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This opinion is nonprecedential except as provided by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
A22-1838

State of Minnesota,
Respondent,

vs.

Jennifer Lynn Baldwin,
Appellant.

Filed August 14, 2023
Reversed and remanded
Reyes, Judge

Hennepin County District Court
File No. 27-CR-18-23849

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

Mary F. Moriarty, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues on appeal that the district court abused its discretion by imposing
an upward durational departure to her sentence because (1) the jury did not find that she
abused her position of trust or authority as a caregiver of the victim and (2) her brief delay
2
in calling 911 did not constitute “particular cruelty.” We reverse and remand to the district
court for imposition of the presumptive sentence.
FACTS 1
Nine-month-old C.S. died after sustaining a serious head injury on March 15, 2018.
On that morning, C.S.’s mother (mother) dropped C.S. off at appellant Jenni fer Lynn
Baldwin’s house. Appellant usually took care of C.S. while C.S.’s parents were at work.
Upon arriving at appellant’s home at approximately 10:25 a.m., mother handed C.S.
to appellant, and C.S. cried, which was unusual. Because mother had to le ave for work,
she left C.S. with appellant while C.S. was still crying. But based on C.S.’s unusual
response, mother asked C.S.’s father (father) to pick C.S. up from appellant’s house earlier
than normal that day.
At 11:39 a.m., appellant called mother stating, “You need to get here, C.S.’s eyes
are rolling back in his head and he won’t stop crying.” Mother told her to call 911 and said
that father could get there quicker than she could. Appellant called father who told her to
call 911 as well. She then called 911 at 11:46 a.m. and asked the operator to send an
ambulance. Police officers arrived first to the scene and saw that “C.S. was having trouble
breathing, could not hold his head up, appeared lethargic and unresponsive.” An
ambulance arrived at 11:58 a.m. and immediately took C.S. to the hospital.

1 The following facts are based on the record in this appeal as well as appellant’s prior
appeal arising out of the same incident. See State v. Baldwin, No. A19-1677, 2022 WL
1132049 (Minn. App. Apr. 18, 2022), rev. denied (Minn. July 19, 2022).
3
A CT scan revealed that C.S. had suffered a brain injury that caused a hemorrhage ,
which is a bleeding in the brain. C.S. passed away on March 20, 2018. Two doctors
conducted an autopsy and found that C.S. had a serious brain injury. The doctors also
noted “multiple bruises, including on the left side of C.S.’s head, the back of his right ear,
his abdomen, the bicep of each arm, and his buttocks.” The medical examiner’s office
reported the cause of death as blunt -force trauma to the head and the manner of death as
homicide.
Respondent State of Minnesota charged appellant with one count of second -degree
murder while committing third -degree assault inv olving substantial bodily harm and one
count of second -degree murder while committing third -degree assault of a victim under
four. Minn. Stat . §§ 609.19, subd. 2(1), .233, subd . 1, 3 (2016). Appellant pleaded not
guilty, and a jury found appellant guilty on both counts.
After a Blakely2 proceeding, the jury returned special-verdict forms finding that the
state proved beyond a reasonable doubt that: (1) C.S. was nine months old at the time he
was injured; (2) he was unable to defend himself as a result o f his age; (3) he was unable
to call for help; (4) he was unable to flee from the assault; (5) appellant was a caregiver for
C.S. at the time of the assault; and (6) appellant failed to call 911 immediately after
assaulting C.S.
The Minnesota S entencing Guidelines provided a presumptive sentence of 150
months with a presumptive range of 128 months to 180 months. The district court

