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This opinion is nonprecedential except as provided by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
A21-1121

State of Minnesota,
Respondent,

vs.

Brian Arthur Barthman,
Appellant.

Filed April 11, 2022
Reversed and remanded
Cochran, Judge

St. Louis County District Court
File No. 69DU-CR-15-4576

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

Kimberly J. Maki, St. Louis County Attorney, Na thaniel T. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant was convicted of several count s of first- and second-degree criminal
sexual conduct. The district court sent enced appellant on two of the first-degree
criminal-sexual-conduct counts, imposing consecutive 360-month prison sentences for an
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aggregate sentence of 720 months. On appeal, both this court and the Minnesota Supreme
Court affirmed appellant’s 360-month senten ce on the first count but reversed his
360-month sentence on the second count and remanded for resentencing on that count only.
On remand, the district court reduced appe llant’s sentence on the second count to a
consecutive term of 344 months, resulting in an aggregate sentence of 704 months.
Appellant now challenges the district court’s sentencing decision on remand,
arguing that the imposition of an aggregate se ntence of 704 months is unreasonable,
inappropriate, excessive, and unjustifiably di sparate. Based on our review of sentences
imposed in other similar criminal-sexual-con duct cases, we agree. We therefore reverse
appellant’s sentence on count two and remand to the district court to impose a modified
sentence of up to 240 months on that count, to be served consecutively with appellant’s
360-month sentence on count one, for an aggregate sentence no longer than 600 months.
FACTS
In 2017, following a jury tria l, Barthman was convicted of six counts of criminal
sexual conduct. The convictions were based on Barthman’s sexual abuse of his daughter,
C.B., while C.B. was between the ages of ten and 12 years old. C.B., along with her mother
and siblings, has a rare genetic mutation that affects her c ognitive development. At the
time of trial, C.B. had difficulty functioni ng independently and co mmunicating, and she
was performing well below grade level in school.
The first three counts on which Barthman was convicted involved first-degree
criminal sexual conduct. Count one was based on an incident in which Barthman engaged
in cunnilingus and vaginal penetration of C.B. while he and C.B. were on a couch in their
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home. Count two was based on an incident in which Barthman inserted a vibrator into
C.B.’s vagina. Count three was based on multiple acts of abuse, including sexual
penetration, committed over an extended period of time. And the remaining three counts
on which Barthman was convicted (four thr ough six) involved se cond-degree criminal
sexual conduct, based on three separate incidents of sexual contact. Evidence presented at
trial established that C.B.’s mother was sometimes present while Barthman sexually abused
C.B. and participated in some of the sexual abuse.
The state sought upward sentencing depart ures on the basis of two aggravating
factors: (1) C.B.’s particular vulnerability a nd (2) the particular cruelty of Barthman’s
abuse. On a special-verdict form, the jury answered “yes ” to the following
aggravating-factor questions: (1) did C.B. have a chromosomal defect; (2) did C.B. have a
cognitive developmental delay; (3) did Barthman know about these vulnerabilities; (4) was
C.B. subjected to multiple forms of sexual pe netration; and (5) was C.B. subjected to
multiple forms of sexual contact.
The district court sentenced Barthman only on counts one and two—the first two
counts of first-degree criminal sexual condu ct. The presumptive sentence range for
first-degree criminal sexual conduct, consider ing Barthman’s criminal-history score of
zero, was 144 to 172 months and the statutory maximum sentence was 360 months. Minn.
Sent. Guidelines 4.B (2012); Minn. Stat. § 609.342, subd. 2(a) (2012). Based on the jury’s
findings, the state requested that the district court impose upward durational departures on
both counts one and two. Specifically, the state asked the district court to sentence
Barthman to 360 months on count one and to a consecutive sentence of 240 months on
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count two, for an aggregate se ntence of 600 months. The di strict court agreed with the
state that both counts involve d particular vulnerability a nd particular cruelty, and it
therefore imposed upward durational departur es on each count. But the district court
imposed a more severe sentence than that requested by the state—it sentenced Barthman
to the statutory maximum sentences of 3 60 months on each count, to be served
consecutively. Each sentence constituted a greater-than-double durational departure from
the presumptive sentence. Barthman’s aggregate sentence totaled 720 months, or 60 years.
Barthman appealed his convictions and sentences on various grounds. We rejected
Barthman’s challenges to his convictions. State v. Barthman , 917 N.W.2d 119, 124-28
(Minn. App. 2018) (Barthman I), aff’d on other grounds, 938 N.W.2d 257 (Minn. 2020).
Regarding his sentences, we concluded that the district court did not err by imposing
separate sentences on counts one and two because they arose out of separate behavioral
incidents; the state provided adequate notic e of its grounds for seeking aggravated
sentences; and the district court did not a buse its discretion by imposing permissive
consecutive sentences. Id. at 128-130. We further determined that the aggravating factors
of particular cruelty and par ticular vulnerability supported upward durational departures
for both counts. Id. at 130-31. And we concluded th at “the district court properly
sentenced to the statutory maximu m [of 360 months] on count one.” Id. at 132. But,
regarding count two, we agre ed with Barthman that the consecutive 360-month sentence
was excessive. Id. We reasoned that “imposing a departure of more than double the
guidelines sentence on a consecutive sentence for a single victim is inappropriate based on
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our collective experience and our caselaw.” Id. We therefore reversed the sentence on
count two and remanded to the district court for resentencing on that count. Id.
Both Barthman and the state petitio ned for supreme court review.
State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020) ( Barthman II). Barthman again
challenged his sentences. Id. Regarding count one, the supreme court concluded that the
