State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1677

State of Minnesota,
Respondent,

vs.

Jennifer Lynn Baldwin,
Appellant.

Filed April 18, 2022
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-18-23849

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
A jury found appellant guilty of two co unts of felony second-degree murder in
connection with the death of a nine-mont h-old child. In this appeal, following
postconviction proceedings, appellant argues that she is entitled to a new trial because the
2
district court abused its disc retion by denying her request to postpone the scheduled trial
due to the unavailability of an expert witness. In the alternative, she argues that a new trial
is required because she received ineffective as sistance of trial counsel. Relatedly, she
contends that the district court erred by denying her postconviction request for funds to
retain an expert witness to support her claim of ineffective assistance of counsel. Finally,
appellant argues that her sentence must be re versed because the district court erred by
imposing an upward sentencing departure based on factors related to the victim’s age when
age was an element of the offense.
We first conclude that the district cour t did not abuse its discretion by denying
appellant’s pretrial motion for a continuance of the trial. We next conclude that appellant
did not meet her burden to demonstrate ineffe ctive assistance of counsel and would not
have met her burden even with the proposed expert testimony in postconviction
proceedings. Given this conclusion, we decline to address whether the district court erred
by denying appellant’s request for funds to retain an expert for postconviction proceedings.
Finally, we conclude that the district court abused its discretion when it imposed an upward
sentencing departure based on the victim’s particular vulnerability due to age, because the
victim’s age is an element of the underlying offense. Accordingly, we affirm in part,
reverse in part, and remand to the district court for resentencing.
FACTS
Nine-month-old C.S. tragically died af ter sustaining a serious head injury on
March 15, 2018. On that day, C.S. woke up early at home. C.S.’s father gave him a bottle
and put C.S. in bed with his mother before leaving for work around 6:50 a.m. C.S.’s mother
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woke up not too long after C.S.’s father left . She planned to drop off C.S. at appellant
Jennifer Lynn Baldwin’s house later that morning on her way to work. Baldwin regularly
took care of C.S. while his parents were at work.
Before going to Baldwin’s house, C.S.’s mother arranged to go to a friend’s house
and for the friend to watch C.S. while C.S.’s mother showered and got ready for work.
C.S.’s mother drove to the friend’s house, which was only a few minutes away, around
8:45 a.m. Right before leaving for the friend’s house, while still in the driveway at home,
C.S. vomited in the car—so much that it was dripping through the bottom of the car seat
and C.S.’s clothes were wet. C.S.’s mother changed C.S. after arriving at the friend’s
house, and the friend watched C.S. while his mother showered.
After getting ready for work, C.S.’s mother took C.S. to Baldwin’s house. They
arrived around 10:25 a.m. C. S. started crying when his mo ther handed him to Baldwin,
which was unusual. C.S.’s mother had to leave for work and left C.S. with Baldwin while
he was still crying. Because of C.S.’s unusual response, C.S.’s mother asked his father to
pick him up from Baldwin’s house early that day.
At 11:39 a.m., Baldwin called C.S.’s moth er, saying, “[Y]ou need to get here,
[C.S.’s] eyes are rolling back in his head and he won’t stop crying.” C.S.’s mother told
Baldwin to call 911 and that C.S.’s father coul d get there faster than she could. Baldwin
then called C.S.’s father, who also told Baldwin to call 911. Baldwin called 911 at
11:46 a.m. and asked the operator to send an ambulance. Police officers, who were the
first to arrive on the scene, saw that C.S. was having trouble breathing, could not hold his
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head up, and appeared lethargic and unrespons ive. An ambulance arrived at 11:58 a.m.
and immediately took C.S. to the hospital.
At the hospital, a CT scan showed that C.S. had suffered a brain injury that caused
a hemorrhage—bleeding in the brain. C.S. underwent two emergency surgeries to remove
the hemorrhage and reduce the resulting swelling. But subsequent scans showed that C.S.’s
chances of survival were “very low.” C.S. ultimately passed away on March 20, 2018.
