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This opinion is nonprecedential except as provided by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
A21-0694

State of Minnesota,
Respondent,

vs.

Jordan Latrell Jefferson,
Appellant.

Filed July 18, 2022
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-20-13019

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

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Connolly , Judge; and
Halbrooks, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his convictions for felony murder and domestic assault,
arguing that the district court erred by refusing to admit a witness’s out-of-court statements
either as substantive or impeachment evidence. Appellant also argues that the district court
erred by sentencing him for two crimes that arose from a single behavioral incident and
abused its discretion by imposing an upward durational sentencing departure. Because the
district court’s decision to exclude the out-of-court statements does not constitute
reversible error, we affirm the convictions. We also affirm the basis for the upward
durational sentencing departure. But because the record does not support imposition of
separate sentences where it is unclear whether the underlying offenses arose from a single
behavioral incident, we reverse and remand for resentencing consistent with this opinion.
FACTS
The state charged appellant Jordan Latrell Jefferson with second-degree intentional
murder, second-degree unintentional murder during the commission of a felony, two counts
of felony domestic assault, and aiding an accomplice after the fact. The charges were tried
to a jury. The evidence at trial showed that in May 2020, Jefferson left a gathering with
two women, BM and OB, after a night of drinking and that the trio got into OB’s gray
Pontiac. Despite being intoxicated, Jefferson entered the driver’s seat; OB was in the
passenger seat and BM was in the back seat. Prior to driving away, Jefferson argued with
OB and struck her with his hand. Jefferson and OB continued to argue and fight while
Jefferson drove. At some point, Jefferson stopped the Pontiac, and OB got out of the car.
3
Jefferson tried to convince OB to return to the vehicle, but she refused. Jefferson then
drove into OB as she walked on the sidewalk. Her body came to rest in the front yard of a
residence.
Jefferson got out of the vehicle to assess OB’s condition. BM remained in the back
seat of the vehicle. Jefferson put OB’s body into the back seat of the Pontiac and drove
away. However, he quickly crashed the Pontiac, rendering it inoperable. BM and Jefferson
left OB in the Pontiac and walked away.
Jefferson called another woman, AR, for a ride. AR arrived in a maroon car and
picked up Jefferson and BM. They drove back to the Pontiac and checked on OB. After
concluding that OB was deceased, Jefferson, BM, and AR left the scene and went to AR’s
house. During the drive, Jefferson got angry and struck AR with a closed fist. Jefferson
told AR that OB had been hanging out the window, he got in an accident, and she “flew
out the window.” But he later told AR that he was going to “total” OB’s car, OB jumped
in front of the car, he was moving too fast to stop, and he hit OB.
BM testified against Jefferson. She said that Jefferson gets “out of character” when
he drinks and was “acting crazy that night.” She testified that Jefferson and OB got into a
heated, violent argument before leaving the gathering in the Pontiac. Jefferson began
driving recklessly, and he and OB continued to argue and fight. At some point, OB got out
of the car. Jefferson was upset and told BM he was going to “hit the pole,” referring to a
street sign. He then “blanked out,” drove the car “really fast,” and “didn’t turn.” BM
testified that Jefferson hit OB and that OB “went under the car.” Jefferson told BM he had
“f-cked up.”
4
Jefferson testified in his own defense. He claimed that BM was driving the Pontiac
when OB was struck and killed.
The defense called JW as a witness. JW lived near the location where OB was hit
and gave a statement to police several hours after the crash. Although Jefferson, BM, and
OB are Black, JW told the police that an intoxicated White female was driving the “little
silver car” at the time of the crash, that she “passed out or something” after the accident,
and that the passenger, a man, dragged her out of the car and put her in the back seat.
According to JW, the car then drove off. JW told the police that she did not see the man
because it was “really dark” outside, but she surmised that he was “probably” Black
because of the way he spoke. JW told the police that the White woman’s hair was “reddish”
and that a maroon car containing the man’s “friend” was nearby at the time of the crash.
Soon after her initial statement to the officer, JW provided another statement. She
told the police that there was no one on the street or sidewalk at the time of the crash. She
gave the police several inconsistent descriptions of the alleged White female driver, stating
that the woman had “long white hair”; that the woman had “some red hair, like it was real
dark”; and that the woman had white “brushy hair,” but it was “real short and stylish.”