2 Blakely v. Washington, 542 U.S. 296, 296 (2004) ( holding that every fact that supports
an enhanced sentence must be found by a jury or admitted by the defendant).
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sentenced appellant to 255 months, an upward durational departure, on count two of
second-degree unintentional murd er while committing third -degree felony assault of a
victim under four. The district court based its upward departure on the jury’s Blakely
findings. On appeal to this court, we reversed and remanded the upward departure ,
concluding that, because Minn. Stat. § 609.223, subd. 3, already included the victim’s age
as an element of the offense, “the district court erred by considering C.S.’s vulnerability
due to his age as an aggravating factor.” Baldwin, 2022 WL 1132049, at *10. On remand,
the district court sentenced appellant to 255 months again, this time based on the jury’s
Blakely findings that appellant (1) was his caregiver and (2) failed to call 911 immediately
after assaulting C.S. This second appeal follows.
DECISION
I. Standard of Review

Appellant argues that the district court abused its discretion by imposing an upward
durational departure to her sentence because (1) the jury did not find that appellant abused
her position as a caregiver and (2) the brief delay in calling 911 did not amount to particular
cruelty. We agree.
We review a district court’s decision to depart from the sentencing guidelines based
on permissible grounds for an abuse of discretion. State v. Grampre, 766 N.W.2d 347, 350
(Minn. App. 2009). “The issue [of] whether a particular reason for an upward departure is
permissible is a question of law, which is subject to a de novo standard of review.” Id. “If
the reasons given for an upward departure are legally permissible and factually supported
in the record, the departure will be affirmed. ” State v. Edwards , 774 N.W.2d 596, 601
5
(Minn. 2009) . But “[i]f the reasons given are improper or inadequate and there is
insufficient evidence of record to justify the departure, the departure will be reversed. ”
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) .
“If a jury finds facts that support a departure from the presumptive sentence, the
court may exercise discretion to depart but is not required to depart .” State v. Jackson, 749
N.W.2d 353, 360 (Minn. 2008) . “Departures from the presumptive sentence are justified
only when substantial and compelling circumstances are present in the record. ” Id.
(emphasis omitted). “Substantial and compelling circumstances are those showing that the
defendant ’s conduct was significantly more or less serious than that typically involved in
the commission of the offense in question.” Edwards, 774 N.W.2d at 601 (quotation
omitted). If a district court depart s, it must provide written reasons “which specify the
substantial and compelling nature of the circumstances, and which demonstrate why the
sentence selected in the departure is more appropriate, reasonable or equitable than the
presumptive sentence.” Taylor v . State, 670 N.W.2d 584, 588 (Minn. 2003) (quotation
omitted).
II. The district court abused its discretion because the jury did not fi nd that
appellant abused her position of trust or authority as a caregiver.

Appellant first argues that the jury’s finding that appellant was C.S.’s caregiver does
not warrant an upward departure because the jury did not find that appellant abused her
position of trust or authority as a caregiver. Her argument has merit.
“Abuse of positions of trust and authority ar e aggravating factors justifying a
durational departure. ” State v. Campbell, 367 N.W.2d 454, 460- 61 (Minn. 1985). Here,
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however, the jury only found that appellant was a caregiver for C.S. at the time of the
assault. Nonetheless, the district court on remand stated:
This is an upward durational departure, and though the Court
of Appeals has ruled that the victim’s vulnerability due to his
age is not sufficient grounds for an upward departure, the jury
found other aggravating fact ors. The State has proven beyond
a reasonable doubt that [appellant] w[as] [C.S.’s] caregiver.
I did not rely on this factor when I sentenced you in 2019 . . . I
find that at the time of the assault [C.S.’s] parents trusted
[appellant] to care for him , [appellant] w[as] responsible for
his health and welfare. [Appellant] violated this position of
trust and, clearly, under Minnesota law that is an aggravating
factor warranting an upward departure.

(Emphasis added.)