The Hennepin County Medical Examiner’s office conducted an autopsy of C.S.
following his death. The two doctors who co nducted the autopsy fo und that C.S. had a
very severe brain injury. The doctors also noted multiple bruises, including on the left side
of C.S.’s head, the back of his right ear, his abdomen, the bicep of each arm, and his
buttocks—injuries that were no t likely caused by C.S.’s emer gency surgeries. Based on
the autopsy findings, the medical examiner’s office certified the cause of death as blunt
force trauma to the head and the manner of death as homicide.
Law enforcement officers in terviewed Baldwin on the day C.S. was hospitalized
and again on the following day. They conducted a third interview in July. During the third
interview, Baldwin admitted for the first time that she had handled C. S. “roughly.” And
she admitted that she had never handled a child as roughly as she handled C.S. on the day
in question. She explained that she had been under significant stress because of issues
involving her own children, financial concer ns, and a family member’s recent attempted
suicide. Baldwin also said that she was sleep-deprived and had not taken her ADHD
medication that morning. But she denied physically shaking C.S.
5
In September, respondent State of Minnesota charged Baldwin with two counts of
second-degree unintentional murder: one count of second-degree murder while committing
third-degree assault involving substantial bodily harm, and one count of second-degree
murder while committing third-degree assault of a victim under four. See Minn.
Stat. §§ 609.19, subd. 2(1), .223, subds. 1, 3 (2016). Baldwin pleaded not guilty, and the
district court set a trial date for June 2019.
Pretrial Proceedings
After the district court denied a motion from Baldwin to dismiss the case for lack of
probable cause, Baldwin sought an expert witness from the National Autopsy Assay Group
(NAA Group) to testify at tr ial. The NAA Group accepted the case in March 2019, and
the district court approved fu nding for the group’s services . On May 24, 2019, Baldwin
requested a continuance because an NAA Group forensic expert whom Baldwin expected
to call at trial had “recently” been hospitaliz ed. As a result, the expert was unable to
complete his forensic analysis and would be unable to testify at trial. Baldwin argued that
without the expert’s testimony she would not be able to present a complete defense. The
state objected to the continuance request. After hearing from the parties, the district court
denied the request.
Following the denial, Baldwi n took additional steps re lated to expert testimony
before the trial started. On May 30, she filed a Frye-Mack motion to challenge one of the
state’s proposed expert witnesses, which the di strict court denied. On June 3, Baldwin
requested funding and a continuance to proc ure expert assistance from a biomechanical
6
engineer. The district court denied her request for a continuance but authorized
compensation for the expert’s services.
Jury Trial and Sentencing
On June 10, 2019, the jury trial began. The state presented testimony from C.S.’s
parents, the friend who watche d C.S. before his mother dr opped him off at Baldwin’s
home, and four medical professionals: a paramedic who responded to Baldwin’s 911 call,
the neurosurgeon who operated on C.S., a nd two doctors from th e Hennepin County
Medical Examiner’s Office who conducted C.S.’s autopsy.
Both of C.S.’s parents and the friend testif ied that they knew of no incident that
could have caused C.S.’s injury before he a rrived at Baldwin’s house. And they denied
noticing any injury to C.S. in their interact ions with him on that morning or the night
before.
The medical-professional witnesses provi ded testimony about C.S.’s medical
condition, the severity of C.S .’s injuries, and his cause of death. The paramedic who
responded to Baldwin’s 911 call testified that it was immediately clear that C.S. needed to
be taken to the hospital because he was “v ery pale, limp, and did not appear to be
responding appropriately.” The paramedic also noted that C.S. suffered from a seizure on
the way to the hospital. The neurosurgeon te stified that a CT scan done at the hospital
showed that C.S. had a very large brain hemorrhage. The two doctors who conducted
C.S.’s autopsy testified about the autopsy results.
The medical-professional witnesses also testified about the possible timing of C.S.’s
injuries—the main issue disputed at trial— and the medical concept of “compensation.”
7
The paramedic who responded to Baldwin’s 911 call testified that she could not tell when
C.S. had been injured. She also testified that children will “compensate,” or not show
symptoms, after they have been injured fo r longer periods of time than adults will—
“meaning you won’t really know they’re sick until . . . th ere is something obviously
wrong . . . [so] the time that you have before they are in a fatalistic place is short.” One of
the doctors who conducted C.S.’s autopsy also testified that individuals can “compensate”
for a period of time following a brain injury before they show symptoms. The other
testified that C.S.’s injury likely occurred “hours” before C.S. was admitted to the hospital.
