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This opinion is nonprecedential except as provided by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
A22-0322

State of Minnesota,
Respondent,

vs.

Samuel Lee Griffith,
Appellant.

Filed January 30, 2023
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Hennepin County District Court
File No. 27-CR-19-17009

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max Brady Kittel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant argues that the district court abused its discretion by failing to grant a
downward dispositional sentencing departure, claiming he is particularly amenable to
probation. Because the district court acted within its discretion by sentencing appellant to
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an executed sentence, we affirm. However, because the district court erred by entering a
judgment of conviction for a lesser-included offense, we reverse and remand for the district
court to vacate that conviction.
FACTS
Respondent State of Minnesota charged appellant Samuel Lee Griffith with one
count of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342,
subd. 1(a) (2018), and one count of second-degree criminal sexual conduct, in violation of
Minn. Stat. § 609.343, subd. 1(a) (2018). The complaint alleged that Griffith, age 64,
engaged in sexual penetration and sexual contact with a four-year-old female (child) under
his care by licking and touching her vaginal area.
In June 2021, Griffith waived his right to a jury trial and agreed with the prosecutor
to have the matter tried by the court based on stipulated evidence pursuant to Minn. R.
Crim. P. 26.01, subd. 3. The prosecutor informed the district court that the parties’
agreement contemplates that, if the district court finds Griffith guilty of first- degree
criminal sexual conduct, Griffith would only serve a maximum of 48 months in prison—a
downward durational departure from the Minnesota Sentencing Guidelines presum ptive
commitment of 144-172 months. See Minn. Sent’g Guidelines 4.B (2018).
In August 2021, the district court found Griffith guilty of first-degree and
second-degree criminal sexual conduct and ordered a presentence investigation report
(PSI) and psychological evaluation.
During the sentencing hearing in December 2021, the state asked the district court
to sentence Griffith to 48 months in prison pursuant to the parties’ agreement. The state
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explained the “reasons for the departure” by citing Griffith’s lack of criminal history, “his
age, possible intoxication at the time, as well as that this was a single incident.” The state
also acknowledged that proceeding with a stipulated-evidence trial “save[d] the [child]
from coming and having to testify” and “save[d] her family from having to come in and
deal with everything that goes along with trial.”
Griffith’s attorney next orally moved for a downward dispositional departure to
place Griffith on probation. The district co urt entered a conviction and imposed an
executed 48- month sentence—a downward durational departure —and ten years of
conditional release for first-degree criminal sexual conduct. The district court did not
directly address Griffith’s motion for a downward dispositional departure. The district
court also entered a conviction for second-degree criminal sexual conduct though it did not
impose a sentence for that offense.
Griffith appeals.
DECISION
I. Dispositional Departure
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, 908
(Minn. App. 1991). The Minnesota Sentencing Guidelines establish presumptive
sentences for felony offenses. Minn. Sent’g Guidelines 4.B. The guidelines seek to
“maintain uniformity, proportionality, rationality, and predictability in sentencing.” Minn.
Stat. § 244.09, subd. 5(2) (2022). A district court may depart from the presumptive
sentence only when there are “identifiable, substantial, and compelling circumstances to
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support a departure.” Minn. Sent’g Guidelines 2.D.1 (2018); see also State v. Kindem, 313
N.W.2d 6, 7 (Minn. 1981). A downward dispositional departure occurs when the
sentencing guidelines recommend imprisonment, but the district court stays the prison
sentence. Minn. Sent’g Guidelines 1.B.5.a(2) (2018).
The Minnesota Sentencing Guidelines provide a nonexclusive list of mitigating
factors that could support a downward dispositional departure. Minn. Sent’g Guidelines
2.D.3.a (2018). An offender being “particularly amenable to probation” is one of the
mitigating factors. Minn. Sent’g Guidelines 2.D.3.a(7). Particular amenability to
probation can be shown by the defendant’s age, prior record, remorse, cooperation, attitude
while in court, and the support of friends or family. Soto, 855 N.W.2d at 310. These are
often referred to as the Trog1 factors. See State v. Pegel, 795 N.W.2d 251, 253 (Minn.
App. 2011).
With a zero criminal -history score, Griffith’s first-degree criminal-sexual-conduct
conviction results in a presumptive executed prison sentence of 144-172 months. See
Minn. Sent’g Guidelines 4.B. The district court imposed a 48-month prison sentence , a
downward durational departure. See id.; Minn. Sent’g Guidelines 1.B.5.b(2) (2018).
Griffith argues that the district court abused its discretion “when it found multiple
factors supporting a downward dispositional departure [in granting the durational
departure] but failed to address . . . Griffith’s motion for a downward dispositional
departure.” We are not persuaded.

