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This opinion will be unpublished and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
A19-2062

State of Minnesota,
Respondent,

vs.

John Oliver Dybedahl,
Appellant.

Filed November 30, 2020
Affirmed
Jesson, Judge

Roseau County District Court
File No. 68-CR-19-7

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

Kristy Kjos, Roseau County Attorney, Michael P. Grove r, Assistant Roseau County
Attorney, Roseau, Minnesota (for respondent)

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

Considered and decide d by Jesson, Presiding J udge; 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
JESSON, Judge
After molesting his daughter, appellant John Oliver Dybedahl asks this court to
reverse the denial of his motion for a downward dispositional departure primarily due to a
study stating that intrafamilial sex offenders have a low risk of recidivism. We affirm.
FACTS
Dybedahl pleaded guilty to criminal sexual conduct in the first degree for molesting
his daughter. At the plea hearing, Dybedahl admitted that sometime between the dates of
November 2018 and December 2018, he committed first-degree criminal sexual conduct
against his daughter by repeatedly touching her, including up to ten instances of touching
her vagina, while he was in a position of authority. The district court accepted Dybedahl’s
plea, found him guilty, and ordered a presentence investigation. The parties did not reach
a sentencing agreement. The presentencing investigator c oncluded that while Dybedahl
“verbalized remorse . . . it did not sound . . . entirely sincere,” bore “undertones of victim
blaming,” and that Dybedahl struggled to demonstrate appreciation for the reasons why he
was in trouble. The presentencing investigator recommended a sentence of 144 months.
Prior to sentencing, Dybedahl also un derwent a psychosexual evaluation. The
evaluator said that Dybedahl suffered from “s urrogate spouse syndrome,” where a parent
in a poor marital relationship develops an ove rly close or “surrogate” relationship with
their child. The evaluator recommended th at Dybedahl be rehabilitated through
community treatment since intrafamilial sex offenders have a low risk of recidivism.

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At sentencing, the court accepted the presentencing investigation and psychosexual
evaluation. The minor victim ex pressed, in an impact statement, that Dybedahl “doesn’t
believe he did anything wrong.” The victim’s mother to ld the court, recounting that her
daughter had been secretly molested for years, that Dybedahl “should receive the maximum
time and receive treatment in prison.” The state argued for an executed top-of-the-box
sentence of 172 months in prison. The state expressed concern that Dybedahl did not fully
admit his actions during his psychosexual eval uation, and emphasized the gravity of the
offense and its repetition over several years.
In response, Dybedahl sought a dow nward dispositional departure from the
presumptive execution of the 144- to 172-month sentence for conviction of criminal sexual
conduct in the first degree. Dybedahl, relying primarily on the psychosexual evaluation,
stressed that his extensive support from hi s family and his employer would help him
succeed on probation.
The district court senten ced Dybedahl to 144 mont hs, the lower end of the
presumptive range, concluding that a departure would not be appropriate for someone who
committed crimes against his daughter for three to four years. Dybedahl appeals.
D E C I S I O N
The Minnesota Sentencing Guid elines establish presump tive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (20 18). The presumptive gui delines sentence is
“presumed to be appropriate for all typical cases sharing criminal history and offense
severity characteristics.” Minn. Sent. Guide lines. 1.B.13 (2019). A district court may

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depart from the presumptive sentence only when there exist “identifiable, substantial, and
compelling circumstances to support a departure.” Minn. Sent. Guidelines. 2.D.1 (2019).
As a general rule, this court will not review a district court’s sentencing discretion
“when the sentence imposed is within the presumptive guidelines range.” State v. Delk,
781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. Jan. 10, 2010). Only in a
“rare” case will an appellate court reverse a sentencing court’s refusal to depart.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even if there ar e grounds to depart, the
district court is not required to do so. State v. Olson , 459 N.W.2d 711, 716 (Minn.
App. 1990), review denied (Minn. Oct. 25, 1990).
A district court may impose a downwar d dispositional departure from the
presumptive guidelines sent ence if a defendant has a “particular amenability to
individualized treatment in a probationary setting.” State v. Trog , 323 N.W.2d 28,
31 (Minn. 1982). In considering whether a defendant is particularly amenable to probation
so as to justify a departure, a district court may consider factors including, “the defendant’s
age, his prior record, his remo rse, his cooperation, his attitude while in court, and the
support of friends and/or family.” Id. If a defendant requests a departure, the district court
must “deliberately consider” the factors that are urged by a defendant in support of the
motion. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). If a district court denies
a defendant’s motion for a downward dispositiona l departure, the district court need not
discuss all of the Trog factors. State v. Pegel, 795 N.W.2d 251, 253–54 (Minn. App. 2011).
This court applies a very deferential standard of review to a district court’s denial of a
defendant’s motion for a departur e, and we will only reverse su ch a decision if there is a

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clear abuse of the district court’s discretion. State v. Givens , 544 N.W.2d 774,
776 (Minn. 1996).
Dybedahl offers four arguments for reve rsal. First, he argues that several Trog
factors show that he is amenable to probati on. Second, he contends that the risk of
reoffense and the projected effectiveness of community rehabilitation are central to
whether a defendant is particularly amenable to probationary treatment. Third, he argues
that the record establishes th at the intrafamilial nature of Dybedahl’s offense makes him
less likely to reoffend. Lastly, Dybedahl c ontends that the court erred in finding him
unamenable to probationary treatment.
The first argument is based on the Trog factors of his age, remorse, and support of
his family and friends. But these factors as applied here do not support departure.
Dybedahl notes that the like lihood of sex offending decrea ses with age and so, as a
45-year-old, he is unlikely to reoffend. But Dybedahl molested his daughter while he was
in his forties. This combined with the sentence occurring roughly a year after the offense
suggests that he has not aged out of offe nding. Nor is the re morse factor entirely
supportive. The presentencing investigation report casts doubt on the extent to which
Dybedahl was remorseful and accepted responsibility. These factors do not show that
Dybedahl is amenable to probation.1

1 Dybedahl argued that he has family members and friends that support him, but especially
in light of the offense being against a fami ly member, and with little other examples to
back this up, this claim is unpersuasive.

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The other three arguments rely on the results of the psychosexual evaluation. While
a court abuses its discretion by relying on “findings unsupported by evidence,” here there
is evidence in the record that supports the court’s de termination, including from
Dybedahl’s own description of the offenses. Johnson-Smolak v. Fink, 703 N.W.2d 588,
591 (Minn. App. 2005). Dybedahl’s criminal offense had a serious impact on his daughter,
which could be reasonably weighed against th e evaluator’s finding of low recidivism.
Dybedahl’s argument that because the offense was an intrafamilial act he is more amenable
to probation ignores that he knowingly used his position of authority as a father to commit
the offenses.
While Dybedahl characterizes his psychosexual evaluation as insurmountable proof
that he would succeed on probation, he does not assign error to the district court’s
decision-making process; he simply argues that the record supports a different decision.
That argument is unpersuasive because the di strict court was not re quired to depart. We
cannot classify this case as “substantial,” “compelling,” or “rare” enough to require a
departure. Kindem, 313 N.W.2d at 7.
In sum, because Dybedahl did not identif y convincing, substan tial, or compelling
justifications for his situation to be consid ered rare, we will not reverse the sentencing
court’s decision.
Affirmed.