Finally, the neurosurgeon who performed C.S.’s surgeries testified th at the trauma that
caused C.S.’s brain injury must have happened “within a few hours of [C.S.] presenting to
the hospital.” The neurosurgeon confirmed that “children[] can accommodate certain areas
of bleeding . . . in their brain for a certain amount of time” before “everything reaches a
point where they can’t accommodate those anymore and that’s where they start becoming
symptomatic.” He testified that a child with C.S.’s injury would not be able to crawl, grab
toys, or otherwise act like a normal nine-mon th-old. On cr oss-examination, he testified
that it was “possible but unlikel y” that it could have taken up to three hours for C.S. to
show symptoms of his injury. He thought it more likely that the injury had occurred sooner
than three hours before C.S. showed symptoms.
The state also presented the expert test imony of a child-abuse pediatrician. The
child-abuse pediatrician had not treated C. S. personally but reviewed C.S.’s medical
records and talked to investigators. He testified that C.S.’s injuries were caused by abusive
head trauma, also known as sh aken baby syndrome. He explained that his opinion was
8
based on the evidence of severe trauma to C.S .’s brain, bruising on the head, and the fact
that no history of trauma or accident could explain C.S.’s injuries. He further testified that,
given the severity of the injuries, C.S. woul d have shown symptoms within “minutes” of
sustaining them—“the trauma and the onset of symptoms would be e xpected to be very
tightly tied together.” And it was “[h]ighly likely, most likely,” that C.S. was injured by
the person who was with hi m during the hour and 20 minutes before he became
unresponsive. On cross-examination, the ch ild-abuse pediatrician did confirm that
vomiting, lethargy, and agitation can be early symptoms of mild bleeding in the brain.
The defense rested without calling any wi tnesses. During closing arguments,
Baldwin’s attorney argued that C.S. could have been injured a few hours before his
symptoms started and could have been compensating—not yet showing symptoms.
Baldwin’s attorney noted that C.S. vomited in the morning before arriving at Baldwin’s
house and that vomiting is a si gn of a head injury. He also emphasized that the only
medical witness who completely ruled out a longer possible timeline, the child-abuse
pediatrician, did not actually treat C.S.
The jury found Baldwin guilty on both counts of second-degree unintentional felony
murder. Following Blakely proceedings, the jury returned special-verdict forms finding
that the state proved the following beyond a reasonable doubt: C.S. was nine months old
at the time he was injured, he was unable to defend himself as a result of his age, he was
unable to call for help, and he was unable to flee from the assault. The jury further found
that Baldwin was aware of each of these circ umstances, that she was C.S.’s caregiver at
the time of the assault, and that she failed to call 911 immediately after assaulting C.S.
9
The district court imposed an executed sentence of 255 months, an upward
durational departure, on count two—seco nd-degree unintentional murder while
committing third-degree felony assault of a victim under four. See Minn. Stat. §§ 609.19,
subd. 2(1), .223, subd. 3. The district court explained that the upward departure was based
on the jury’s Blakely findings.
Baldwin filed a timely notice of appeal. Sh e then filed a motion, which this court
granted, to stay the appeal and remand to the district court for postconviction proceedings.
Postconviction Proceedings
Following the stay of the appeal, Baldwin petitioned for postconviction relief on the
ground of ineffective assistance of counsel. She argued that “her attorneys’ failure to call
an expert witness to refute key aspects of the state’s theory” constituted deficient
performance because “[t]he case against [her] relied almost entirely on expert testimony.”
She also argued that this deficient performan ce prejudiced her because a defense expert
could have effectively refuted the child-abuse pediatrician’s damaging testimony that
C.S.’s injuries could only have occurred right before he became symptomatic.
Baldwin also filed an ex parte a pplication for funding under Minn.
Stat. § 611.21 (2020) to consult with a forens ic pathologist who could support Baldwin’s
postconviction petition as an expert witness. The district court denied Baldwin’s request,
concluding that the services requested did not “meet the statutory standard.”
