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This opinion will be unpublished and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
A19-1233

State of Minnesota,
Respondent,

vs.

Dushawn Lee Minor,
Appellant.

Filed May 11, 2020
Affirmed
Hooten, Judge

Olmsted County District Court
File No. 55-CR-18-103

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Jesson, Judge; and Klaphake,
Judge.

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

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from a judgment of conviction for aggravated robbery, appellant
Dushawn Lee Minor argues that the district court abused its discretion when it imposed an
upward durational departure because the robbery, which was committed by a group of three
or more active participants , did not make Minor’s crime more serious than the typical
aggravated robbery. We affirm.
FACTS
Late in the evening on December 18, 2017, Rochester police officers responded to
a report of a robbery at a tanning salon. When police arrived at the salon, officers met with
the victims, who were husband and wife. The wife, who worked at the salon, was sitting
upright on the floor, crying and bleeding fro m her head. The husband was tending to his
wife.
The victims informed the police that just past 10:30 p.m., as the wife was locking
the front door of the tanning salon, two males—one carrying a large gun—rushed up to her
and told her to open the door. The wife opened the salon’s door and was escorted by the
two males into a back office in which a safe was located . At the same time, a third male
approached the husband as he sat in his car in the parking lot and waited for the wife. The
third male tapped on the car’s window, pointed a gun at the husband, and ushere d the
husband into the store. The third male kept watch over the husband in the salon’s entry
area. All three males wore masks.

3
In the back office, one of the males pointed a gun at the wife and yelled at her to
open the safe. Although she knew the code, the wife’s hand shook too violently to enter it
correctly. The first male yelled at her again to open the safe. When she was not able to do
so, the first male cracked the gun across the wife’s head . Woozy from the blow, the wife
continued to try to open the safe as the second male approached and yelled “we got to go.”
The wife told the males the code and then blacked out as the salon’s alarm blared.
Without opening the safe, the first male and the second male left after taking cash
and a cellphone from the wife’s purse. All three males stole the husband’s car and drove
away. The victims did not see the faces of any of the males, yet the entire event was
captured by the salon’s security cameras.
At a court trial, the prosecution presented evidence that Minor was the third male
who pointed a gun at the husband. In its findings of fact, the district court determined that
it was reasonable to infer that Minor was the third male involved, and with the help of two
other individuals—one known and one unknown—Minor was guilty of one count of aiding
and abetting aggravated robbery in the first degree (with a dangerous weapon) and one
count of aiding and abetting aggravated robbery in the first degree (infliction of bodily
harm), in violation of Minn. Stat. § 609.245, subd. (1) (2016) and Minn. Stat. § 609.11,
subd. 5(a) (2016). The presumptive sentence for these offences was 68 months.
At Minor’s sentencing hearing, the prosecution requested an upward sentencing
departure. The district c ourt agreed and determined that an upward departure was
warranted because Minor’s crime was more onerous than the typical crime . The district
court sentenced Minor to 108 months. Minor appeals.

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D E C I S I O N
The district court did not abuse its discretion when it imposed an upward
durational departure.

Minor argues that the district court abused its discretion when it determined that
there were identifiable, substantial, and compelling circumstances that made Minor’s
conduct significantly more serious than the typical conduct perpetrated in a first -degree
aggravated robbery. We review an upward departure from a guidelines sentence for an
abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585–86 (Minn. 2011).
A district court must impose a sentence within the presumptive sentencing range
unless there are “identifiable, substantial, and compelling circumstances” to warrant an
upward departure. Minn. Sent. Guidelines 2.D .1 ( Supp. 2017). “Substantial and
compelling circumstances,” also called aggravating factors, “ are those showing that the
defendant’s conduct was significantly more . . . serious than that typically involved in the
commission of the offense in question.” State v. Edwards, 774 N.W.2d 596, 601 (M inn.
2009) (quotation omitted) ; see also Minn. Sent. Guidelines 2.D.3 .b (providing a
nonexclusive list of aggravating factors used to justify an upward departure). Importantly,
a district court need only find one aggravating factor to support an upward durational
departure. State v. Sol berg, 882 N.W.2d 618, 624 (Minn. 2016); see also Minn. S tat.
§ 244.10, subd. 5a(b) (2016 ) (“[T]he court may order an aggravated sentence beyond the
range specified in the sentencing guidelines grid based on any aggravating factor arising
from the same course of conduct.”).

