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This opinion is nonprecedential except as provided by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
A20-0369

State of Minnesota,
Respondent,

vs.

Jeffrey Lo,
Appellant.

Filed March 8, 2021
Affirmed
Bryan, Judge

Washington County District Court
File No. 82-CR-19-2295

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public D efender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from the judgment s of conviction for aggravated robbery and
two counts of kidnapping, appellant argues that the district court erred in imposing upward
departures for the kidnapping offenses and ordering the three sentences to run

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consecutively. Because the district court properly considered the age and particular
vulnerability of the one-year-old and three-year-old child victims in this case, we conclude
that the district court did not abuse its sentencing discretion when it imposed the departures.
Similarly, because of the unique aspects of appellant’s criminal conduct in this case, we
conclude that the district court did not abuse its sentencing discretion when it imposed
consecutive sentences.
FACTS
In June 2019, appellant Jeffrey Lo hid in the vehicle belonging to the mother of his
two daughters, ages three and one. Aft er she and the daughters got in to the vehicle and
drove away from their residence, Lo came out of hiding to confront the mother. While she
was driving, Lo argued with the mother and hit her. He ultimately took the children with
him in the vehicle, leaving the mother behind. After police managed to locate him, Lo was
arrested. Respondent State of Minnesota charged Lo with two counts of kidnapping, one
count of second-degree as sault with a dangerous weapon, and one count of violating an
order for protection (OFP) while possessing a dangerous weapon. The state subsequently
amended the complaint, adding three new charges, including one count of theft of a motor
vehicle and two counts of deprivation of parental rights. The state also replaced the second-
degree assault charge with one count of first-degree aggravated robbery. The state filed a
notice of intent to seek an upward sentencing departure based on the victims being
“particularly vulnerable du e to their young age,” the offenses being committed in the
presence of children, and the offenses occurring in a location where the victims had an
expectation of privacy.

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Lo waived his right to trial , including a trial regarding aggravating factors, and
agreed to plead guilty to both counts of kidnapping and to the aggravated robbery offense.
As part of the plea agreement, Lo agreed that the offense conduct included aggravating
factors because the child victims were particularly vulnerable given their age and inability
to flee or resist, and because the assault of the mother and theft of her vehicle occurred in
the presence of the children.
At the plea hearing, Lo admitted that he committed the offenses. Lo confirmed that
he hid in the back of the mother’s van until she had driven for a few minutes, then alerted
the mother that he was in the car and confronted her. Lo stated that he got into an argument
with the mother, “slapped her on the side of her face” and hit her “with the clip of the gun.”
Lo also admitted that after he struck the mother, she got out of the vehicle. Lo then “took
the car” and drove away. During this encounter, the two child-victims were “in the back
seat.” Lo confirmed that he parked the vehicle, took the two child victims with him, left
the vehicle behind, and spent two-to-three hours with the children.
The district court accepted Lo’s guilty pleas and ordered a presentence investigatio n
(PSI) report. The PSI indicated that there were mitigating and aggravating factors present.
For example, the report noted that Lo had “minimal criminal history” and that the offenses
were part of a single course of conduct. However, the report also emphasized that “the
child victims were too young to resis t [Lo],” that Lo assaulted the mother, “who thought
he had a weapon, ” and that he did so “ while inside the vehicle in the presence of the
children.” In addition, the PSI notes that “ the van was moving when that assault occurred,
placing all of them plus o thers on the roadways in potential harm’s way.” The report also