Following an evidentiary hearing, the district court denied Baldwin’s postconviction
petition on the basis that Baldwi n failed to demonstrate ineff ective assistance of counsel.
We then reinstated this appeal.
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DECISION
I. The district court did not abuse its discretion by denying Baldwin’s motion for
a continuance.

Baldwin first argues that the district c ourt abused its disc retion by denying her
pretrial motion for a continuan ce due to the unavailability of a key expert witness. “The
granting of a continuance is a matter within the discretion of the district court and its ruling
will not be reversed absent a showin g of clear abuse of discretion.” State v. Smith ,
932 N.W.2d 257, 268 (Minn. 2019) (quotation omitted). “We, therefore, must determine
whether the defendant was so prejudiced in preparing or presenting a defense as to
materially affect the out come of the trial.” Id. In making this determination, we
consider the circumstances surround ing the requested continuance. State v. Miller ,
488 N.W.2d 235, 239 (Minn. 1992). Relevant considerations include the reason for the
request, any potential prejudice to the state a continuance would caus e, the number of
continuances already granted to the moving party, and th e timing of the request. See
State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (concluding that district court properly
denied request when defendan t explained that u nnamed witnesses might be willing to
testify but provided no information about th eir testimony or assuran ces that they would
testify); State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 197 9) (concluding that district
court properly denied request where state ma y have been prejudiced by loss of witness
testimony and defendant had alrea dy received five continuances); State v. Worthy ,
583 N.W.2d 270, 278 (Minn. 1998) (concluding that district court properly denied request
to substitute counsel on the first day of trial). But the central question remains whether the
11
defendant was so prejudiced as to material ly affect the outcome of the trial. See Smith,
932 N.W.2d at 268.
Baldwin argues that the following circumstan ces before the district court weighed
in favor of granting a continuance: Baldwi n had good reason for the request because her
expert witness had been hospitalized, the pros ecutor did not specify any prejudice to the
state, Baldwin had requested no other conti nuances, and the request was timely filed.
Baldwin also argues that she was prejudiced by the district court’s denial of her request
because it prevented her attorn eys from preparing an adequa te defense. She argues
specifically that if the defense had received an expert’s assistance—in preparing for trial
and cross-examination of the st ate’s witnesses and in helping to educate the jury on the
debate in the scientific community about abusive-head-trauma di agnoses—there is a
reasonable probability that the jury would have acquitted her. We are not persuaded.
First, we discern no abuse of discretion in the district court’s consideration of the
circumstances surrounding Baldwi n’s continuance request. The district court denied
Baldwin’s request for a continuance after a tho ughtful discussion of the interests at stake,
including Baldwin’s right to present a complete defense. The district court concluded that
it did not have enough facts before it to grant the request. The district court emphasized
that the length of the continuance Baldwin requested was open-ended, and Baldwin did not
adequately explain why an other expert from the NAA Group could not testify—
particularly when the expert group had more than two-months’ notice of the trial date.
Further, Baldwin was able to make her cent ral arguments at trial. Three of the
medical professionals who testified for the state acknowledged the possibility of a longer
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time period between the moment C.S. sustained his injuries and the onset of his symptoms.
Four of them testified that in fants can compensate for injuries for a period of time before
showing signs of medical distress. The jury heard all of this test imony, which supported
the defense’s theory that a different caretaker was responsible for C.S.’s injuries, and still
found Baldwin guilty. Though Baldwin denied shaking C.S., she admitted to handling him
“roughly,” and no other witnesses suggested another possible explanation for his injuries.
Finally, Baldwin has presented no eviden ce that the NAA Group expert, who was
hospitalized, would have provided testimony th at would have materially affected the
outcome of the trial if he had been available to testify. We therefore conclude that the
record fails to demonstrate that Baldwin wa s so prejudiced in prep aring or presenting a
defense as to materially affect the outcome of the trial. Th e district court did not clearly
abuse its discretion by denying Baldwin’s pr etrial motion for a continuance based on her
expert’s unavailability.
II. The district court did not abuse its di scretion by denying postconviction relief
because Baldwin received effective assistance of counsel.

