Id.
I. The victims were particularly vulnerable after being forced to undress
at gunpoint.

An upward or do wnward departure must be supported by “substantial and
compelling circumstances” as to why the offense is significantly more or less serious than
a typical offense. Minn. Sent. Guidelines 2.D.1.c. (2018). The sentencing guidelines
provide a nonexclusive list of aggravating factors that may properly support an upward
departure. Minn. Sent. Guidelines 2.D.3.b. One such aggravating factor is when “[t]he
victim was particularly vulnerable due to age, infirmity, or reduced physical or mental
capacity, and the offender knew or should have known of this vulnerability.” Id.
A. Nudity may be considered as an aggravating factor for an upward departure.
Rabold argues that nudity does not render a victim particularly vulnerable to justify
an upward departure under the sentencing guidelines. Minnesota caselaw has yet to
address whether a victim’s nudity renders that person particularly vulnerable for pu rposes
of an upward departure. The sentencing guidelines provide three specified grounds for
finding that a victim is particularly vulnerable: age, infirmity, or physical or mental
capacity. Id. But this list is “nonexclusive.” Minn. Sent. Guidelines 2.D.3. Because the
guidelines’ list is nonexclusive, Minnesota courts have expanded “particular vulnerability”
to non-listed grounds to warrant an upward departure. For example, we have found that a
victim was particularly vulnerable because the crime was co mmitted while the victim’s
child was nearby, thereby compromising the victim’s ability to flee. State v. Grampre ,

7
766 N.W.2d 347, 353 (Minn. App. 2009), review denied (Minn. Aug. 26, 2009). A victim
of criminal sexual conduct was particularly vulnerable because the defendant “began
touching her while she was asleep.” State v. Skinner, 450 N.W.2d 648, 654 (Minn. App.
1990), review denied (Minn. Feb. 28, 1990). And a victim was found to be particularly
vulnerable because she knew and trusted the defendan t. State v. Schroeder, 401 N.W.2d
671, 675 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987). Even though the
victim’s nudity does not specifically appear in the sentencing guidelines as an aggravating
factor, we are not precluded from considering it as a basis for an upward departure.
B. Though a substantial-factor finding is not required, under the facts of this case, the
district court did not abuse its discretion in finding that the victim’s nudity was a
substantial factor in the completion of the crime.

Turning to his next argument, Rabold claims that , even if nudity can be a basis for
an upward departure, his victims were not particularly vulnerable because their nudity was
not a “substantial factor” in accomplishing the crime.
Minnesota caselaw has considered whether a par ticular vulnerability has played a
substantial factor in the commission of a crime in order to determine whether an upward
departure is justified . State v. Givens , 544 N.W.2d 774, 775 (Minn. 1996); State v.
Gardner, 328 N.W.2d 159, 162 (Minn. 1983). In Givens, the supreme court ruled that the
74-year-old female victim who walked with a cane was particularly vulnerable. 544
N.W.2d at 775. T he defendant knocked on the victim’s door, reached for her cane, and
pushed her to the ground in order to rob her. The district court found that her vulnerability
was a substantial factor in the commission of the crime. See id. at 776. The supreme court

8
held that an upward departure was justified because the defendant “exploit[ed] the victim’s
vulnerability.” Id.
Conversely, in Gardner, the victim of a sexual assault had epilepsy and at one point
during the assault was fearful an epileptic seizure might be triggered. 328 N.W.2d at 162.
The supreme court held that her condition did not render her particularly vulnerable
because there was “no basis for concluding that this was a substantial factor in defendant’s
accomplishing sexual penetration.” Id. Similarly in State v. McClay, the supreme court
found that t he victim’s short stature was not a substantial factor in a bank robbery. 310
N.W.2d 683, 685 (Minn. 1981). As the defendant and his accomplice were leaving the
bank, the defendant grabbed the receptionist, a five -foot-tall woman weighing 95 pounds,
and forced her to walk with them down the block , where the defendant released her. Id.
The supreme court held that an upward departure was not warranted based on the victim’s
vulnerability of having a small stature, as she is not “any more vulnerable in the face of a
gun than a larger person because a gun can kill either quite easily.” Id.
Rabold argues that, based on the above cases, his victims’ nudity was not a
substantial factor in the completion of the crime. But these cases do not hold that a victim’s
particular vulnerability is a valid ground for departure only if it assists the defendant in
accomplishing the crime. And the sentencing guidelines do not require a specific finding
that a victim’s particular vulnerability played a “substantial part” in the commission of the
crime. We further note that our court has previously described a particular vulnerability as
a condition that “impairs the victim’s ability to seek help, fight back, or escape harm,” and
did not impose a substantial -factor requirement. State v. Mohamed , 779 N.W.2d 93, 98

