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This opinion is nonprecedential except as provided by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
A20-0082

State of Minnesota,
Respondent,

vs.

Nicole Antoinette Miller,
Appellant.

Filed January 4, 2021
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-18-22967

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Pr esiding Judge; Larkin, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Hennepin County jury fo und Nicole Antoinette Mille r guilty of first-degree
aggravated robbery. Before the senten cing hearing, she moved for a downward
dispositional departure on the grounds that she is particularly amenable to probation and

2
that the offense was significantly less serious th an a typical first-degree robbery offense.
The district court denied the motion and imposed a sentence within the presumptive range
prescribed by the sentencing guidelines. We conclude that the district court did not err by
denying Miller’s motion and, therefore, affirm.
FACTS
On September 5, 2018, Mille r went to the Mystic Lake Casino with her sister and a
male friend, R.C. When Miller’s group arrived, they met C.S., who was playing blackjack.
When he finished playing blackjack, C.S. cashed in his chips for more than $5,000. R.C.
told C.S. that there was a girl at a nearby gas station who wanted to meet C.S., and he was
persuaded to leave the casino fo r that purpose. He left th e casino with R.C., Miller, and
her sister, in a vehicle driven by Miller’s sister.
After Miller’s sister drove past several ga s stations, C.S. sensed that something was
wrong. Miller and her sister asked C.S. for money. C.S. asked Miller’s sister to drop him
off somewhere, but she did not stop. As the car slowed down on a highway exit ramp, C.S.
tried to jump out of the moving car, but R.C. grabbed him by the neck, held him in the car,
and choked him. Miller reached over the front passenger seat and hit and grabbed C.S.’s
legs to help keep him in the car. R.C. told C.S. that he had a gun and demanded his money.
Miller took money and a phone from C.S.’s poc ket. R.C. asked Miller, “Are we clear?”;
she responded, “We’re clear.” Miller’s sister stopped the car in Eden Prairie, where C.S.
was let out of the car before it drove away. After the incident, C.S. had marks and bruises
on his head, neck, and legs.

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The state charged Miller with aiding and ab etting first-degree aggravated robbery,
in violation of Minn. Stat. §§ 609.245, subd. 1; 609.05, subds. 1, 2 (2018). The case was
tried to a jury on two days in September 2019. The jury found Miller guilty.
Before the sentencing hearing, Miller moved for a downward dispositional
departure. At the outset of the hearing, the di strict court stated that it had reviewed the
memorandum in support of the departure motion and letters of support from Miller’s family
members. The state opposed the motion and urged the district court to impose a sentence
of 41 months of imprisonment, which is the shortest sentence in the presumptive range.
The district court also received Miller’s statement of allocution. The district court denied
Miller’s motion and imposed an executed sentence of 41 months of imprisonment. Miller
appeals.
DECISION
Miller argues that the district court erred by denying her motion for a downward
dispositional departure from the presumptive sentencing range.
The Minnesota Sentencing Guidelines gene rally provide for presumptive sentences
for felony offenses. Minn. Se nt. Guidelines 2.C (2018). For any particular offense, the
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2018). A
district court “must pronounce a sentence of the applicable disposition and within the
applicable [presumptive] range , . . . unless there exist identifiable, substantial, and
compelling circumstances to support a departur e.” Minn. Sent. Guidelines 2.D.1 (2018).
“Substantial and compelling circumstances are those demonstrating that the defendant’s

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conduct in the offense of conviction was signi ficantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotations omitted).
In reviewing a departure from the applicable sentencing range, this court applies an
abuse-of-discretion standard of review. State v. Soto , 855 N.W.2d 303, 307-08 (Minn.
2014). A district court “has broad discreti on to depart” from the sentencing guidelines
“only if aggravating or mitigati ng circumstances are present.” State v. Best, 449 N.W.2d
426, 427 (Minn. 1989) (e mphasis omitted). But “if aggravating or mitigating
circumstances are not present, the trial court has no discretion to depart.” Id. One way in
which a district court may abuse its discreti on is by basing its deci sion “on an erroneous
view of the law.” Soto, 855 N.W.2d at 308 n.1 (quota tions omitted). Whether an
aggravating or mitigating circumstance is pres ent is, in essence, a question of law. See
Best, 449 N.W.2d at 427. “[T]o the extent a decision to depart turns on a question of law,
reviewing the decision for an abuse of discretion . . . calls for resolving the legal question
de novo.” Soto, 855 N.W.2d at 308 n.1; accord State v. Jackson , 749 N.W.2d 353, 357
(Minn. 2008); State v. Dentz , 919 N.W.2d 97, 101 (Minn. App. 2018); Dillon v. State ,
781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn. July 20, 2010); State v.
Grampre, 766 N.W.2d 347, 350 (Minn. App. 2009), review denied (Minn. Aug. 26, 2009).
If an aggravating or mitigating circumstance is present, an appellate court applies an abuse-
of-discretion standard of review to th e district court’s departure decision. State v.
Robideau, 796 N.W.2d 147, 150 (Minn. 2011); Best, 449 N.W.2d at 427.

