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This opinion is nonprecedential except as provided by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
A21-1049

State of Minnesota,
Respondent,

vs.

Thomas Jacob Nohner,
Appellant.

Filed June 6, 2022
Affirmed
Wheelock, Judge

Scott County District Court
File No. 70-CR-19-2508

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney (for
respondent)

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

Considered and decided by Wheelock, Presiding Judge; Jesson, Judge; and Bryan ,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant argues that the district court abused its discretion by refusing to grant
downward dispositional and downward durational departures from the presumptive
guidelines sentence based on evidence that he was amenable to probation and that his
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conduct was les s serious than that typically involved in the commission of the crime for
which he was convicted . Because the district court did not abuse its discretion by
sentencing appellant to the presumptive sentence, we affirm.
FACTS
Appellant Thomas Jacob Nohner was charged with first -degree and second -degree
criminal sexual conduct after Nohner’s then-fiancée reported to police that Nohner had
sexually assaulted her nine-year-old daughter . The child’s mother told police that she had
a “weird gut feeling” about how Nohner and the child woul d lie on the couch at home
together when the mother went to work in the evening over the course of three to four
months. On questioning, first by the mother and then by police, the child stated that while
they were cuddling on the couch under a blanket, Nohner touched her under her clothing
on the outside and inside of her vagina, on her buttocks, on her chest, and on her stomach.
The child indicated that it happened more than once and that while Nohner would touch
her, he would use his other hand to mast urbate.
Nohner entered a straight plea of guilty to first -degree criminal sexual conduct
without a sentencing agreement. When the district court questioned him about the factual
basis for the plea, Nohner admitted to some of the alleged conduct but indicated that other
of the contact was incidental. He eventually admitted that his conduct was done on purpose
and with sexual intent. The district court accepted Nohner’s plea and found him guilty of
first-degree criminal sexual conduct, ordered a presentence investigation (PSI), and
scheduled a sentencing hearing.
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Nohner participated in interviews for the PSI, during which he persisted in denying
some of the allegations but ultimately deferred to the child’s perception of what occurred
after viewing her recorded statement. The PSI included two attached reports. The first
report was from Nohner’s psychosexual evaluation and deemed him to be at below-average
risk for reoffending and a good candidate for community supervision. The second report
was a progress report from Nohner’s sex-offender treatment program and identified him as
an appropriate candidate for treatment in a community setting. The PSI recommended a
sentence of 144 months in alignment with the presumptive guidelines sentence.
Nohner moved for a downward dispositional sentencing departure based on his
particular amenability to probation, focusing on his lack of prior criminal history,
participation in treatment, low recidivism risk, remorse, and acceptance of responsibility.
He highlighted his network of social and family support and provided letters of support for
his motion from his mother, his sister, his brother, and the child ’s mother. Nohner also
moved for a downward durational departure, arguing that his conduct was less serious than
the typical first-degree criminal-sexual-conduct offense.
At the sentencing hearing, Nohner’s attorney argued for downward sentencing
departures, the state arg ued for imposition of the presumptive guidelines sentence , and
Nohner made a statement to the court on his own behalf. The district court confirmed that
it had reviewed the following information and documents: a PSI report with the attached
clinician repo rts; a sentencing memorandum that the public defender’s dispositional
advisor had prepared; a Minnesota Sentencing Guidelines Commission report on
departures for first -degree criminal sexual conduct that the defense submitted; and the
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letters in Nohner’s support. The district court determined that Nohner did not meet the
criteria to establish that he was particularly amenable to probation and that the offense was
not less serious than the typical first-degree criminal-sexual-conduct crime. The district
court declined to depart from the guidelines, sentencing Nohner to the presumptive
sentence of 144 months in prison.
Nohner appeals.
DECISION
We review a district court’s sentencing decision for an abuse of discretion. State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016). The Minnesota Sentencing Guidelines
determine presumptive sentences for felony offenses. Minn. Sent. Guidelines 2 (2018).
District courts “must pronounce a sentence of the applicable disposition and within the
applicable prison range unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1. The decision to
depart is “an exercise of judicial discretion constrained by statute or case law.” Id.
“Substantial and compelling circumstances are those that make a case atypical .” State v.
Walker, 913 N.W.2d 463, 468 (Minn. App. 2018) . We will reverse a sentencing court’s
refusal to depart only in a “rare” case . State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981).
“We will affirm the imposition of a presumptive guideline s sentence when the record
shows that the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn.
App. 2013) (quotation omitted ), rev. denied (Minn. Sept. 17, 2013) .
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I. The district court did not abuse its discretion in denying a downward
dispositional departure.

