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This opinion is nonprecedential except as provided by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
A22-1471

State of Minnesota,
Respondent,

vs.

Marcus Allen Owens, Jr.,
Appellant.

Filed August 21, 2023
Affirmed
Bjorkman, Judge

Le Sueur County District Court
File No. 40-CR-20-950

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

Brent Christian, Le Sueur County Attorney, Jason L. Moran, Assistant County Attorney,
Le Center, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his presumptive sentence for first-degree criminal sexual
conduct, arguing that the district court abused its discretion by failing to consider the valid
reasons supporting a downward dispositional departure. We affirm.
2
FACTS
Appellant Marcus Allen Owens, Jr. pleaded guilty to first-degree criminal sexual
conduct involving a 12-year -old girl. At the time of the offense, Owens lived with the
victim’s family. He communicated with the victim using Snapchat , telling her she was
pretty, saying that he wanted to touch and have sex with her, and once asking her “for a
hand job.” One night between midnight and 1:00 a.m., the victim woke up and left her
bedroom to get a drink of water. Owens called her over to the laundry room, where he
“sexually penetrated her vagina with his penis.” When he was first interviewed by la w
enforcement, Owens denied any sexual contact with the victim. But when he was later
confronted with evidence that she became pregnant and had an abortion, and that DNA
testing of the fetus showed he was the father, Owens claimed that they had consensual
sexual intercourse and that it “was a mistake.”
At the guilty-plea hearing, Owens admitted that at the time he committed the offense
he was 21 years old and his victim was 12 years old. But he maintained that he did not
know the victim was 12.
Owens completed a presentence investigation (PSI) and a psychosexual evaluation.1
The PSI report described Owens’s difficult family history, lack of support in the
community, and mental-health concerns. It also noted Owens’s noncompliance with
probation for prior offenses and his continued references to his criminal sexual conduct as

1 We are mindful of our obligation under Minn. R. Pub. Access to Recs. of Jud. Branch 4,
subd. 1(b), to protect the confidentiality of nonpublic information, and include in this
opinion only information that Owens presents in his brief.
3
a “mistake,” which indicated a lack of accountability for his actions. The report
recommended that Owens be given a guidelines sentence of 144 months’ imprisonment.
The psychosexual evaluator likewise considered Owens’s past difficulties and
current challenges, and interviewed Owens twice. During the first interview, Owens told
the evaluator that he did not need sex-offender treatment and attempted to justify his
actions by insisting that he believed the victim was 16 years old. The evaluator opined that
Owens posed a “moderate-high risk” to reoffend and recommended sex-offender treatment,
which could be delivered in an outpatient setting so long as he was subject to cou rt
supervision. She also recommended a chemical-dependency assessment, stating that it was
possible Owens was “minimizing his substance use, which is known to be a strong
predictor of recidivism.” At the request of Owens’s attorney, the evaluator conducted a
second interview and updated her written report. Owens explained that he was guarded
during his first interview because “I didn’t really understand it was something to help” him.
The evaluator noted that Owens “seems more amenable to treatment” and that she now had
“more confidence in [Owens’s] ability to comply.” But she did not change her opinions
and recommendations.
Owens moved for a downward dispositional departure. A dispositional advisor
from the public defender’s office submitted a sentencing memorandum to “provide context
into [Owens’s] history and address the mitigating circumstances surrounding this offense.”
The memorandum focused on Owens’s lack of criminal sexual history, his “genuine regret
and remorse,” his “developing adolescent brain,” and his efforts to “explore programming
options” for outpatient sex-offender treatment. Owens told the dispositional advisor that
4
he thought he “would do well on probation versus last time” and had “more motivation
now to comply because [he was] facing a lot more jail time” than he did for his prior
offenses. The dispositional advisor recommended a probationary sentence, indicating that
Owens was “highly motivated to attend sex offender treatment and mental health therapy.”
At the sentencing hearing, the district court acknowledged that it had reviewed the
PSI report, the sentencing worksheet reflecting Owens’s relevant criminal history, the
psychosexual-evaluation reports, Owens’s departure motion, and the dispositional
advisor’s submission. The prosecutor argued for the presumptive 144-month sentence.
Owens asserted a dispositional departure was warranted because he is particularly
amenable to probation and his youth and brain development were substantial grounds that
tended to mitigate his culpability.
Owens addressed the district court, stating that he “recognize[d] the harm and
trauma” his victim went through, and that he “had no business fooling around with
somebody that young.” He insisted that he did not want his “mistakes” to “reflect on the
type of person” he “truly” was, and that he had “learned a lot” in the two years since he
committed the offense. He said he was “committed to treatment” and “willing to do
whatever” he could do to get his “life back on track.”
After recessing to consider the parties’ arguments, the district court denied Owens’s
departure motion and imposed the presumptive 144-month sentence.
Owens appeals.