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Miller’s argument for reversal has two part s. First, she argues the district court
should have granted her motio n on the ground that she is “particularly amenable to
probation.” Minn. Sent. Guidelines 2.D.3.a.7 (2018). In determining whether a defendant
is particularly amenable to probation so as to justify a downward dispositional departure,
a district court may consider, among other thin gs, “the defendant’s age, his prior record,
his remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). A district court need not discuss
all of the Trog factors if the district court deni es a motion for a downward dispositional
departure. State v. Pegel, 795 N.W.2d 251, 254 (Minn. App. 2011). Particular amenability
to probation is not established if the defendan t is only somewhat amenable to probation.
Soto, 855 N.W.2d at 308-09. Ra ther, the defendant must be “particularly” amenable to
probation in a way that “distinguishes the defe ndant from most others and truly presents
the ‘substantial[] and compelling circumstances’ that are necessary to justify a departure.”
Id. at 309 (quoting Minn. Sent. Guidelines 2.D. 1) (alteration in original). Only a “rare
case” will warrant reversal of a district court’s decision to not depart from the sentencing
guidelines on the ground of particular amenability to probation. State v. Bertsch ,
707 N.W.2d 660, 668 (Minn. 2006); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
In this case, the district court determined that Miller was not particularly amenable
to probation. The district court stated that it was “very happy” that Miller had plans for the
future but reasoned that Miller consistently had denied any participation in the offense, had
shown little remorse for her conduct, and had prior experience in the criminal justice
system. Miller contends that she establis hed her particular amenability to probation

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because she has support from those close to her, she has a good probationary record, and
she has a commitment to her future business pl ans. But the district court’s reasons for
denying this part of Miller’s departure motion—her lack of remorse and her prior criminal
record—are legally valid reasons. See Trog, 323 N.W.2d at 31. In addition, the district
court’s reasons are supported by the record. Thus, the district court did not err by
determining that Miller is not particularly amenable to probation.
Second, Miller argues that the district c ourt should have granted her motion on the
ground that the offense is significantly less serious than the typical first-degree aggravated
robbery. A downward departure may be ju stified if “the defendant’s conduct was
significantly less serious than that typically in volved in the commission of the offense.”
State v. Solberg, 882 N.W.2d 618, 624 (Minn. 2016) (quotation omitted); see also State v.
Mattson, 376 N.W.2d 413, 415 (Min n. 1985) (affirming district court’s downward
durational departure). A district court may consider offense-related factors in determining
whether either a durational or a disp ositional departure is appropriate. State v. Walker ,
913 N.W.2d 463, 468 (Minn. App. 2018) (citing State v Chaklos , 528 N.W.2d 225, 228
(Minn. 1995)).
In this case, the district court found that the offense was not significantly less serious
than the typical offense of first-degree aggravat ed robbery. The district court stated that
the victim was taken against his will and conf ined in a vehicle, was terrified, and was
injured. The district court de scribed the offense as “serious .” Miller contends that her
offense is a lower-level offense because the victim suffered only “minimal bodily harm,”
which she asserts is atypical for the offense of first-degree aggravated robbery. In response,

7
the state contends that the offense was very serious because the victim was strangled,
thought that he might die that night, and chose to jump out of a moving vehicle to get away.
Again, the district court’s reasons for denying this part of Miller’s departure motion—the
violent, threatening, and terrifying conduct of Miller and her cohorts and the impact of the
crime on the victim—are legally valid reasons. See Solberg, 882 N.W.2d at 624; Mattson,
376 N.W.2d at 415; Walker, 913 N.W.2d at 468. In additi on, the district court’s reasons
are supported by the record. Thus, the district court did not err by determining that Miller’s
offense is not significantly less serious than th e typical offense of first-degree aggravated
robbery.
In sum, the district court did not e rr by denying Miller’s motion for a downward
dispositional departure.
Affirmed.