The Minnesota Sentencing Guidelines provide a nonexclusive list of factors that
may serve as reasons for a sentencing departure, of which the offender’s partic ular
amenability to probation is one factor. Minn. Sent. Guidelines 2.D.3.a(7). Particular
amenability to probation “distinguishes the defendant from most others and truly presents
the substantial and compelling circumstances necessary to justify a departure.” Minn. Sent.
Guidelines cmt. 2.D.303 (citing State v. Soto, 855 N.W.2d 303, 309 (Minn. 2014) ).
Characteristics of the offender determine whether the offender is “particularly suitable for
individualized treatment in a probationary setting.” Solberg, 882 N.W.2d at 623 (quotation
omitted).
The “Trog factors” aid the district court in determining particular amenability to
probation and include the defendant’s “age, prior record, remorse, cooperation, attitude
while in court, and support of friends or family.” State v. Gebeck, 635 N.W.2d 385, 389
(Minn. App. 2001) (citing State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982)). We have held
that for downward dispositional departures, a district court may consider both offender- and
offense-related factors. Walker, 913 N.W.2d at 468; accord State v. Chaklos, 528 N.W.2d
225, 228 (Minn. 1995). Even if a defendant would be particularly amenable to probation,
however, a district court is not required to grant a downward dispositional departure. State
v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009).
Nohner argues that substantial and compelling circumstances warranted a
downward dispositional departure and that the district court abused its discretion by failing
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to grant such a departure. Nohner relies on the reports from his psychosexual evaluation
and his sex -offender treatment program deeming him to be a good and appropriate
candidate for community-based treatment and supervision to demonstrate his am enabilit y
to probation. He further asserts that his statements of remorse at sentencing are indicative
of his amenability to probation. The district court concluded that, while Nohner may have
been amenable to probation, he was not particularly amenable such that a downwar d
dispositional departure was warranted . See Soto, 855 N.W.2d at 309 (noting that the
requirement of “particular amenability” is meant to ensure that the defendant’s amenability
to probation “distinguishes the defendant from most others and truly presents the
substantial and compelling circumstances that are necessary to justify a departure”
(quotation omitted)).
Nohner further contends that the district court failed to fully consider all of the
offender-related reasons for a dispositional departure, but t he record does not support his
argument. At sentencing, Nohner argued that in addition to the evaluators’ reports and his
remorse, other offe nder-related factors supporting departure included his cooperation
throughout the proce eding, his family support, and his concern for the victim . The state
argued that Nohner’s inability to take responsibility and be truthful about his conduct
indicated that his remorse was not genuine and that he did not demonstrate a sufficiently
low risk of reoffending to warrant a departure. In pronouncing its sentence, the district
court reflect ed on the testimony received and stated that it had reviewed the PSI report
along with the letters of support and the dispositional memorandum with supplement al
documents.
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Along with the provider evaluations, the district court considered Nohner’s
expressions of remorse at sentencing and his statements as recounted in the PSI report
downplaying his culpability. The dist rict court, which sits with a unique perspective on all
stages of a case, is properly tasked with evaluating the genuineness of a defendant’s
remorse and how much weight to give that remorse. Solberg, 882 N.W.2d at 626. And
even if the district court had found Nohner particularly amenable to probation, the grant of
a downward dispositional departure is discretionary. Olson, 765 N.W.2d at 664- 65. The
district court did not abuse its discretion by finding that there was insufficient support to
demonstrate Nohner’s particular amenability to probation based on his remorse and
suitability for community-based supervision, or any of the other factors Nohner raises here.
Nohner also suggests that the district court improperly focused on offense-related
factors i n denying a downward dispositional departure rather than solely focusing on
offender-related factors. Nohner asserts that statements the district court made at
sentencing deemphasiz e the role of rehabilitation in imprisonment , arguing that the
statements were reactive to and erroneously focused on the offense . He also points to a
recommendation in the PSI report that seems to conflate offender - and offense -related
factors by indicating that the repeated acts and the victim’s vulnerability favor
imprisonment. In fact, the district court may consider both offender - and offense -related
factors when evaluating a dispositional departure’s appropriateness. Walker, 913 N.W.2d
at 468. We conclude that , here, the district court considered all relevant offender- and
offense-related factors before it and thus did not abuse its discretion by denying Nohner’s
motion for a downward dispositional departure.
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II. The district court did not abuse its discretion in denying a downward
durational departure.