At trial, JW testified that she did not recall telling the police that a White woman
was driving the silver car. The defense did not attempt to impeach JW with her prior
statements to the polic e while she was on the stand. Instead, the day after JW testified,
Jefferson moved to introduce JW’s prior statements to the police as substantive evidence
and for impeachment purposes. Jefferson indicated that he would offer JW’s statements
through an officer who had interviewed her. The district court denied Jefferson’s motion.
5
The jury found Jefferson not guilty of second -degree intentional murder, guilty of
second-degree unintentional murder during the commission of a felony (assault with a
dangerous weapon), guilty of both counts of felony domestic assault (against OB and AR),
and not guilty of aiding an accomplice in a crime after the fact. By special verdict form,
the jury found that Jefferson hit OB with a motor vehicle after she exited the vehicle and
left her in a particularly vulnerable state after hitting her.1
The district court sentenced Jefferson to 27 months in prison for domestic assault of
OB, 360 months for felony murder of OB, and 33 months for domestic assault of AR, with
the sentences to be served concurrently. The sentence for felony murder constituted an
upward durational departure, which was based on “particular cruelty.”
Jefferson appeals.
DECISION
I.
Jefferson contends that the district court violated his right to present a defense by
refusing to admit, as substantive evidence under the residual hearsay exception, JW’s prior
statements that she saw a White woman driving the car involved in the crash.
Due process requires that a defendant be afforded a meaningful opportunity to
present a complete defense. State v. Smith, 876 N.W.2d 310, 331 (Minn. 2016); see also
U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. But the right to present a complete
defense is not unlimited; a defendant must comply with the rules of evidence. State v.

1 The state had given notice of its intent to seek an upward durational sentencing departure
on the ground that the victim was treated with particular cruelty.
6
Wolf, 605 N.W.2d 381, 384 (Minn. 2000); State v. Nissalke, 801 N.W.2d 82, 102 (Minn.
2011).
A district court’s evidentiary ruling s are generally reviewed for an abuse of
discretion. State v. Davis, 864 N.W.2d 171, 179 (Minn. 2015); State v. Kelly, 435 N.W.2d
807, 813 (Minn. 1989). The abuse-of-discretion standard applies even if a “defendant
claims that the exclusion of evidence deprived him of his constitutional right to a
meaningful opportunity to present a complete defense.” State v. Zumberge, 888 N.W.2d
688, 694 (Minn. 2017). “A court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” State v. Thomas,
891 N.W.2d 612, 618 (Minn. 2017) (quotation omitted).
If evidence was erroneously excluded in violation of the defendant’s right to present
a defense, a reviewing court will reverse the resulting conviction unless the error was
harmless beyond a reasonable doubt. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
“[T]he reviewing court must be satisfied beyond a reasonable doubt that if the evidence
had been admitted and the damaging potential of the evidence fully realized, an average
jury (i.e., a reasonable jury) would have reached the same verdict.” Id. (footnote omitted).
“If, on the other hand, there is a reasonable possibility that the verdict might have been
different if the evidence had been admitted, then the erroneous exclusion of the evidence
is prejudicial.” Id.
Jefferson’s due-process argument raises a hearsay issue. Hearsay “is a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Hearsay is not
7
admissible unless permitted by an evidentiary rule or statutory exception. State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). “If a statement is not covered under a
specific hearsay exemption or exception, it still may be admitted under the ‘residual
exception’ found in Minnesota Rule of Evidence 807.” Id.
Under rule 807:
A statement not specifically covered by [r]ule 803 or
804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.

Analyzing whether a hearsay statement should be admitted under rule 807 involves
two steps. First, the district court must determine whether the statement has circumstantial
guarantees of trustworthiness by considering the totality of the circumstances. Id. at 292.
Second, the district court must determine whether the specific requirements of rule 807 are
met. Id. at 293.
In examining the trustworthiness of prior statements, district courts are instructed to
consider whether the statements were “given voluntarily, under oath, and subject to cross-
examination and penalty of perjury”; “the declarant’s relationship to the parties” and
“motivation to make the statement”; “the declarant’s personal knowledge” and “whether
the declarant ever recanted the state ment”; the existence or absence of corroborating
evidence; and “the character of the declarant for truthfulness and honesty.” Id. at 292
(quotations omitted). In State v. Ortlepp, the supreme court set forth additional factors that
8
contribute to the trustworthiness of a statement: (1) the declarant testifies, admits to making
the prior statement, and is available for cross -examination, (2) the statement is recorded,
(3) the statement is against the declarant’s penal interest, and (4) the statement is consistent
with other evidence. 363 N.W.2d 39, 44 (Minn. 1985).