5
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2022). The guidelines seek to “maintain
uniformity, proportionality, rationality, and predictability in sentencing.” Id. A district
court must impose a sentence within the presumptive sentencing range unless it finds
substantial and compelling circumstances to depart. Minn. Sent’g Guidelines 2.D.1 (2020);
State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017). If such circumstances exist, a district
court may but is not required to depart from the presumptive sentence. Wells v. State, 839
N.W.2d 775, 781 (Minn. App. 2013), rev. denied (Minn. Feb. 18, 2014). We afford district
courts “great discretion in the imposition of sentences.” State v. Soto, 855 N.W.2d 303,
307 (Minn. 2014) (quotation omitted). Only in a “rare” case do we reverse the imposition
of 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)).
A defendant’s particular amenability to probation is a mitigating circumstance that
may provide a substantial and compelling reason to depart. Minn. Sent’g Guidelines
2.D.3.a(7) (2020); State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). In determining
whether a defendant is particularly amenable to probation so as to justify a downward
dispositional departure, a district court may consider, among other things, “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Mere
amenability is not sufficient; “requiring a defendant to be particularly amenable to
probation . . . distinguishes the defendant from most others and . . . presents the substantial
6
and compelling circumstances that are necessary to justify a departure.” Soto, 855 N.W.2d
at 308-09 (quotation omitted).
Owens argues that the district court abused its discretion because it “simply
ignored” the evidence supporting his particular amenability to probation: his “age and
immaturity” when he committed his offense; 2 his “growth and maturity” while
incarcerated; his “particular amenability” to outpatient treatment; and “his demonstrated
remorse, his motivation to change, and his community support.” He contends that the
district court failed to weigh these “valid reasons” to depart against reasons not to depart.
We are not persuaded.
While a district court is required to give reasons for granting a departure, it need not
explain its decision to impose a presumptive sentence, so long as the record is clear that
the district court has considered reasons for departure. State v. Curtiss, 353 N.W.2d 262,
263 (Minn. App. 1984). Accordingly, we will not disturb the district court’s exercise of
discretion in imposing “a presumptive guidelines 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)

2 Owens dedicates a substantial portion of his brief to arguing that his “particularly young
age” supports departure, citing several cases from other jurisdictions. None of these cases
address the issue before us—whether the district court considered reasons supporting a
dispositional departure before it imposed a presumptive sentence. The record demonstrates
that Owens’s dispositional advisor addressed the topic of adolescent brain development in
her memorandum to the court. The district court expressly noted that it received and
considered the memorandum.
7
(quotation omitted), rev. denied (Minn. Sept. 17, 2013). The record here reveals the district
court did precisely that.
During the sentencing hearing, the district court stated that it had reviewed the PSI
report, the sentencing worksheet, the psychosexual-evaluation reports, Owens’s departure
motion, and the dispositional advisor’s memorandum. It acknowledged Owens’s statement
and the arguments of counsel. And, after spending “a great deal of time” considering all
this information, it ultimately determined that Owens was not amenable—let alone
particularly amenable—to probation. In explaining its decision, the court stated:
Mr. Owens, when I first went over your case the clear
thing that bothered me significantly was the age difference, 21
and 12. I was thinking about that again this morning. You
know who is 12 years old? Sixth graders. I can’t imagine a
grown adult walking into a sixth-grade classroom and thinking,
you know, I think it’s appropriate to have sex with one of these
girls. I think that’s a good idea. Or I think she looks like she’s
16. You know, that’s been your claim all along, you thought
she was 16. But when first confronted with this, you lied. And
you lied to the point until DNA evidence proved otherwise.
And you realized you had impregnated her. A pregnancy that
later necessitated an abortion. I have a hard time getting past
that.

In preparing for this sentencing something occurred to
me that hadn’t earlier, that I didn’t know earlier. This
happened more than once. You had sex with her more than
once. That’s not a mistake. You had more than sex with her,
you communicated with her on Snapchat, looking for
additional sex. Those are predatory tendencies. That’s not a
mistake, it’s just not. And I—I don’t want to lose focus of the
fact, not only did a 12-year-old girl’s life get changed forever,
a fetus was lost, another potential life, because of your actions.

Your attorney has done a very solid job all throughout
this case of trying to protect you, to defend you. At the end of
the day, though, I look back, in your short time of being an
8
adult, before being incarcerated on this offense, you had seven
criminal history— seven crimes that you were convicted of or
pending conviction, and they might be misdemeanor and gross
misdemeanor, but they were crimes of dishonesty, false info to
police, counterfeiting, and you weren’t successful on probation
at that time. There is nothing in your record that indicates you
are amenable to probation.
On this record, it is clear that the district court weighed the reasons for and against a
dispositional departure. We are not persuaded that the district court abused its discretion
in imposing the presumptive sentence or that this is the rare case in which we would disturb
such a sentence.
Affirmed.