9
(Minn. App. 2010), review denied (Minn. May 18, 2010). And in a series of cases dating
back to 1989, both the Minnesota Supreme Court and this court have upheld the grant of
upward sentencing departures when the victim’s ability to flee was compromised because
a child was present. State v. Johnson, 450 N.W.2d 134, 135 (Minn. 1990); Grampre, 766
N.W.2d at 353; State v. Hart , 477 N.W.2d 732, 740 (Minn. App. 1991) , review denied
(Minn. Jan. 16, 1992) ; State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) , review
denied (Minn. Oct. 13, 1989). Our reading of the caselaw would indicate that a substantial-
factor finding is not required in order to justify an upward depart ure based on particular
vulnerability.
But we need not decide as a matter of law whether a substantial -factor finding is
required because, even assuming that one is required, the facts of this case support such a
finding. We agree with the district court’s analysis as follows:
As an initial matter, it seems glaringly obvious to the Court that
nudity should be considered a particular vulnerability. Indeed,
that would seem to be the entire purpose of making victims
disrobe. It is designed to make people feel vulnerable. While
in theory a naked victim would [be] just as capable of seeking
help, fighting back or escaping harm as a clothed victim, this
vulnerability is more psychological. . . . [T]he victims’ nudity
was a substantial factor for the Defen dant and his accomplice
to carry out their robbery. Simply put, the victims’ nudity was
not necessary to carry out the robbery, but it helped, because it
made the victims feel more vulnerable. . . . [I]t would be easier
to get [the victim] to [open the sa fe] if he was at a
psychological disadvantage.

It was no coincidence that the victim s were naked during the crime . The victims
were forced to undress at gunpoint, after being awakened in the middle of the night by the
sound of two men breaking into their home . Rabold and his accomplice not only created

10
the vulnerability, but used it to further manipulate the situation to rob the victims in the
privacy of their home, causing a psycholo gical disadvantage in the victims and limiting
their ability to seek help or fight back. See Mohamed, 779 N.W.2d at 98 (describing
particular vulnerability as a condition that hinders a victim from seeking help); see also
Hart, 477 N.W.2d at 740 (finding “invasion of a victim’s zone of privacy . . . is an
aggravating factor to consider for an upward departure”) . The district court did not err in
concluding that the victims’ nudity was a substantial factor in the completion of the crime.
Accordingly, we a ffirm the district court’s grant of an upward departure based on the
victims’ particular vulnerability of being forced to fully undress at gunpoint.
II. The distric t court abused its discretion by imposing a greater -than-
double departure.

Rabold argues next that the district court abused its discretion by sentencing him to
the statutory maximum term of 240 months.
“Once we determine as a matter of law that the district court has identified proper
grounds justifying a challenged departure, we review its decision whether to depart for an
abuse of discretion.” Dillon, 781 N.W.2d at 595. “Despite having general discre tion to
make departure decisions, the district court has less discretion to decide the length of the
upward departure than it does to decide whether to depart: The shorter the departure, the
greater the deference given to the district court’s discretion.” Id. at 596. Greater discretion
is given when the sentence falls between the presumptive sentence and double the
presumptive sentence. Id.; see also State v. Evans , 311 N.W.2d 481, 483 (Minn. 1981).

11
We afford less deferenc e to sentences that are greater than double the presumptive
sentence. See Dillon, 781 N.W.2d at 596.
“Only in cases of severe aggravating circumstances may the district court impose a
greater-than-double departure from the presumptive sentence.” State v. Shattuck , 704
N.W.2d 131, 140 (Minn. 2004) (emphasis added) (quotation omitted). While there is no
“easy-to-apply test” to make this de termination, our decision “must be based on our
collective, collegial experience in reviewing a large number of criminal appeals from all
the judicial districts.” State v. Norton , 328 N.W.2d 142, 146 –47 (Minn. 1982); see also
Dillon, 781 N.W.2d at 597 (applying test at this court).
In sentencing Rabold to a greater -than-double departure , the district court found
“substantial and compelling reason s” to grant the upward departure, but failed to address
whether “severe and aggravating circumstances” exist ed to justify the more than double
durational departure.
In order to affirm the greater-than-double departure, we would need to find
circumstances so severe that this case is “one of the extremely rare cases in which more
than a double durational departure is justified.” Norton, 328 N.W.2d at 146. Although the
circumstances here support an upward departure as the victims were particularly vulnerable
because they were subjected to mortal fear and humiliation, we cannot conclude that this
case is one of those “extremely rare cases.” Our analysis is guided by a review of cases in
which a greater-than-double departure was warranted. Because Minnesota appellate courts
have yet to address a greater-than-double departure in an aggravated robbery case, we look
to cases addressing this issue with other crimes for guidance.