Here, the district court considered the totality of the circumstances and determined
that JW’s prior statements lacked circumstantial guarantees of trustworthiness. The district
court engaged in a detailed analysis that addressed the factors set forth above and
summarized its decision as follows:
This court has read the transcript of the video clip of
[JW], Clip 1, about 10 times. This court has also read the
second transcript of the video clips, Clips 2 and Clips 3. It took
me that long to figure out what [JW] was testifying to. I found
both of these statements besides incorporating the arguments
just made by the state -- I found them confusing, I found that
there were so many discrepancies between the two statements,
I -- and, specifically, talking about just two people involved.
Also the fact that there was a maroon car present at the site -- I
believe that’s 17:31 -- and there wasn’t, besides the fact that
she consistently says it’s a [W]hite woman driving. She swore
to -- I mean, she test- -- or she stated in here that it was a
[W]hite woman. She said she was sure, and then she said she
was 100 percent sure. And the defense in this case is that
[BM] . . . is the one who was driving the vehicle.

Now, I think we all saw when [BM] appeared in court
to testify that she is a dark-skinned African American woman.
There is nothing [W]hite about her. There’s no way anyone
who is looking at that young lady on the stand could mistake[]
her for a [W]hite woman. This is confusing, it’s not helpful, it
doesn’t support the defendant’s defense, and for those reasons
that I previously stated, these statements are not to come in.
They’re unreliable. They’re inconsistent. They don’t track
anything with regards to what the rest of the testimony in case
says, other than the fact that there was a silver car and a
maroon car, and perhaps the fact that there was a woman
9
involved, but other than that, it’s unreliable. I’m not going to
allow it to be admitted into evidence. I’m also not going to
allow any reference to any of the substance contained in either
one of these statements. I don’t know what you’re going to do
or what either party’s going to do with regards to an opening
statement that was made with regards to this. That’s up to the
parties to decide how you want the court to handle that, but
there will be no closing arguments referencing anything to do
with the identification of another woman, [W]hite woman.

(Emphasis added.)
The district court did not err in determining that JW’s prior statements were not
sufficiently trustworthy. Although JW seemingly had no motive to lie and voluntarily
provided recorded statements to the police soon after the crash, her statements are
inconsistent with the evidence presented at trial. There was no other evidence of a White
female driver. Jefferson testified that BM, a Black woman, was driving. And BM testified
that Jefferson was driving. Additionally, JW did not give her statements under oath and
seemingly recanted her prior statements when speaking to a defense investigator some
months after her initial statements to police. She told the investigator that “she remembered
telling police that she thought it was a female that was driving, because at that moment all
the details pointed to what looked like a woman driving,” but after thinking about it, “it
didn’t make sense to her as to why, if a woman was driving . . . a man [got] back into the
driver’s seat.”
The district court reasoned that this case is similar to State v. Davis, 820 N.W.2d
525 (Minn. 2012). In that case, the supreme court concluded that a district court did not
err in declining to admit witnesses’ hearsay statements under the residual hearsay
exception, in part, because the statements “were not given under oath,” the declarants were
10
not subject to cross- examination or penalty of perjury, “and no other evidence
corroborate[d] their statements.” Davis, 820 N.W.2d at 527 , 537. Davis supports the
district court’s conclusion that JW’s statements were not trustworthy.
As to whether JW’s prior statements met the requirements of rule 807, the district
court determined that the statements were “offered as evidence of a material fact regarding
who was driving the vehicle,” but the district court concluded that such evidence was
“procurable through other efforts because [JW] already testified.” Moreover, given the
inconsistencies in JW’s statements, as well as the conflict between her statements, the other
evidence, and Jefferson’s defense, the district court did not err in determining that the
purpose of the rules of evidence and interests of justice would not be served by introducing
the statements. See Minn. R. Evid. 102 (stating that the rules shall be construed “to the end
that the truth may be ascertained”). In sum, the district court did not abuse its discretion
by refusing to admit JW’s prior hearsay statements as substantive evidence under the
residual hearsay exception.
