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This opinion will be unpublished and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
A19-0460

State of Minnesota,
Respondent,

vs.

Damon Dwight Wiederhoft,
Appellant.

Filed December 16, 2019
Affirmed
Jesson, Judge

Renville County District Court
File No. 65-CR-17-368

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

David Torgelson, Renville County Attorney, Olivia, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

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

Considered and decided by Ross, Pr esiding Judge; Rodenberg, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After grabbing the steering wheel of a car driven by his girlfriend, causing it to
crash, appellant Damon Dwight Wiederhoft pleaded guilty to one count of criminal

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vehicular operation. On appeal, Wiederhoft argues that the district court abused its
discretion by denying his motion for a downwar d dispositional departure because he was
particularly amenable to prob ation and only played a minor, pa ssive role in the offense.
We affirm.
FACTS
In July 2017, Wiederhoft was a passenge r in a vehicle involved in a serious
single-car accident. The car was driven by J.R., Wiederhoft’s girlfriend. Wiederhoft was
in the front-passenger seat, and J. R.’s five children were safely restrained in the back of
the car. While J.R. was driving, she an d Wiederhoft got into an argument about
Wiederhoft’s drinking. During the argument, Wiederhoft threw a number of items both at
J.R. and out of the car. One of the children told the police that Wiederhoft grabbed the
steering wheel and yanked it, which caused the car to crash in a cornfield. J.R. was ejected
from the car and seriously injured. Due to their safety restraints, the children suffered only
minor injuries.
Blood tests taken after the accident reve aled that Wiederhoft had an alcohol
concentration of 0.143. Wiederhoft was charge d with first-degree assault, two counts of
criminal vehicular operation, and five counts of child endangerment. He agreed to plead
guilty to the charge of criminal vehicular op eration, and the state agreed to dismiss the
remaining charges. Wiederhoft entered an Alford plea1 because he could not recall actually

1 North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 168 (1970) (holding that in some
circumstances, a court may constitutionally ac cept a defendant’s guilty plea even though
the defendant maintained his innocence).

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grabbing the steering wheel due to his drunkenness and the injuries from the accident, but
conceded that the child’s testimony would be sufficient to convict him.
At sentencing, Wiederhoft moved for a downward dispositional departure. The
district court denied the motion on the record , and sentenced him to 33 months in prison,
the bottom of the presumptive sentencing range. This appeal follows.
D E C I S I O N
Wiederhoft argues that the district court abused its discretion by denying his motion
for a downward dispositional departure because he was particularly amenable to probation
and only played a minor, passive role in the offense.
Appellate courts afford a district cour t “great discretion in the imposition of
sentences and reverse sentencing decisions on ly for an abuse of that discretion.”
State v. Soto, 855 N.W.2d 303, 307- 08 (Minn. 2014) (quotatio n omitted). We will not
interfere with a district court’s decision to impose the presumptive guidelines sentence “as
long as the record shows th e sentencing court carefully ev aluated all the testimony and
information presented before making a determination.” State v. Pegel, 795 N.W.2d 251,
255 (Minn. App. 2011) (quotation omitted). When considering whether to depart from the
guidelines based on a defendant’s particular amenability to probation, a district court may
consider a defendant’s age, prior record, remorse, cooperation, attitude while in court, and
the support of friends and/or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
We first address Wiederhoft’s argument th at he warrants a dispositional departure
because of his particular amen ability to probation. “The requi rement that a defendant be
‘particularly’ amenable to probation ensures that the defendant’s amenability to probation

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distinguishes the defendant from most others and truly presents the substantial and
compelling circumstances necessary to justify a departure.” Minn. Se nt. Guidelines cmt.
2.D.303 (2016). Here, the district court fo und that while Wiederhoft presented sufficient
evidence to demonstrate his am enability to probatio n, the evidence di d not support the
finding of particular amenability required by the sentencing guidelines. See Soto ,
855 N.W.2d at 309.
As highlighted by the district court, Wiederhoft was already on probation for an
unrelated offense in Meeker County when the July 2017 cr ash occurred, and then was
charged with driving while im paired in Stearns County only a couple months after the
crash. Upon this basis, the district court did not abuse its discre tion in finding that
Wiederhoft was not particularly amenable to treatment in a probationary setting.2
Next, we move to Wiederhoft’s argument, relying principally on State v. Stempfley,
that the district court should have gran ted his motion for a downward dispositional
departure because he only played a minor or passive role in the offense. 900 N.W.2d 412,
418 (Minn. 2017); see also Minn. Sent. Guidelines 2.D. 3.a.2 (2016). “[W]hether a
defendant’s role in an offense was minor or passive depends on a comparison of the
defendant’s conduct to the conduct of other participants in the crime.” Stempfley, 900

2 Wiederhoft asserts that the district court abused its discretion by failing to make findings
and failing to address the factors set forth in Trog. However, the district court specifically
set forth its reasons for denying his departure motion on the record, even though it was not
required to do so. See State v. Van Ruler , 378 N.W.2d 77, 80 (Mi nn. App. 1985) (“[A]n
explanation is not required when the court c onsiders reasons for depa rture but elects to
impose the presumptive sentence.”).

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N.W.2d at 418. Here, while J.R. expresse d guilt over the accident, there was no other
participant charged with the crime of criminal vehicular operation, and therefore Stempfley
is not applicable. Nor is the act of grabbing the steering wheel, causing the car to careen
into a cornfield, a minor or passive act. In stead, it is the act that constituted criminal
vehicular operation.
In sum, the district court carefully co nsidered Wiederhoft’s sentencing arguments
and acted within its wide discretion in de nying his motion for a downward dispositional
departure.
Affirmed.