5
One aggravating factor identified in the sentencing guidelines is when an offender
commits a crime “as part of a group of three or more offenders who all actively
participated.” Minn. Sent. Guidelines 2.D.3.b. (10). In this case, t he district court
concluded that an upward departure was warranted based on the fact that Minor’s crime
was “more onerous than the typical crime; three or more offenders participated in the crime,
including strategic planning to commit [the] robbery; and t he traumatic physical and
psychological harm caused to the victims.” Accordingly, the district court sentenced Minor
to 108 months in prison, which was an upward durational departure from the presumptive
sentence of 68 months.
Minor does not challenge the district court’s finding that Minor participated in a
robbery with two other individuals. Indeed, this determination was supported by the
victims’ testimony and video footage from the scene. Instead, Minor only challenges the
district court’s upward dur ational departure. Yet, a s an offender committing a crime “as
part of a group of three or more offenders” is explicitly identified as an aggravating factor,
Minn. Sent. Guidelines 2.D.3.b.(10), and an upward departure may be imposed based on
the finding of a single aggravating factor, Solberg, 882 N.W.2d at 624 , we conclude that
the district court was justified in imposing an upward departure based on this finding alone.
Thus, the district court did not abuse its discretion when it imposed an upward durational
departure.

6
Two additional substantial and compelling circumstance s identified by the district
court were the “excessive force used to accomplish the robbery,” 1 and “the traumatic
physical and psychological harm caused to the victims.”
The record shows that this was not merely an armed robbery. Rather, one of the
three males held a gun at the husband and another male held a gun at, and subsequently hit,
the wife’s head during the course of the robbery, causing her to lose consciousness. Adding
to the trauma of the crime, the husband was kept away from his wife while she was trapped
in the office with two other masked males. Prior to getting hit with the gun, the wife was
so scared that she could not physically open the safe despite knowing the code. The wife
indicated that as a result of her physical injuries and the trauma of the incident, she
continues to suffer from headaches and anxiety. The husband also indicated that his wife
obtained a serious brain injury and suffers from constant headaches and memory problems.
As the district court is not constra ined by the sentencing guidelines’ identified
aggravating factors when imposing an upward duration al departure, see Minn. Sent.
Guidelines 2.D.3.b (providing a nonexclusive list of aggravating factors used to justify an
upward departure), we hold that the district court did not abuse its discretion when it also
relied on the force used in the commission of th e robbery and the resulting physical and
psychological harm caused to the victims to further justify Minor’s sentence.

1 Regardless of whether Minor held a gun or inflicted pain, as he was convicted of aiding
and abetting armed robbery, he is criminally liable f or the actions of the other males as if
he had personally undertaken those actions. See Minn. Stat. § 609.05, subd. 1 (2016)
(noting that an individual is “criminally liable for a crime committed by another” if the
individual “intentionally aids . . . the other to commit the crime”).

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Given that the robbery was committed by three or more individuals, and the district
court determined that additional substantial and compelling circumstances existed to justify
Minor’s sentence, the district court did not abuse its discretion when it imposed a 108 -
month sentence.2
Affirmed.

2 Although Minor’s 108 -month sentence is longer than the presumptive sentence of 68
months, as his sentence is less than twice the presumptive sentence, we need not consider
whether severe aggravating circumstances existed so as to justify the departure. See Dillon
v. State, 781 N.W.2d 588, 596 (Minn. App. 2010) (noting that a greater than double upward
departure is warranted only in the rare case where severe aggravating circumstances exist),
review denied (Minn. July 20, 2010).