The district court also declined to grant Nohner a downward durational departure.
In contrast with dispositional departures, a district court can only consider offense-related
factors when deciding whether to grant a durational -departure request. Compare Solberg,
882 N.W.2d at 623 (“A durational departure must be based on factors that reflect the
seriousness of the offense, not the characteristics of the offender .”), with Walker,
913 N.W.2d at 468 (“For a downward dispositional departure, a district court may consider
both offender - and offense-related factors.”). “Substantial and compelling circumstances
for a durational departure are ‘those which demonstrate that the defendant’s conduct was
significantly more or less serious than that typically involved in the commission of the
crime in question.’” State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017) (quoting State v.
Leja, 684 N.W.2d 442, 450 (Minn. 2004)).
Nohner argues that the district court abused its discretion, asserting that his offense
was significantly less serious than typical first -degree criminal -sexual-conduct crimes
because his conduct did not involve force, coercion, or injuries and was not prolonged,
being alleged to have occurred over the c ourse of three or four months. Nohner supports
this argument with examples of other first-degree criminal -sexual-conduct cases that
involved a high level of violence against adult victims and cases where child victims were
subjected to multiple types of c onduct and acts persisting over a longer duration of time .
Because Nohner’s conduct shares some circumstances with the examples he provided of
criminal-sexual-conduct cases involving child victims , such as conduct involving children
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around the victim’s age, children who trusted the offenders, and abuse that occurred in the
child’s home, these examples do not support Nohner’s contention. To the contrary, these
circumstances could be aggravating factors , not mitigating ones, under the guidelines.
Minn. Sent. Guidelines 2.D.3.b(1), (14).
The defendant’s remorse, as an offender -related factor, generally does not bear on
a court’s decision regarding a durational departure. Solberg, 882 N.W.2d at 625. Remorse
that bears on the seriousness of the c onduct may be considered, but “ unless a defendant
can show that his demonstrated remorse is directly related to the criminal conduct at issue
and made that conduct significantly less serious than the typical conduct underlying the
offense of conviction, re morse cannot justify a downward durational departure.” Id. at
626. Accordingly, “showing the relevance of remorse to a durational departure will not be
an easy task .” Id. Nohner argues that by engaging in sex -offender treatment during the
pendency of the proceeding and pleading guilty to prevent additional trauma to the child
victim, he has demonstrated remorse -driven conduct relating directly to the criminal
conduct at issue, thereby making it significantly le ss serious than the typical first -degree
criminal-sexual-conduct offense, as in Solberg.
We reject this argument, as Nohner has not shown how his guilty plea or
participation in treatment are driven by remorse or serve to make his conduct significantly
less serious than the typical offense. Any remorse expressed by Nohner is not of the sort
that relates back to the original conduct and therefore does not bear on the seriousness of
the offense. See id. at 625-26. We therefore conclude that the district court acted within
its discretion in finding that Nohner’s conduct was not significantly less serious than the
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typical offense and th at no substantial or compelling circumstances exist that warrant a
downward durational departure.
Affirmed.