aggravating factors of particular vulnerability and particular cruelty supported the district
court’s imposition of a 360-month greater-than-double durational departure. Id. at 271-73.
Regarding count two, the supreme court agreed with this court that the greater-than-double
durational departure was excessive, but it reached that conclusion on different grounds.
The supreme court determined that C.B.’s pa rticular vulnerability supported an upward
durational departure on count two, but it held th at the district court abused its discretion
when it found that the particular-cruelty factor also supported an upward departure on that
count. Id. at 271-72. The supreme court explained that the record did not support a finding
of particular cruelty on count two because, unlike count one, coun t two did not involve
multiple forms of sexual penetration or sexual conduct. Id. at 271. The supreme court then
concluded that the aggravating factor of particular vulnera bility, alone, did not justify a
greater-than-double durational departure. Id. at 273-75. The supreme court accordingly
remanded to the district court to resentence Barthman on count two. Id. at 275.
Barthman also argued to the supreme co urt that his permissive, consecutive
sentences on counts one and two unfairly ex aggerated the criminality of his conduct. Id.
at 275 n.6. The supreme court declined to r each that issue because it did “not know what
new sentence the district court [would] impose” on count two on remand. Id. As a result,
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the supreme court effectively reserved the issue of whether Barthman’s aggregate sentence
was excessive for potential future consideration after his resentencing.
The district court held a resentencing hearing in August 2021. Barthman requested
a concurrent sentence of 360 months on coun t two, and the state requested a consecutive
sentence of 344 months on count two. Th e district court sentenced Barthman to
344 months’ imprisonment on count two, to be served consecutively with the 360-month
sentence on count one. Barthman’s sentence on remand totals an a ggregate 704 months,
or 58 years and eight months.
Barthman appeals.
DECISION
Barthman argues that the district court abused its discretion on remand by imposing
an aggregate sentence of 704 months becaus e the aggregate sentence is unreasonable,
inappropriate, excessive, and unjustifiably disparate. He contends that we must reverse his
sentence on count two and direct the district court to impose a shorter sentence on that
count.
We may review a defendant’s sentence to determine whether it is “inconsistent with
statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or
not warranted by the findings of fact issued by the district court.” Minn. Stat. § 244.11,
subd. 2(b) (2020). We review a district court’s sentenci ng decision for an abuse of
discretion. State v. Meyers , 869 N.W.2d 893, 900 (Minn. 2015) (reviewing length of
sentencing departure); State v. Vang , 847 N.W.2d 248, 264 (Minn. 2014) (reviewing
decision to impose consecutive sentences). “Generally, [appellate courts] will not interfere
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with a district court’s discretion in sentencing unless the sentence is disproportionate to the
offense or unfairly exaggerates the crim inality of the defe ndant’s conduct.” Vang,
847 N.W.2d at 264. Our review of senten cing decisions is “guide d by past sentences
imposed on other offenders.” State v. McLaughlin , 725 N.W.2d 703, 715 (Minn. 2007)
(quotation omitted). “[O]ur final analysis ‘must be based on our collective, collegial
experience in reviewing a large number of criminal appeals from all the judicial districts.’”
Barthman I , 917 N.W.2d at 132 (quoting Rairdon v. State , 557 N.W.2d 318, 327
(Minn. 1996)). Appellate courts have the disc retion to modify a sentence in the interests
of fairness and uniformity. State v. Vazquez , 330 N.W.2d 110, 112 (Minn. 1983); see
State v. Poole , 489 N.W.2d 537, 544 (Minn. App. 1992), aff’d, 499 N.W.2d 31
(Minn. 1993).
Here, the supreme court affirmed Barthm an’s 360-month sentence on count one,
and it determined that an upward durational departure on count two was appropriate based
on the aggravating factor of particular vulnerability. Barthman II, 938 N.W.2d at 272-73.
Barthman does not challenge these conclusions, nor could he. He further does not dispute
that consecutive sentences on counts one a nd two, combined with upward durational
departures, are permissive under the sentencing guidelines. See Minn. Sent. Guidelines
cmt. 2.F.203-.204 (2012) (stating that consecutive sentences are permissible when multiple
felony offenses are committed against a single victim and that consecutive sentences may
be combined with upward durational departur es). Instead, Barthman argues that his
aggregate sentence on remand of 704 months is excessive wh en compared to sentences
received by other offenders—an ar gument not addressed by the supreme court. He also
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asserts that his aggregate sentence is tantam ount to a life sentence because it “carries
lifetime conditional release.” He requests th at we reverse his sentence on count two and
impose a shorter sentence on that count in the range of 172 to 240 months.
Based on our collective experience and extensive review of the case law, we agree
with Barthman that his aggregate sentence of 704 months for the two counts of first-degree
criminal sexual conduct is excessive and ex aggerates the criminality of his conduct.
Barthman’s aggregate sentence far exceeds those imposed in any of our prior cases
involving multiple counts of firs t-degree criminal sexual conduct against children. For
instance, in State v. Suhon, we upheld an aggregate se ntence of 278 months, which
consisted of consecutive sentences on two coun ts of first-degree criminal sexual conduct
and one count of third-degree criminal sexual conduct, where the defendant committed an
“estimated 832 acts of sexual abuse on hi s daughter” over a ten-year period.
742 N.W.2d 16, 19-20, 24-25 (Minn. App. 2007), rev. denied (Minn. Feb. 19, 2008). In
State v. Perleberg, we upheld an aggregate sentence of 432 months, which involved three
consecutive terms of 144 months based on si x counts of first-degr ee criminal sexual
conduct, where the defendant sexually abused his daughter “in many forms, over several
years, on at least 250 occasions.” 736 N.W.2d 703, 704-07 (Minn. App. 2007), rev. denied
(Minn. Oct. 16, 2007). Another example is State v. Schauer , in which the defendant
sexually abused his stepdaughter two to thre e times per week while she was between the
ages of 15 and 18. No. A13-0500, 2014 WL 6608790, at *1 (Minn. App. Nov. 24, 2014).1