12
In Norton, the supreme court upheld a greater -than-double departure when Norton
kidnapped a five-year-old girl from her front lawn and sexually abused her. 328 N.W.2d
at 147. The supreme court used its prior decision in State v. Partlow, 321 N.W.2d 886
(Minn. 1982), for comparison. In that case, the supreme court reversed a greater -than-
double departure. 321 N.W.2d at 887 . Although the defendant in Partlow was charged
with a higher severity crime when he sexually penetrated a two-and-one-half-year-old girl
with his finger, the supreme court found that Norton’s crime was more severe because he
kidnapped his victim from her front lawn and proceeded to terrorize her. Norton, 328
N.W.2d at 147. Because “[p]arents cannot protect their children from people like [Norton]
without turning their yards into the neighborhood equivalent of a police state,” the supreme
court found severe and aggravating circumstances to warrant the greater -than-double
departure. Id.
Notably, in Perkins v. State , the defendant knew he had “full -blown AIDS” when
he raped the victim, essentially handing her a “death sentence” by passing to her the human
immunodeficiency virus (HIV). 559 N.W.2d 678, 692 (Minn. 1997). T he supreme court
upheld the district court’s greater-than-double departure. Id.
In State v. Glaraton, the supreme court found severe and aggravating circumstances
were present when the defendant “stuck the gun in the victim’s mouth and in his rectum,
causing the victim to think he was going to die a horrible death.” 425 N.W.2d 831, 834
(Minn. 1988). The victim was also subjected to multiple acts of penetration and “gratuitous
physical injury.” Id. The defendant urinated on the victim’s face and then made him lie in
it. Id. The defendant also ridiculed the victim for his religious beliefs. Id. Based on

13
Glaraton’s appalling behavior, the supreme court reinstated his greater-than-double
sentencing departure. Id. at 835.
A number of first-degree assault cases also provides guidance. In Dillon, we upheld
a greater-than-double departure when the defendant struck an d kicked his wife while she
lay on the floor. 781 N.W.2d at 591. The beating was so severe that his wife needed life-
saving surgery, spent three weeks in intensive care, and then required another month in the
hospital. Id. Her injuries were so significant that she lost her sense of smell and the feeling
in half of her face, and her vision was blurry because one eye was pushed farther back in
her skull. Id. at 602. She lost part of her large intestine, making it difficult for her to
control her bowels. Id. Doctors also had to remove her gallbladder and part of her liver.
Id. at 602.
In State v. Leonard , this court upheld a greater -than-double departure when the
defendant committed continued assaults on an infant. 400 N.W.2d 206, 210 (Minn. App.
1987). Leonard admitted that he assaulted the infant on more than 20 occasions from the
time she was three- to four-weeks old until she was nearly six months old. Id. And he
continued to assault her even after she was hospitalized and was in a fragile physical and
mental condition. Id. In State v. Steinhaus, a father severely beat his five -week-old son
over two days. 405 N.W.2d 270, 270 –71 (Minn. App. 1987). On the first day, the father
struck the infant five times with his open hand, causing the “infant’s eyes to turn black and
blue almost immediately.” Id. at 270. The next day, the father “repeatedly struck the baby
on the cheeks,” and when the baby bega n crying, he “began punching the baby in the

14
stomach” until the baby suddenly became limp. Id. at 271. T his court upheld a greater -
than-double departure as the circumstances were “unusually severe.” Id.
Based upon our collective collegial experience an d a review of the “extremely rare
cases” when such departures are permitted, we reverse the district court’s imposition of a
greater-than-double departure under these facts . We note that, at one point during the
robbery, Rabold covered the naked victims w ith a bathrobe and stopped his accomplice
from further committing a sexual assault. While we in no way minimize what the victims
experienced that night, the circumstances here—being forced to undress—are not so severe
as to be considered the extremely rar e case in which a greater -than-double departure is
warranted.
D E C I S I O N
A district court may grant an upward sentencing departure based on a victim’s
particular vulnerability when the victim is forced at gunpoint to disrobe during the
commission of a crime. For that reason, we affirm Rabold’s upward sentencing departure.
But we reverse the greater-than-double departure and remand for resentencing consistent
with this opinion.
Affirmed in part, reversed in part, and remanded.