Baldwin argues in the alterna tive that the district court erred when it denied her
postconviction request for a new trial based on ineffective assistance of counsel. She
contends that her convictions should be revers ed because her right to effective assistance
of counsel was impaired by her attorneys’ failure to obtain expert-witness testimony.
We review a district court’s denial of postconviction relief for an abuse of discretion
and any “emb edded issues of law” de novo. Petersen v. State , 937 N.W.2d 136, 139
(Minn. 2019). A district court abuses its discretion when it bases a ruling on an erroneous
13
view of the law or makes clea rly erroneous factual findings. Id. We therefore review
factual findings made by a dist rict court in deciding an ine ffective-assistance-of-counsel
claim for clear error. Pearson v. State, 891 N.W.2d 590, 600 (Minn. 2017). But we review
a district court’s analysis of the “performance and prejudice components of the
ineffectiveness inquiry” de novo because they involve mixed questions of law and fact. Id.
(quotation omitted).
We analyze ineffective-assi stance-of-counsel claims unde r the two-prong test set
forth in Strickland v. Washington , 466 U.S. 668, 687 (1984). State v. Ellis-Strong ,
899 N.W.2d 531, 535 (Minn. App. 2017). To prevail on su ch a claim, an appellant must
demonstrate that (1) “counsel’s performan ce fell below an objective standard of
reasonableness,” and (2) a reasonable probability exists that the outcome would have been
different but for counsel’s errors. Peltier v. State , 946 N.W.2d 369, 372 (Minn. 2020)
(quotation omitted). We need not address both prongs if one is determinative. Id. Because
the first prong is not met in this case, we limit our analysis to that prong.
Under the first prong, we examine whether counsel’s “representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. An objective standard
of reasonableness is the level of “customa ry skills and diligence that a reasonably
competent attorney would perform under similar circumstances.” Leake v. State ,
767 N.W.2d 5, 10 (Minn. 2009). There is “a strong presumption that counsel’s
performance was reasonable.” Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
Baldwin argues that her attorneys’ cond uct fell below an objective standard of
reasonableness because they failed to call an expert witness to bolster the defense and refute
14
the state’s witnesses. Baldwin points to testimony her witnesses presented at the
postconviction hearing to support her claim. Three witnesses testified at the postconviction
hearing: Baldwin’s main defense attorney, a second attorney who assisted in Baldwin’s
representation at trial, and a third attorney who testified as an expert on the standard of care
for attorneys. Baldwin’s ma in defense attorney discusse d the defense’s strategy of
presenting an expert witness to refute the state’s theory that C.S.’s last caregiver must have
caused his injuries. This included requesting a continuance when the defense learned that
the NAA Group expert would be unavailable to testify at trial. Baldwin’s defense attorney
testified that, after reviewing the hearing transcript documenting the district court’s denial
of the continuance request, it seemed clear that the district court was asking for additional
information about the na ture of the expert’s illness and how long of a continuance was
needed. The defense attorney te stified that he made a mistak e by not giving the district
court that information and that “having an expert help us prepare the case would have been
incredibly important.” The other two attorney s also testified that expert testimony was
critical to the case. The attorney who assisted with Baldwin’s trial representation testified
that he could have represented Baldwin more effectively with help from an expert. The
standard-of-care expert testified that ther e was no strategic reason not to provide the
information requested by the district court and that, by failing to provide it, Baldwin’s
attorneys’ performance fell below an objective standard of reasonableness.
