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This opinion is nonprecedential except as provided by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
A21-1726

State of Minnesota,
Respondent,

vs.

Cree James Diver,
Appellant.

Filed September 6, 2022
Affirmed
Slieter, Judge

Otter Tail County District Court
File No. 56-CR-20-2395

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

Michelle M. Eldien, Otter Tail County Attorney, Kathleen J. Schur, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Sli eter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant argues that t he district court abused its discretion by refusing to impose
either a dispositional or durational sentencing departure, claiming he is particularly
amenable to probation and his criminal conduct was substantially less serious than typical.
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Because the district court did not abuse its discretion by sentencing appellant within the
presumptive range, we affirm.
FACTS
On September 22, 2020, appellant Cree James Diver and his fiancée, T.H., began
arguing after T.H. discovered evidence of Diver’s infidelity on his cellphone. The two
pushed and shoved one another and then Diver punched T.H. in the mouth. Diver damaged
T.H.’s front teeth and broke a bone in her mouth, for which she obtained root canals and
partial teeth implants. The assault also resulted in stitches on Diver’s hand.
Respondent State of Minnesota charged Diver by an amended criminal complaint
with first-degree assault—great bodily harm, third-degree assault—substantial bodily
harm, and two counts of felony domestic assault. The complaint alleged that, due to
Diver’s punch, “T.H. suffered a fractured jaw and it had to be wired to correct jaw
placement.”
Pursuant to a plea agreement, Diver pleaded guilty to first -degree assault, in
violation of Minn. Stat. § 609.221, subd. 1 (2020), in exchange for dismissal of the
remaining counts, dismissal of pending criminal charges in three unrelated case files, and
the expectation that Diver would ask for a departure from the presumptive sentence. The
sentencing worksheet, included with the court-ordered presentence investigation (PSI),
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indicated that Diver had a criminal-history score of one,1 which results in a presumptive
sentence range of 84 to 117 months’ imprisonment. Minn. Sent. Guidelines 4.A (2020).
Diver moved for a dispositional departure, which the district court declined to grant.
Diver’s counsel then orally moved for a durational departure, requesting that the district
court “impose a 60-month sentence in this matter,” which the district court also denied.
The district court adjudicated Diver guilty of first-degree assault and sentenced him
to 84 months’ imprisonment, the lowest presumptive-range sentence. Id. Diver appeals.
DECISION
We review the district court’s sentencing decision for an abuse of discretion. State
v. Soto, 855 N.W.2d 303, 307 -08 (Minn. 2014); State v. Larson, 473 N.W.2d 907, 909
(Minn. App. 1991). We generally will not disturb a presumptive sentence if “the record
shows that the sentencing court carefully evaluated all the testimony and information
presented,” even if reasons for a departure exist. State v. Johnson , 831 N.W.2d 917, 925
(Minn. App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013); State v.
Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Only in a “rare” case will we reverse the
district court’s refusal to depart from a presumptive sentence. State v. Walker, 913 N.W.2d
463, 468 (Minn. App. 2018) (quoting State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)).
The sentencing guidelines provide that “departures from the presumptive sentences
established in the Sentencing Guidelines should be made only when substantial and

1 The sentencing worksheet showed that Diver had one-half custody status point and one-
and-one-half felony points. The district court, at sentencing, rounded down each partial
point resulting in a criminal-history score of one. Minn. Sent. Guidelines 2.B.102 (2020).
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compelling circumstances can be identified and articulated.” Minn. Sent. Guidelines 1.A.6
(2020).
Dispositional Departure
When considering a dispositional departure, the district court generally focuses on
the defendant as an individual. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). A
defendant’s particular amenability to probation may justify a dispositional departure. Soto,
855 N.W.2d at 308. Relevant factors for determining whether the defendant is particularly
amenable to probation include the defendant’s age, prior criminal record, remorse,
cooperation, attitude in court, and support of friends and family. State v. Trog, 323 N.W.2d
28, 31 (Minn. 1982).
Diver contends that the district court abused its discretion by denying a downward
dispositional departure, arguing that he is particularly amenable to probation. Specifically,
Diver claims the district court improperly refused to “fully consider” the factors he
presented to demonstrate that he is particularly amenable to probation as set forth in Trog.
See id. The record persuades us otherwise.
First, “an explanation is not required when the court considers reasons for departure
but elects to impose the presumptive sentenc e.” State v. Van Ruler , 378 N.W.2d 77, 80
(Minn. App. 1985). Second, though not obligated to do so, the district court considered
several Trog factors proffered by Diver and explained its basis for determining that Diver
was not particularly amendable to probation.
Before making its determination, the district court considered:
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• Diver’s extensive criminal history of three felony offenses since 2015, six
probation violations, and 122 misdemeanor offenses;

• Diver’s past offenses, which could not be identified as singular or insignificant
because they were not of the type that occurred in a “spree” and were not “low
level”;

• Diver’s lack of “strong family support”;

• Diver’s “serious and persistent mental illness” for which he had not sought
sufficient treatment; and

• Diver’s lack of remorse illustrated by his belief that T.H. “plays the victim and
is very manipulative.”

The district court concluded that it could not find a basis for departure given Diver’s
“assaultive history.” The district court stated:
And I agree with your attorney completely that your childhood
and upbringing and the people that were around, it’s atrocious.
But when I’m looking at these, I also have to look at public
safety. And you’ve racked up now, this is felony conviction
number five in about six, seven years. I just, I can’t do it, Mr.
Diver. I cannot grant, I just can’t grant a departure in this
matter.

Thus, the district court considered several Trog factors, explained its decision, and,
therefore, acted within its discretion by denying a dispositional departure.
Durational Departure
In determining whether to grant a downward durational departure, a district court
must focus on the defendant’s conduct and consider whether it was “significantly less
serious than that typically involved in the commission of the offense.” State v. Mattson ,
376 N.W.2d 413, 415 (Minn. 1985). “A durational departure must be based on factors that

2 Diver’s PSI shows 11 misdemeanor offenses, not the 12 the district court counted.
6
reflect the seriousness of the offense, not the characteristics of the offender.” State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (emphasis omitted). When the defendant’s
actions fit squarely within the conduct prohibited by the statute, the offense is not
significantly less serious than typical. State v. Rund, 896 N.W.2d 527, 534 (Minn. 2017);
Solberg, 882 N.W.2d at 627.
Diver argues that the district court “did not specifically address the question of
whether Diver’s offense was less serious than typical.” We disagree.
We first note that Diver did not provide to the district court a basis upon which it
should consider a durational departure. And, despite offering no basis, the district court
did consider whether Diver’s conduct was “significantly less serious than that typically
involved in the commission of the offense.” Mattson, 376 N.W. at 415. The district court
noted that the victim suffered a fractured jaw as the result of Diver’s offense and that Diver
played no “small role in the offense.”
Diver’s actions fit squarely within the conduct prohibited by the statute. Rund, 896
N.W.2d at 534; Solberg, 882 N.W.2d at 627. Therefore, the district court acted within its
discretion by denying a durational departure.
Affirmed.