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described Lo’s relationship with the mother. The mother had an active OFP against Lo,
which Lo violated on the offense date. According to the PSI, as a result of the force of
Lo’s assaultive actions, the mother sustained injuries that required medical care at a
hospital. The report also noted that Lo was “unable to acknowledge” that his actions were
wrong or harmful. The PSI correctly indicated that the severity level for each of the three
offenses was eight and the criminal history score for each offense was zero. This resulted
in presumptive guidelines sentences for each of the three offenses of between 41 and 57
months. Based on the aggravating factors, the PSI a uthor recommended three consecutive
sentences, with durations of 60 months each for a total term of 180 months. Each
recommended 60 -month sentence included a three-month upward departure from the
presumptive term of 57 months.
At the sentencing hearing , both p arties accepted the calculations in the PSI as
correct. The state argued for three consecutive 60-month sentences, including the three-
month upward departures, as recommended by the probation officer in the PSI. The state
provided several reasons to supp ort its position, including the following: the children’s
ages and vulnerability, the violent nature of Lo’s conduct toward the mother, the presence
of the children when Lo struck the mother, the planning required to hide and wait inside
the mother’s van, the circumstances of the ultimate confrontation between Lo and the
police, the violation of the OFP in place at the time, and Lo’s lack of remorse and
understanding of the consequences of his actions. Lo’s counsel conceded that consecutive
sentencing was available because the court was sentencing on three separate crimes with

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separate victims. Lo’s counsel requested three, consecutive 48 -month sentences, totaling
144 months.
The district court sentenced Lo to 57 months in prison for aggravated robbery ,
within the presumptive guidelines range. Then the district court sentenced Lo to 60 months
in prison for each count of kidnapping “based on the aggravated factors that [he] admitted,
specifically the very young age of the child[ren].” Both 60-month sentences were upward
departures of three months from the top of the presumptive guidelines ranges for these
offenses. The three consecutive prison terms total 177 months. Lo appeals the district
court’s sentencing decisions.1
DECISION
Lo challenges the distr ict court decision s to depart upward, arguing that the
kidnapping offenses in this case are not more serious than the typical kidnapping offense.
Because the victims of the kidnapping offenses in this case were especially young, we
conclude that the district court did not abuse its discretion when it departed upward from
57 months to 60 months for each of the two kidnapping offenses. In addition, Lo challenges
the district court’s decisions to impose consecutive sentences, arguing that the total term
of imprisonment unfairly exaggerates the criminality of his conduct. Given the nature of
Lo’s criminal conduct in this case, we conclude that the district court did not abuse its
discretion.

1 Lo does not directly challenge the aggravated robbery sentence, which was within the
presumptive guidelines range. He indirectly challenge s this sentence, but only as part of
his challenge to the aggregate term of imprisonment.

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I. Upward Departures
The Minnesota Se ntencing Guidelines Commission has promulgated sentencing
guidelines to be used by a district court. See Minn. Stat. § 244.09 (2018). The guidelines
require district courts to impose a sentence within the presumptive sentencing range unless
there are “ substantial and compelling circumstances . . . showing that the defendant’ s
conduct was significantly more . . . serious than that typically involved in the commissio n
of the offense in question.” State v. Edwards , 774 N.W.2d 596, 601 (Minn. 2009)
(quotation omitted); see also Minn. Sent. Guidelines 2.D.1 (2019) (requiring
pronouncement of sentences within the applicable prison range absent identifiab le,
substantial, and compelling circumstances to support a departure), 2.D.3.b (2019)
(providing a nonexclusive list of aggravating fa ctors used to justify an upward departure).
Evidence relied on to prove an element of the criminal offense cannot also be relied on to
justify an upward departure. State v. Williams, 608 N.W.2d 837, 840 ( Minn. 2000).2
In this case, the district court art iculated a single reason for its decision to depart
upward by three months: the particular vulnerability of the young children. See Minn. Sent.
Guidelines 2.D.3.b.(1) (stating that a district court may properly depart upward when an
offender commits a crime against a victim who “was particularly vulnerable due to age,
infirmity, or reduced physical or mental capacity, and the offender knew or should have

2 Although Lo observes tha t the kidnapping statute differentiates between kidnapping an
adult and kidnapping a person under the age of 16, Lo does not raise a challenge to the
validity of the district court’s stated departure ground under Williams. Lo conceded that
the elements of the instant kidnap ping offenses do not preclude consideration of the
especially young ages of the child victims as a valid departure ground.