We nonetheless also conclude that the alleged error was harmless beyond a
reasonable doubt. Under that standard, we “must be satisfied beyond a reasonable doubt
that if the evidence had been admitted and the damaging potential of the evidence fully
realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”
Post, 512 N.W.2d at 102 (footnote omitted).
Although JW mentioned a female driver, her statements did not support Jefferson’s
theory that BM was driving the Pontiac when it struck OB. Moreover, evidence showed
that Jefferson made numerous incriminating statements inculpating himself as the driver
11
that struck OB. He told AR that he was the driver. And Jefferson told BM’s mother that
he was sorry for what occurred, that he “knew better,” that BM “had nothing to do with it,”
and that he was going to turn himself in to law enforcement. Additionally, BM’s and AR’s
testimony was largely consistent and pointed to Jefferson’s guilt. Lastly, BM’s mother
testified that she saw Jefferson driving when Jefferson, OB, and BM left the gathering. We
are satisfied beyond a reasonable doubt that if J.W.’s statements had been admitted, the
jury would have reached the same verdict.
II.
Jefferson also contends that the district court violated his right to present a complete
defense by not allowing him to impeach JW with her prior statements to police that a White
woman had been driving the car involved in the crash. Again, we review a district court’s
evidentiary rulings for an abuse of discretion, and if an error occurred, we are obligated to
reverse Jefferson’s conviction unless the error was harmless beyond a reasonable doubt.
See Kelly, 435 N.W.2d at 813; Post, 512 N.W.2d at 102.
A witness may be impeached with her prior inconsistent statement. Minn. R. Evid.
613; State v. Martin, 614 N.W.2d 214, 224 (Minn. 2000); Doe 136 v. Liebsch, 872 N.W.2d
875, 882 (Minn. 2015) . However, extrinsic evidence of the witness’s prior inconsistent
statement is not admissible unless the witness is given an opportunity to explain or deny
the statement “and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require.” Minn. R. Evid. 613(b).
A witness’s failure to recollect a prior statement may provide grounds for
impeachment with a prior statement. Martin , 614 N.W.2d at 224. Once it is established
12
that the witness does not recollect making the statement, the witness should be confronted
with the document or recording containing the statement. Price v. Grieger, 70 N.W.2d
421, 425 (Minn. 1955); see also Martin, 614 N.W.2d at 224 (noting that witness’s failure
to recall a prior statement “was sufficient foundation to impeach” with extrinsic evidence).
If the witness then denies or does not rec all making the inconsistent statement, the
statement may be offered for the purpose of impeaching the witness. Price, 70 N.W.2d at
425. If the witness admits to making the inconsistent statement, the witness has effectively
impeached herself. Id. In that case, the extrinsic evidence potentially has “no further
materiality.” Id.
Here, the defense did not follow proper procedures for impeachment with extrinsic
evidence. JW testified that she did not recall telling an officer that she saw a White woman
driving. The defense attorney then played JW a “brief clip.” We presume th at clip
contained JW’s inconsistent statement to the police. But after showing JW the clip, defense
counsel ended her direct examination and did not give JW an opportunity to explain or
deny the statements. Again, the defense could not impeach JW with extrinsic evidence of
her prior inconsistent statements unless she first denied or failed to recollect the statements
after being confronted with them. Id. That did not happen here.
Instead of attempting to impeach JW during her testimony according to the
procedure set forth in caselaw and rule, the defense sought to impeach her the following
day, after she had been excused as a witness, by proffering her statements to the police
through the testimony of an officer. The district court refused to allow that procedure. It
reasoned that the beneficial effect of JW’s prior statement would be outweighed by the
13
prejudicial effect, noting that JW had testified the prior day and that attacking her
credibility “one day later” would potentially confuse the jury.
The district court also reasoned that the defense’s effort to introduce JW’s
statements was an attempt “to introduce otherwise inadmissible hearsay.” The district
court explained, “Finally, defense counsel now seeks to introduce [JW’s] statements as
both substantive evidence and impeachment evidence. The purpose of calling [the officer]
is clear; it is to introduce otherwise inadmissible hearsay through his testimony, therefore
the statements under 613(b) are inadmissible for impeachment purposes.” The district
court’s reasoning is consistent with State v. Dexter, in which the supreme court held that a
party may not seek to introduce otherwise inadmissible evidence “in the guise of
impeachment.” 269 N.W.2d 721, 721 (Minn. 1978).