In its order denying postconviction relief, the district court found that the attorneys’
testimony was not credible. The district court found that the testimony of Baldwin’s main
defense attorney regarding her ineffective-assistance-of-counsel claim was “inconsistent”
15
and “carefully tailored to benefit [Baldwin’s ] position while preserving [the attorney’s]
competency.” Specifically, the district court found “not credible” the attorney’s testimony
that he misunderstood the district court’s deni al of the continuance motion. The district
court also gave little weight to the testimony of the two other attorney s who testified. It
noted that the testimony of the expert who a ddressed the attorneys’ standard of care was
not credible because the expert’s testimony was inconsistent with the expert’s own conduct
in cases he handled involving child abuse. The district court was also unpersuaded by the
third attorney’s testimony on the defense’s co mpetency because of his lack of experience
in criminal trials. The district court ultim ately concluded that Baldwin had not met her
burden to prove the first prong of the Strickland test.1
While we recognize Baldwin’s right to pres ent a complete defense, we agree with
the district court that Baldwin failed to meet the first Strickland prong—that her attorneys’
representation fell below an objective sta ndard of reasonableness. We reach this
conclusion for the following reasons. First, we defer to the district court’s credibility
findings on the testimony presented at the postconviction hearing and, accordingly, do not
interfere with the district court’s determination that the testimony was not persuasive. See
Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013) (stating that “[t]he postconviction court
is in the best position to evaluate witness credibility”). Next, other evidence in the record
demonstrates that Baldwin’s attorneys undert ook reasonable efforts to retain and present
an expert witness at trial. The record demonstrates that the attorneys contacted the NAA

1 The district court also concluded that Baldwin had not met her burden to prove the second
prong of the Strickland test.
16
Group within a reasonable amount of time given that the original trial strategy had been to
pursue a motion to dismiss—the district court denied Baldwin’s motion to dismiss in early
February 2019, and her attorneys reached out to the NAA Group before the end of March
after first contacting another potential expert. Further, th e attorneys could not have
predicted that the NAA Group expert whom they planned to call at trial would be
hospitalized a few weeks before trial. Finally, when the attorneys requested a continuance
following the hospitalization of the NAA Group expert, the attorneys appear to have
provided the district court with all the information they had at the time. They did not know
how long of a continuance would be require d or why no one else from the NAA Group
could testify, though they had asked for a substitute from the NAA Group. And, when the
district court denied the motion for a continuance, they sought and obtained funding for a
new type of expert, a biomechanical engine er, but did not ultimat ely present testimony
from that expert at trial.
We are not persuaded otherwise by the case law Baldwin cites to support the
argument that her attorneys were ineffective because they failed to present expert testimony
at trial. In Hinton v. Alabama, a capital murder case, the United States Supreme Court held
that defendant’s counsel was ineffective for failing to request additional funds to replace
an inadequate expert. 571 U.S. 263, 273 (2014). The Supreme Court emphasized that “the
core of the prosecution’s case was the state e xperts’ conclusion” that bullets found at the
scene had been fired from Hinton’s gun, a nd “effectively rebutting that case required a
competent expert on the defense side.” Id. The Supreme Court c oncluded that counsel’s
legal error in determining how much state funding was available to the defense to replace
17
the expert that counsel “knew to be inadeq uate” constituted deficient performance that
resulted in Hinton receiving ineff ective assistance of counsel. Id. at 274. The Supreme
Court’s conclusion that the attorney provided ineffective assistance of counsel was
therefore based on the attorney’s ignorance of a point of law central to his case. Here, by
contrast, no error of law prevented Baldwin’ s attorneys from presenting expert testimony
at trial; rather, the attorneys timely requested a continuance once they learned that the
expert witness was unavailable. And after the continuance request was denied, they
pursued other avenues, such as requesting a Frye-Mack hearing and obtaining funding for
an expert in another field.
Baldwin also relies on State v. Beecroft, 813 N.W.2d 814 (Minn. 2012). Baldwin
notes that, in Beecroft, the concurrence stated that couns el was ineffective because they
failed to assert a due-process violation when state interference prevented them from calling
a medical expert at trial. 813 N.W.2d at 857-58 (Anderson, J., concurring). Unlike the
deficient performance Baldwin alleges here, the concurrence in Beecroft emphasized a
legal error, and the expert testimony at issue in that case was precluded by state misconduct
rather than the expert’s unavailability. Baldwin’s reliance on Beecroft is therefore
misguided.2
In sum, given both the strong presum ption that counsel’s performance was
reasonable and the deference owed to th e district court’s negative credibility
determinations, we conclude that Baldwin ha s failed to demonstrate that her attorneys’

2 Baldwin also relies on nonbinding case law from other jurisdictions, which we decline to
address.
18
representation fell below an objective standa rd of reasonableness as required under
Strickland’s first prong. Because Baldwi n has failed to satisfy the first Strickland prong,
we decline to consider the second Strickland prong. We conclude that Baldwin was not
deprived of her right to effective assistance of counsel.