1 See State v. Trog, 323 N.W.2d 28 (Minn. 1982).
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Griffith’s argument to the district court in support of a dispositional departure was
limited to statements from his attorney:
Counsel: Your Honor, we are asking for a dispositional
departure in this case. I believe it’s warranted for Mr. Griffith
based on his lack of criminal history, the fact that he would be
particularly amenable [to] probation. He’s been on conditional
release. There was only one issue the entire time he was on
conditional release.

I think it’s also important to note that Mr. Griffith shows
a combination of remorse and accepting responsibility even in
the face of maintaining his innocence . . . .

. . . Mr. Griffith indicated his care and concern for the
child. That he was taking care of this child . . . from a very
young age from a baby. When no one else was available to
care for this child, Mr. Griffith was there taking care of this
child.

The allegations that . . . the Court found Mr. Griffith
guilty of was a single incident, some potential substance
issues . . . have been resolved through conditional release.
And so I think Mr. Griffith would be particularly amenable to
probation and, therefore, a dispositional departure would be
warranted in this case.

In granting the durational departure, the district court identified, among other
reasons, Griffith’s age and limited criminal history. These are both Trog factors and,
therefore, not factors that support a durational departure. Compare Trog, 323 N.W.2d at
31 (citing “the defendant’s age, his prior record, his remorse, his cooperation, his attitude
while in court, and the support of friends and/or family” as relevant factors that may justify
a dispositional departure), with State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (“A
durational departure must be based on factors that reflect the seriousness of the offense, not
the characteristics of the offender.”). However, Griffith cites to no case law, and we are
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aware of none, concluding that a district court which cites to an offender-related factor to
support a durational departure abuses it discretion by not also imposing a dispositional
departure. Moreover, even when a district court finds that Trog factors are present, the
district court is not required to grant a downward dispositional departure. State v. Olson,
765 N.W.2d 662, 664-65 (Minn. App. 2009). Therefore, the district court did not abuse its
discretion when it declined to grant a dispositional departure.
Further, we will not disturb a presumptive sentence if “the record shows that the
sentencing court carefully evaluated all the testimony and information presented,” even if
there were grounds that would justify a departure. 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 Kindem, 313 N.W.2d at 7).
At the outset of the sentencing hearing, the district court explicitly stated that it
reviewed Griffith’s PSI and psychosexual evaluation prior to sentencing. The PSI outlined
aggravating factors in support of its sentencing recommendation of 144 months’
imprisonment, noting Griffith’s cooperation with the PSI process but flagging his
continued denial of criminal wrongdoing. See Minn. Sent’g Guidelines 2.D.3.b (2018).
The psychosexual evaluation largely reveal ed mitigating factors, including Griffith’s
fitness for outpatient sex-offender treatment. See Minn. Sent’g Guidelines 2.D.3.a(7)
(amenability to probation “may . . . be supported by the fact that the offender is particularly
amenable to a relevant program of individualized treatment in a probationary setting”).
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The district court also heard sentencing arguments from the prosecutor and Griffith’s
attorney, along with Griffith’s own statement during sentencing: “I still say I didn’t do
this.”
The record reflects that the district court deliberately considered the circumstances
for and against granting a disposit ional departure. And although the district court did not
explicitly explain its reasoning for declining to grant a dispositional departure, this was
well within the district court’s discretion because reasoning is not required when the district
court considers factors supporting departure but elects to impose the presumptive sentence.
State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).
II. Multiple Convictions
Minnesota law provides that “[u]pon prosecution for a crime, the actor may be
convicted of eith er the crime charged or an included offense, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2022). An included offense is “a lesser degree of the same crime” or “a
crime necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4).
Griffith was found guilty of first- degree, and the lesser -included offense of
second-degree, criminal sexual conduct. See State v. Kobow, 466 N.W.2d 747, 752 (Minn.
App. 1991), rev. denied (Minn. Apr. 18, 1991) (stating that second-degree criminal sexual
conduct is a lesser-included offense of first-degree criminal sexual conduct). The district
court entered convictions for both counts. We review this legal question de novo. Spann
v. State, 740 N.W.2d 570, 572, 573-74 (Minn. 2007).
Though not raised by either party, we may address the issue sua sponte because “it
is the responsibility of appellate courts to decide cases in accordance with law, and that
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responsibility is not to be diluted by counsel’s oversights, lack of research, failure to
specify issues or to cite relevant authorities.” State v. Hannuksela, 452 N.W.2d 668,
673-74 n.7 (Minn. 1990) (quotation omitted). If the law surrounding the issue is not novel
or questionable, additional briefing is not necessary. See id. (suggesting that solicitation
of additional briefing is appropriate for novel or questionable issues).
The district court erred when it entered a conviction on the lesser-included offense.
Thus, we reverse and remand for the district court to vacate the conviction for
second-degree criminal sexual conduct.
Affirmed in part, reversed in part, and remanded.