In sum, the defense’s imperfect approach to impeachment supports the district
court’s ruling for two reasons: defense counsel did not attempt to impeach JW with her
prior inconsistent statements while she was on the stand, as contemplated by the rules of
evidence and caselaw, and in doing so appears to have made an improper attempt to admit
inadmissible hearsay under the guise of impeachment. Thus, the district court did not abuse
its discretion by refusing to admit JW’s inconsistent statement for “impeachment”
purposes. Finally, for the reasons discussed in section I of this opinion, we are satisfied
that the alleged error was harmless beyond a reasonable doubt.
III.
Jefferson contends that his domestic-assault sentence for assaulting OB must be
vacated under Minn. Stat. § 609.035 (2018), because it was part of the same behavioral
14
incident as his murder of OB. The state agrees that Jefferson should not have been
sentenced for the domestic assault of OB.
Under section 609.035, subdivision 1, “if a person’s conduct constitutes more than
one offense under the laws of this state, the person may be punished for only one of the
offenses.” The statute “limits the imposition of punishment.” Munt v. State, 920 N.W.2d
410, 416 (Minn. 2018). Under the statute, “a person may be punished for only one of the
offenses that results from acts committed during a single behavioral incident and that did
not involve multiple victims.” State v. Branch, 942 N.W.2d 711, 713 (Minn. 2020). “In
determining whether a course of conduct consists of a single behavioral incident we have
considered factors of time and place and whether the segment of conduct involved was
motivated by an effort to obtain a single criminal objective.” State v. Williams, 608 N.W.2d
837, 841 (Minn. 2000) (quotation omitted).
The state has the burden of proving, by a preponderance of the evidence, that the
offenses did not occur as part of a single behavioral incident. Id. at 841-42. “Whether the
offenses were part of a single behavioral incident is a mixed question of law and fact, so
we review the district court’s findings of fact for clear error and its application of the law
to those facts de novo.” State v. Bakk en, 883 N.W.2d 264, 270 (Minn. 2016).
“Determining whether multiple offenses are part of a single behavioral incident is not a
mechanical exercise, but rather requires an examination of all the facts and circumstances.”
Id. (quotation omitted).
Jefferson’s argument on appeal focuses on the traditional factors of time and place
and whether the segment of conduct involved was motivated by an effort to obtain a single
15
criminal objective. The state takes a different approach, consistent with its position at
sentencing. In district court, the state argued that it was unclear whether the offenses at
issue should “merge” because there was no way of knowing whether the jury concluded
“that the assault was with the car or . . . in the car where [Jefferson] was striking [OB].”
Nonetheless, the district court found that the domestic assault of OB “occurred first” as a
distinct criminal act and concluded that it could impose sentences for both of the offenses
against OB.
The district court’s reasoning presumes that the jury found Jefferson guilty of
domestic assault based on his act of striking OB with his hand, and not his act of striking
OB with the vehicle. But t he verdict form did not specify which of Jefferson’s acts
constituted domestic assault. In fact, during its deliberations, the jury asked the district
court whether the domestic-assault charge involving OB was “defined” as Jefferson hitting
OB “with his hand” or “with the car.” The district court responded that the jury “may
consider all evidence alleged to have occurred at any time between” Jefferson and OB.
Thus, as the state noted at sentencing, the jury could have concluded that Jefferson’s act of
hitting OB with the car constituted both domestic assault and felony murder. If that was
the jury’s conclusion, the proved domestic assault and felony murder arose from a single
behavioral incident.
Because the state has not attempted to show that the felony domestic assault and
felony murder crimes against OB arose from separate behavioral incidents, and because
there is no way of knowing whether the guilty verdicts for those offenses were based on
the single act of striking OB with the vehicle, we cannot say that the record supports a
16
separate sentence for the domestic-assault conviction involving OB. We therefore reverse
and remand for the district court to vacate the sentence for domestic assault against OB.