III. We need not address whether the district court abused its discretion by denying
Baldwin’s request for funds to retain an expert in postconviction proceedings.

Baldwin also argues that the district court erred by denying her request for funds to
retain an expert to testify in postconvicti on proceedings under Minn. Stat. § 611.21. She
argues that, based on this error, remand is appropriate for further proceedings at which she
could introduce favorable expert testimony. This testimony woul d theoretically have
supported the defense’s view that presenting expe rt testimony at trial to refute the state’s
expert testimony on the timing of C.S.’s injuries could have led to a different outcome—
the second Strickland prong.
Because we conclude that Baldwi n failed to establish the first Strickland prong in
her ineffective-assistance-of-counsel claim, any error with respect to funding for an expert
witness to testify to the second Strickland prong in postconviction proceedings would not
affect our analysis. Accordingly, it is not necessary to address this argument, and we
decline to do so.
IV. The district court abused its discre tion by imposing an upward sentencing
departure based on the victim’s age because it is an element of the offense.

Finally, Baldwin argues that her sentence must be reversed because the district court
abused its discretion by imposing an upward durational sentencing departure based on its
determination that the victim’s age was an aggravating factor. Specifically, Baldwin
19
argues that basing an upward departure on C.S.’s vulnerability due to his age was erroneous
because age is an element of the offense—second-degree unintentional murder while
committing felony third-degree assault of a victim under the age of four. See Minn.
Stat. §§ 609.19, subd. 2(1), .223, subd. 3.
We review a district court’s decision to depart from a presumptive guidelines
sentence for an abuse of discretion. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
“A district court abuses its discretion wh en its reasons for departure are legally
impermissible and insufficient evidence in the record justifies the departure.” Id.
A district court may impose an upward departure from the presumptive guidelines
sentence if aggravating factors are present that “provide a substantial and compelling
reason” to do so. State v. Soto, 855 N.W.2d 303, 30 8 (Minn. 2014) (quotation omitted).
But the reasons for a departure “must not themselves be elements of the underlying crime.”
State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008 ) (quotation omitted). Therefore, a
victim’s age is not generally a permissible r eason for a departure when age is already an
element of the offense, but “i n certain cases the youth of th e victim, in conjunction with
other factors, may justify a departure.” Rairdon v. State , 557 N.W.2d 318, 327
(Minn. 1996).
Here, the district court based its upward departure of “approximately double the low
end of the box” on the aggravati ng factor that C.S. was particularly vulnerable due to his
age and that Baldwin kne w or should have known of his vulnerability. See Minn. Sent.
Guidelines 2.D.3.b(1) (2017) (listing particular vulnerability of a victim as an aggravating
factor). The district court referenced the jury’s Blakely findings in applying the factor of
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particular vulnerability. The district court r easoned that, even though the victim’s age is
an element of second-degree unintentional murder while committing third-degree felony
assault of a victim under the age of four, “the aggravating factors still apply” in this case
because “[a] nine-month-old is significantly more vu lnerable than even . . . a three-year-
old toddler.”
Baldwin argues that the district court impr operly considered C.S.’s age as a basis
for departure because the elements of the offense already “account for the vulnerability of
a child under four.” Baldwin acknowledges that age may be a proper consideration as an
aggravating factor even when it is an element of the offense, as this court found in
State v. Mohamed, 779 N.W.2d 93, 98 (Minn. App. 2010), rev. denied (Minn. May 18,
2010). In that case, the defendant was convicted of malicious punishment of a four-month-
old child under a statute prohibiting malicious punishment of a child under the age of 18.
Mohamed, 779 N.W.2d at 95, 97. This court concluded that a departure based on the
victim’s infancy was appropria te “given the broad spectru m of physical development
captured in [an] 18-year time span.” Id. at 98. Baldwin argues that her case does not
support a similar departure because there is no similarly broad spec trum of development
here—“a nine-month-old is not more vulnerable than a three-year-old to the same extent
that an infant is more vulnerable than a seventeen-year-old.” We agree.