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known of this vulnerability.”).3 Because Lo does not challenge the validity of the district
court’s stated reason for departure s, we review the departure decisions for an abuse of
discretion. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010) (“Once we determine
as a matter of law that the district court has identified proper grounds justifying a
challenged departure, we review its decision whether to depart for an abuse of discretio n.”
(emphasis in original) ), review denied (Minn. May 11, 2010). We also afford great
deference to the district court regarding the extent of the departure. Id. at 596 (“We have
generally deferred entirely to the district court ’s judgment on the proper length of
departures that result in sentences of up to double the presumptive term .”) (citatio n
omitted). “The shorter the departure, the greater the defere nce given to the district court’s
discretion.” Id. The imposition of an upward durational departure will be affirmed so long
as the district court’s reasons for departing are “legally permissible and factually supported
in the record.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015) (quotation omitted).
Lo challenges the district court’s three-month upward durational departures for each
of his kidnapping offenses on the ground that his offenses were not more serious than the
typical kidnapping offense. Lo relies on a number of unpublished decisions to support this
contention. See, e.g., State v. Kost, No. A18-1770, 2019 WL 3774586, at *1 (Minn. App.
Aug. 12, 2019); State v. White, No. A16-1529, 2017 WL 2333029, at *2 (Minn. App. May
30, 2017); State v . Thao, No. A16 -0212, 2016 WL 4069327, at *1 (Minn. App. Aug. 1,

3 Lo also does not argue that the stated reason is inadequate or that a single reason is
insufficient. See State v. Solberg, 882 N.W.2d 618, 624 (Minn. 2016) (holding that a single
mitigating factor may justify a downward departure and listing cases affirming upward
departures based on a single aggravating factor).

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2016). We have reviewed these decisions and conclude that the y do not support Lo’s
position and have no bearing on our review of the district court’s decisions in this case.
The district court determined that the aspect of Lo’s conduct that distinguished it from the
typical kidnapping offenses was the extremely young ages and particular vulnerability of
the child victims. The cases cited by Lo involve kidnapping of adults, not children,
toddlers, or infants. Accordingly, none of Lo’s cited cases are persuasive or compel a
reversal of the district court’s decision to depart. Given the harm to the mother witnessed
by the children and given the especially young age and vulnerability of the ch ildren, we
conclude that the district court acted well within its discretion when it departed upward by
three months on each of the kidnapping offenses.
II. Consecutive Sentences
Lo also argues that the a ggregated term of imprisonment unfairly exaggerates the
criminality of his conduct. Given the multiple victims present, and the facts of this case,
we are not persuaded.
A district court’s decision to impose consecutive sentences is reviewed for an abuse
of discretion. E.g., State v. McLaughlin, 725 N.W.2d 703, 715 (Minn. 2007). We do not
interfere with the district court’s discretion to depart or to impose consecutive sentences
unless the sentence is disproportionate to the offense or unfairly exaggerates the criminality
of the defendant’s conduct. State v. Fardan, 773 N.W.2d 303, 322 (Minn. 2009). In cases
with multiple victims, consecutive sentences are rarely, if ever, disproportionate to the
offense. State v. Ali, 855 N.W.2d 235, 259 (Minn. 2014) .

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Lo challenges the aggregate length of the prison term imposed (177 months) by
comparing it to the presumptive guidelines sentence for second -degree unintentio nal
murder, with a criminal history score of zero (150 months). We recognize the severity of
unintentional murder, but this comparison does not persuade us to reverse the district court.
Lo’s comparison fails to account for the presence of multiple victims. Lo also overlooks
the young ages of t he child victims and the other distinguishing aspects of his conduct in
this case. As noted by the state, Lo ’s conduct includes violence against the mother, some
degree of premeditation and planning, violating an active OFP , and a lack of remorse or
understanding of the consequences of his actions. Based o n this record, we discern no
abuse of discretion by the district court in determining that the natu re of Lo’s criminal
conduct is commensurate with an aggregate term of imprisonment of 177 months.
Affirmed.