On remand, if Jefferson’s sentence for domestic assault of OB contributed to the
criminal-history score used in determining his sentences for felony murder of OB and
domestic assault of AR, the district court must correct his criminal-history score and
resentence Jefferson based on that score. See Minn. Sent. Guidelines 2.B.1 (Supp. 2019)
(stating that the sentencing court is to assign a “particular weight” for each felony
conviction “provided that a felony sentence was stayed or imposed before the current
sentencing”); State v. Hernandez, 311 N.W.2d 478, 479, 481 (Minn. 1981) (concluding, in
a case in which the defendant was sentenced on the same day for three separate and distinct
offenses, that the district court could consider the first two convictions in determining the
defendant’s criminal-history score for the third conviction); State v. Huynh, 504 N.W.2d
477, 484 (Minn. App. 1993) (“[T]he Hernandez method cannot be used to increase a
defendant’s criminal history score unless sentencing for more than one offense is permitted
under section 609.035.”), aff’d, 519 N.W.2d 191 (Minn. 1994).
IV.
Finally, Jefferson contends that the district court abused its discretion by imposing
an upward durational departure when sentencing him for felony murder.
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. 2019). “Substantial and
compelling circumstances,” also called aggravating factors, “are those showing that the
17
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 (Minn.
2009) (quotation omitted).
A single aggravating factor may support an upward durational departure. State v.
Solberg, 882 N.W.2d 618, 624 (Minn. 2016). But a district court “may not base an upward
departure on facts necessary to prove elements of the offense being sentenced” or “on facts
that, while not necessary to satisfy the elements of the offense in question, were nonetheless
contemplated by the legislature when it set the punishment for the offense being
sentenced.” Edwards, 774 N.W.2d at 602.
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); State v. Soto, 855
N.W.2d 303, 307-08 (Minn. 2014). “A district court abuses its discretion when its reasons
for departure are legally impermissible and insufficient evidence in the record justifies the
departure.” Solberg, 882 N.W.2d at 623. W e review de novo whether a particular basis
for an upward departure is legally permissible. State v. Grampre, 766 N.W.2d 347, 350
(Minn. App. 2009), rev. denied (Minn. Aug. 26, 2009).
The facts necessary to support an upward departure from the presumptive guidelines
sentence must be found by the fact-finder or admitted by a defendant. State v. Stanke, 764
N.W.2d 824, 828 (Minn. 2009); State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005).
Here, the jury found by special verdict form that Jefferson hit OB with a motor vehicle
after she exited the vehicle and that he left her in a particularly vulnerable state after hitting
her. The district court’s stated reason for the departure was particular cruelty based on
18
Jefferson’s act of hitting OB with the car. Particular cruelty is among the aggravating
factors specifically listed in the sentencing guidelines; the factor applies if the victim “was
treated with particular cruelty for which the individual offender should be held
responsible.” Minn. Sent. Guidelines 2.D.3.b(2) (Supp. 2019). Particular cruelty “involves
the gratuitous infliction of pain and cruelty of a kind not usually associated with the
commission of the offense in question.” State v. Rourke, 773 N.W.2d 913, 922 (Minn.
2009) (quotations omitted).
Although the rule announced in Blakely now requires
that the facts of the case be found by a jury, it does not require
us to abandon our view that the particular cruelty aggravating
factor is a reason explaining why the facts of the case provide
the district court a substantial and compelling basis for
imposition of a sentence outside the range on the grid. We hold
that a district court must submit to a jury the question of
whether the State has proven beyond a reasonable doubt the
existence of additional facts, which were neither admitted by
the defendant, nor necessary to prove the elements of the
offense, but which support reasons for departure. But the
question of whether those additional facts provide the district
court a reason to depart does not involve a factual
determination and, therefore, need not be submitted to a jury.

Id. at 920-21 (footnote omitted).
The district court reasoned that the fact that Jefferson hit OB with the vehicle after
she exited was “not redundant with the elements of the charged offense” and “not usually
associated with the commission of the offense in question.” The district court noted that it
had “approved the question of hitting the victim with the car as an act which may suggest
particular cruelty compared to a typical felony murder” and stated that “the act of hitting
your girlfriend with a vehicle at any speed suggests particular cruelty.”
19
“The manner of use of a single deadly weapon . . . has been held sufficient to
establish particular cruelty and to justify a double or less-than-double departure.” State v.