1 We note that the nonprecedential cases cited in this opinion are not binding authority. We
cite them only for their persuasive value. See City of Saint Paul v. Eldredge, 788 N.W.2d
9
Schauer was convicted of two counts each of first-degree criminal sexual conduct,
second-degree criminal sexual conduct, and thir d-degree criminal sexual conduct, and he
was sentenced to consecutive sentences of 3 12 months (an upward durational departure)
and 48 months, totaling an aggregate sentence of 360 months. Id. at *2.
We have also reversed a sentence of similar length to Barthman’s. In
State v. Kellogg, the defendant sexually abused a ch ild in his neighborhood on numerous
occasions. No. A03-16, 2004 WL 4227 03, at *4 (Minn. App. Mar. 9, 2004), rev. denied
(Minn. May 18, 2004). The district court im posed an aggregate sent ence of 717 months
for 17 separate behavioral incidents, incl uding consecutive sentences on three counts of
first-degree criminal sexual conduct, three counts of second-degree criminal sexual
conduct, ten counts of use of a minor in a sexual performance, and one count of possession
of child pornography. Id. at *4 & n.1. On appeal, we concluded that Kellogg’s aggregate
sentence was excessive and imposed a modifi ed aggregate sentence of 537 months. Id.
at *5.
Cases involving both findings of aggr avating factors and upward durational
departures are particularly instructive in this case. For exampl e, the defendant in
State v. Alejo-Rubio sexually abused his stepdaughter on more than 25 occasions while she
was between the ages of five or six and nine years old. No. A16-0689, 2017 WL 1208754,
at *1 (Minn. App. Apr. 3, 2017), rev. denied (Minn. June 20, 2017). The abuse involved