First, the jury was not asked and did not find that appellant abused her position of
trust or authority as a caregiver. Moreover, to rely on that aggravating factor, the facts
must establish more than the simple existence of a position of a trust or authority; they must
demonstrate that t he offense involved the abuse of that position as well. See State v. Lee,
494 N.W.2d 475, 482 (Minn. 1992); State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990)
(emphasis added). Unless such facts are either found by a jury or the defendant waives his
right to a jury’s determination of those facts, the district court is not permitted to find them
of its own accord or aggravate the defendant’s sentence based upon them. See State v.
Dettman, 719 N.W.2d 644, 649 (Minn. 2006) (“ The district court ’s imposition of an
upward departure was permissible only if the facts authorizing the departure were either
found by a jury beyond a reasonable doubt or admitted by [appellant].”). In other words,
it is the jury that must find facts that support a departure, not the district court. The district
court erred by making independent findings.
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Second, an upward durational departure requires the existence of compelling
circumstances to show that “the defendant ’s conduct was significantly more or less serious
than that typically involved in the commission of the offense in question.” Edwards, 774
N.W.2d at 601 (emphasis added) . Courts must then consider what is a “typical case” of
second-degree unintentional murder predicated on a third-degree assault of a child under
four. Minn. Stat . §§ 609.19, subd. 2(1), .233, subd. 3. This offense involves a defendant
assaulting a child “under the age of four” and caus ing harm “to the child’s head, eyes or
neck, or otherwise cause[ ing] multiple bruises to the body.” Minn. Stat. § 609.223, subd.
3.
In the prior appeal, we relied on Taylor, a sexual-assault case, to conclude that the
legislature’s definition of the predicate offense and its punishment already considered the
vulnerability of a child under the age of four. 670 N.W.2d at 589; Baldwin, 2022 WL
1132049, at *9. In Taylor, the Minnesota Supreme Court held that a three-year-old victim’s
vulnerability and Taylor’s position of authority or trust were inappropriate bases for
departure when those facts were already considered by the legislature in determining the
degree of seriousness of the offense. 670 N.W.2d at 589. In that case, the state accused
Taylor of sexually abusing a three -year-old child who attended the daycare operated by
Taylor’s wife out of their home. Id. at 585. The state charged Taylor with sexual contact
with a person under 13 by an actor more than 36 months older in violation of Minn.
Stat. § 609.342, subd. 1(a) (2002), which carried a presumptive 144 -month sentence. Id.
Following Taylor’s guilty plea, the district court imposed an upward departure and
sentenced Taylor to 180 months in prison based on “multiple incidents of abuse, violation
8
of a position of trust [,] and particular vulnerability of the victim due to age.” Id. at 586.
The supreme court concluded that, “although Taylor’s conduct was reprehensible and
regrettable, [the court] cannot say that it was an atypical first -degree offense warranting a
durational departure.” Id. at 589.
It also observed in a footnote that
Experience has [] shown that courts tend to view criminal
sexual assaults by strangers as more serious and aggravated,
thereby justifying durational departures. [. . .] Inasmuch as the
guidelines endeavor to limit departures to those circumstances
that make the facts of a particular case different from a typical
case, it would be difficult in most cases to reconcile departures
based on both stranger sexual assaults and the more typical
position-of-trust assaults .

Id. at 589 n.6 (emphasis added) (citations omitted).
The rationale in Taylor compels a similar conclusion here. The record shows that
C.S. sustained multiple bruises, including on the left side of his head, the back of his right
ear, his abdomen, the bicep of each arm, and his buttocks , which are contemplated by the
statute and are therefore “typical” of the offense charged. See Minn. Stat. § 609.223, subd.
3 (a defendant must assault a child “under the age of four” and cause harm “to the child’s
head, eyes[,] or neck, or otherwise cause[] multiple bruises to the body”). We conclude
that the district court abused its discretion because the jury ’s finding that a ppellant was
C.S.’s caregiver did not warrant an upward departure when appellant’s conduct , while
“reprehensible and regrettable,” was not “atypical” of the offense charged. Id.

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III. The district court abused its discretion by departing upward based on
particular cruelty.