Baldwin was sentenced on her convictio n of second-degree unintentional murder
while committing third-degree felony assault of a victim under the age of four. By statute,
a person is guilty of unintenti onal second-degree murder if th ey (1) “cause the death of a
human being,” (2) “without intent to effect the death of any person,” (3) while committing
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a felony offense. Minn. Stat. § 609.19, subd. 2(1). A person is guilty of third-degree felony
assault if they “assault[] a victim under the age of four , and cause[] bodily harm to the
child’s head, eyes, or neck, or otherwise cause[] multiple br uises to the body.” Minn.
Stat. § 609.223, subd. 3 (emphasis added). The underlying statute thus specifically defines
this crime as against very young victims rather than all minors in general. And by making
the young age of the vi ctim an element of the offense and elevating the severity of
third-degree assault to a felony where that element is present, the legislature has
demonstrated consideration of the particular vulnerability of children under four years of
age. In other words, the legislature has alre ady taken that vulnerability into account, and
the victim’s age therefore cannot form the basis for an upward sentencing departure.
We are not persuaded otherwise by the st ate’s argument that this case is not
meaningfully distinguishable from Mohamed and State v. Turrubiates, 830 N.W.2d 173,
179-80 (Minn. App. 2013), rev. denied (Minn. July 16, 2013) (similarly affirming an
upward sentencing departure for a second-degr ee felony murder conviction based on the
victim’s particular vulnerability due to thei r age despite age being an element of the
underlying offense—child endangerment resulting in substantial harm to any person under
the age of 18, Minn. Stat. §§ 609.378, subd. 1(b)(1), .376, subd. 2 (2010)). Both Mohamed
and Turrubiates involved statutes that defined the underlying offense as against a child
under the age of 18. And while there is a difference in the re lative development and
capability of a nine-month-old and a three-year-old child, that difference does not reflect
the same “broad spectrum of physical development” seen in children between the ages of
zero and 18. Even a three-year-old cannot meaningfully defend themselves from harm or
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seek help, unlike an older child or a teenager. Both Mohamed and Turrubiates are therefore
inapposite here, when the relevant statute defines the underlying offense as against a child
under the age of four. Minn. Stat. § 609.223, subd. 3.
The state also relies on State v. Beard to support its argument that C.S.’s age may
be properly considered as an aggravating factor even though it is an element of the offense.
574 N.W.2d 87 (Minn. App. 1998), rev. denied (Minn. Apr. 14, 1998). In Beard, which
involved a conviction under an earlier version of the same statute at issue here, this court
concluded that the vulnerability of the five-m onth-old victim, along with the defendant’s
violation of a position of trust as the victim’s daycare provider, supported a double upward
durational departure. Id. at 88. However, the appellant in Beard did not challenge her
sentence on the same grounds as Baldwin. Instead, she argued that the departure should
be reversed “because there are cases of physic al abuse of children in which no departure
was imposed or at least not challenged on appeal.” Id. at 92. Because Beard involved a
challenge on different grounds and did not raise the issue we consider here, Beard does not
lend us any guidance.
This case is more similar to the more recent case of Taylor v. State, 670 N.W.2d 584
(Minn. 2003). In that case, the supreme c ourt held that a three-year-old victim’s
vulnerability due to age was already taken into account by the legislature in determining
the seriousness of the offense of first-degree criminal sexual conduct, which criminalized
sexual contact with a person under 13 years of age. Taylor, 670 N.W.2d at 589 (discussing
conviction under Minn. Stat. § 609.342, subd. 1 (2002), which provides that “[a] person
who engages in sexual penetration with anothe r person, or sexual contact with a person
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under 13 years of age . . . is guilty of crimin al sexual conduct in the first degree”). As a
result, the supreme court concluded that the vulnerability of the victim based on age was
not an appropriate basis for an upward departure. Id. For similar reasons, as discussed
above, we reach the same conclusion here.
Because the crime of third-degree assault of a victim under the age of four, Minn.
Stat. § 609.223, subd. 3, includes the victim’s age as an element of the offense, we conclude
that the district court erred by considering C.S.’s vulnerability due to his age as an
aggravating factor and, therefore, abused its discretion by depa rting upward from the
presumptive guidelines sentence on that basis.
We therefore affirm the conviction but re verse the sentence and remand to the
district court for resentencing.
Affirmed in part, reversed in part, and remanded.