522, 526-27 (Minn. App. 2010) (noting that nonprecedentia l opinions of the court of
appeals are not binding authority but may have persuasive value), aff’d, 800 N.W.2d 643
(Minn. 2011).
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various types of penetration and resulted in the victim testing positive for a sexually
transmitted disease. Id. at *1, *3. The jury found Alejo- Rubio guilty of eight counts of
first-degree criminal sexual conduct. Id. at *1. Based on a jury finding, the district court
determined that count one involved multiple forms of penetration. Id. at *2. On appeal,
we upheld Alejo-Rubio’s 420- month aggregate sentence, whic h consisted of an upward
durational departure of 276 months on count one and a consecutive 144-month sentence
on count two. Id. at *1, *3.
In addition, in State v. Senske , the defendant sexually abused his son and
stepdaughter. 692 N.W.2d 743, 745 (Minn. App. 2005), rev. denied (Minn. May 17, 2005).
The abuse involved penetration and other forms of sexual contact on multiple occasions.
Id. Senske pleaded guilty to two counts of first-degree criminal sexual conduct. Id. The
district court found several aggravating fact ors, including victim vulnerability, planning
and manipulation, threats, abuse of a position of trust, and multiple incidents of abuse. Id.
It imposed two consecutive sentences of 216 months, both upward durational departures,
totaling 432 months. Id. On appeal, we reversed the upward durational departures because
the district court made factual findings on th e aggravating factors without affording the
defendant his rights under Blakely v. Washington, 542 U.S. 296 (2004), but we affirmed
the district court’s imposition of consecutive sentences. Id. at 746, 749.
These examples illustrate the disparity between Barthman’s aggregate sentence and
the sentences imposed in other first-degree criminal-sexual-conduct cases against children.
They show a range of aggregate sentences in such cases between 278 months and
537 months. In each of these cases, the defendant was convicted of egregious sexual abuse
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of one or more children on numerous occasions, often over many years. Yet, in each case,
the defendant ultimately received an aggregat e sentence much shorter than Barthman’s
704-month aggregate sentence.
The state urges us to uphold Barthman’s aggregate sentence, arguing that our prior
cases are not comparable to this one becau se many of those cases did not involve
aggravated circumstances and upward durational departures. But our review of the case
law demonstrates that Barthman’s aggregate sentence is disproportionate even when
compared to cases in which the district court imposed upward durational departures based
on aggravating factors. See, e.g., Senske, 692 N.W.2d at 745-46 (discussing that district
court imposed upward durational departures on two counts based on several aggravating
factors, for an aggregate sentence of 432 months, but reversing based on Blakely violation);
Alejo-Rubio, 2017 WL 1208754, at *1-2 (involving 420-month aggregate sentence and one
aggravating factor); see also State v. Mitchell , No. A21-0092, 2021 WL 4944514, at *1
(Minn. App. Oct. 25, 2021) (discussing that defendant was convicted of two counts of
first-degree criminal sexual conduct against a child and sentenced to an upward durational
departure of 288 months on count one, based on one aggravating factor, and a concurrent
216 months on count two), rev. denied (Minn. Jan. 18, 2022). Moreover, the state has not
identified any case in which an aggregate sentence based on multiple counts of first-degree
criminal sexual conduct came close to 704 months. Of the cases cited by both parties, the
longest aggregate sentence is 537 months. See Kellogg, 2004 WL 422703, at *5.
We recognize that Barthman’s actions ag ainst his daughter were horrific and
warrant a harsh sentence as recommended by the supreme court. Nonetheless, the
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aggregate 704-month sentence imposed by the district court was excessive when compared
with other similar cases and exaggerates the criminality of Ba rthman’s conduct.
Accordingly, we reverse Barthman’s 344-month sentence on count two and remand to the
district court to impose a modified sentence of up to 240 months on that count, to be served
consecutively with Barthman’s 360-month sentence on count one, for an aggregate
sentence no longer than 600 months.2
Reversed and remanded.

2 We recognize that a 240-month sentence on count two constitutes a shorter sentence on
that count than we instructed the district court to impose in Barthman I. There, we directed
the district court to resentence Barthman on count two “within th e range of 288 to 344
months.” Barthman I, 917 N.W.2d at 132. But our determ ination in that case was based
in part on our conclusion that two aggravating factors supported count two. Id. at 130-31.
Because the supreme court subsequently c oncluded that only one aggrav ating factor
supported count two, Barthman II , 938 N.W.2d at 271-72, we conclude that our prior
decision does not provide sufficient guidance on the appropriate sentence for count two.