Appellant also argues that “the brief delay in calling 911 did not amount to
“particular cruelty.” We agree.
“A district court may base a sentencing departure on a defendant’s particularly cruel
treatment of a victim.” State v. Turrubiates, 830 N.W.2d 173, 180 (Minn. App. 2013) , rev.
denied (Minn. Jul. 16, 2013) (citing Minn. Sent. Guidelines II.D.2.b.(2) (2010) ).
“Particular cruelty involves the gratuitous infliction of pain and cruelty of a kind not
usually associated with the commission of the offense in question.” Id. (quoting Tucker v.
State, 799 N.W.2d 583, 586 (Minn. 2011) ). “A district court may evaluate the degree of
cruelty inflicted on a child victim based on the nature and extent of the physical damage
and the treatment necessary to repair the injury.” Id. (quotation omitted). “[A]lthough the
failure to aid is relevant to whether a person convicted of a crime has acted in a particularly
cruel manner, [the supreme court] h[as] never affirmed a departure for particular cruelty
based solely on the failure to render medical aid.” Tucker, 799 N.W.2d at 587.
At the sentencing hearing, the district court determined that appellant acted with
particular cruelty based on the jury’s finding that appellant failed to call 911 immediately
following the assault . But, as noted above, failure to render me dical aid alone cannot
support an upward departure based on particular cruelty. See id.
The state argues that Turrubiates supports the upward departure, but that case is
factually distinguishable from this one. 830 N.W.2d . In Turrubiates, the defendant was
caring for a 19- month-old child, T.M., who died under his care after suffering multiple
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traumatic injuries to at least seven impact sites including T.M.’s head. Id. at 180. In that
case, T.M. fell off a rug, causing a burn on her head, the defendant kicked a dresser and a
200-pound television fell off the dresser and hit T.M. on the forehead causing T.M. to fall
backwards and bump the back of her head on a little table . Id. at 176. The television also
fell forward onto T.M.’s chest. Id. After T.M. was injured, the defendant failed to contact
either parent or call 911. Id. Even when T.M.’s mother arrived seven to ten minutes later,
the defendant did not inform her about T.M.’s injury but instead told her that T.M. was
sleeping. Id. The defendant watched television with T.M.’s mother before he went to the
restroom, and called out to T.M.’s mother saying that “something ‘serious’ was wrong with
T.M.” Id. T.M.’s mother called 911. Id. Before the police arrived, the defendant threw
T.M.’s blood -stained clothes into the dumpster to hide the evidence. Id. (quotations
omitted). The defendant ’s inaction delayed medical care by at least 45 minutes. Id. at 181.
The state charged the defend ant with second-degree felony murder with an underlying
felony of child endangerment resulting in substantial harm to any person under the age of
18. Minn. Stat. §§ 609.378, subd. (1)(b) (1), .376, subd. 2 (2010). Id. at 175- 78. The
district court departed upward based on the aggravating factors of particular vulnerability
and particular cruelty . Id. at 176-77. This court upheld the upward departure , given the
number of injuries T.M. suffered and the defendant’s failure to seek medical care for at
least 45 minutes. Id. at 181-82.
Here, unlike the defendant in Turrubiates, appellant contacted both parents , notified
them of C.S.’s symptoms, did not hide C.S.’s symptoms, and called 911, all within seven
minutes. Moreover, C.S.’s injuries did not suggest multiple impact sites as in Turrubiates.
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The Turrubiates case is therefore not analogous to our set of facts. We conclude that the
district court abused its discretion by determining that the jury’s finding that appellant
failed to call 911 immediately after assaulting C.S. warranted an upward departure.
To conclude, a n upward departure is appropriate only when facts supporting an
aggravating factor are found by a jury or an appellant waives his right to a jury’ s
determination of those facts. Dettman, 719 N.W.2d at 649. If the jury finds that the state
proved those facts beyond a reasonable doubt, then the district court can rely on those facts
to determine whether they support a substantial and compelling reason to depart from the
presumptive guideline sentence. Jackson, 749 N.W.2d at 360. Here, the jury did not find
facts to support an aggravating fa ctor, and the record does not support a substantial and
compelling reason to depart from the presumptive guideline sentence. Williams, 361
N.W.2d at 844. We therefore reverse and remand to the district court for imposition of the
presumptive sentence.
Reversed and remanded.