Dircks, 412 N.W.2d 765, 768 (Minn. App. 1987), rev. denied (Minn. Nov. 24, 1987); see
also State v. Yaritz, 791 N.W.2d 138, 141, 145 (Minn. App. 2010) (concluding that the use
of chloroform as a dangerous weapon in committing a sexual assault provided a legally
permissible basis for an upward departure), rev. denied (Minn. Feb. 23, 2011). Although
“every second-degree unintentional felony murder will undoubtedly involve some degree
of cruelty,” running someone over with a car after they exit shows distinctive and markedly
unusual cruelty. Tucker, 799 N.W.2d at 586-87 (analyzing the term “particular cruelty”);
see State v. Sirek, 374 N.W.2d 481, 484 (Minn. App. 1985) (concluding that the victim was
treated with particular cruelty because she “died an extremely violent death” where “she
was dragged alongside the car for over 100 feet”), rev. denied (Minn. Nov. 26, 1985); State
v. Meyers, 853 N.W.2d 819, 826 (Minn. App. 2014) (concluding that the district court did
not abuse its discretion in departing upward where the attack was “unprovoked and
seemingly motivated by a desire to be violent simply for the sake of violence ,” which
“differ[ed] from the allegedly typical assault cases cited”), aff’d on other grounds, 869
N.W.2d 893 (Minn. 2015).
This court’s nonprecedential decisions are also instructive. Although such decisions
are not binding authority, they may be persuasive authority. Dynamic Air, Inc. v. Bloch,
502 N.W.2d 796, 800- 01 (Minn. App. 1993). Consideration of nonprecedential opinions
is appropriate here because the goal of the sentencing guidelines is “uniformity,
proportionality, rationality, and predictability in sentencing.” Minn. Stat. § 244.09, subd.
20
5 (2020); see also State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002) (“In light of a
court’s discretion in sentencing, the sentencing guidelines were created to assure
uniformity, proportionality, rationality, and predictability in sentencing.”). Consideration
of sentencing departures in both precedential and nonprecedential opinions of this court
helps to achieve those goals. See Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989)
(explaining that in “the final analysis, our decision whether a particular durational
departure by a trial judge was justified must be based on our collective, collegial experience
in reviewing a large number of criminal appeals from all the judicial districts” (quotation
omitted)).
Jefferson senselessly ran over OB after she exited the car and extricated herself from
a dangerous situation: Jefferson was driving while intoxicated, was arguing with OB, and
had struck OB with his hand. In State v. Carothers, we upheld a sentencing departure for
a first-degree assault conviction partly because the defendant acted with particular
callousness where he accelerated his car, drove toward the victim, hit the victim, drug the
victim a short distance, and ran the victim over. No. C7-98-242, 1998 WL 695021, at *4-
5 (Minn. App. Oct. 6, 1998). In State v. Boswell, we affirmed a departure partly based on
particular cruelty “because the shooting was unprovoked and was done at such close range
that the victim had no opportunity to escape. ” No. A05- 2377, 2007 WL 509388, at *5
(Minn. App. Feb. 20, 2007), rev. denied (Minn. Apr. 25, 2007). And in State v. Bergren,
we upheld a departure on the ground that an offense was particularly cruel where the
defendant shot the victim as the victim was attempting to flee. No. C9-00-1328, 2001 WL
378978, at *4 (Minn. App. Apr. 17, 2001), rev. denied (Minn. June 19, 2001).
21
In sum, precedential and persuasive authority support the district court’s conclusion
that there was a legally permissible basis for the departure in this case.
Jefferson argues that hitting OB with the car “was the very act that formed the basis
for [his] conviction.” But felony assault can be completed with any number of dangerous
weapons and in any number of ways. See Minn. Stat. § 609. 02, subd. 6 (2018) (defining
dangerous weapon, in part, as any device used in a manner “likely to produce death or great
bodily harm”). Thus, Jefferson’s use of a car as the dangerous weapon was not necessarily
an element of the crime. See State v. Blanche, 696 N.W.2d 351, 378-79 (Minn. 2005)
(“The reasons used for departing must not themselves be elements of the underlying
crime.”).
In conclusion, we affirm Jefferson’s convictions and the basis for the district court’s
upward durational departure for felony murder. But we reverse and remand for the district
court to vacate Jefferson’s sentence for felony domestic assault of OB and to resentence
Jefferson’s convictions for felony domestic assault of AR and felony murder of OB using
an adjusted criminal-history score if appropriate.
Affirmed in part, reversed in part, and remanded.