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This opinion is nonprecedential except as provided by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
A24-0184

State of Minnesota,
Respondent,

vs.

Oluwatobi Samson Taiwo,
Appellant.

Filed January 13, 2025
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Anoka County District Court
File No. 02-CR-22-4662

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

Brad Johnson, Anoka County Attorney, Carl E. Erickson, Assistant County Attorney,
Anoka, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Following his two convictions of first-degree criminal sexual conduct under Minn.
Stat. § 609.342, subd. 1a(e) (Supp. 2021), appellant argues that the district court erred by
(1) imposing a lifetime conditional-release term on his conviction on the second count
2
because he had no prior sexual-conduct convictions under Minn. Stat. § 609.3455, subds. 6,
7(b), 7(c) (Supp. 2021), and (2) imposing an upward durational departure on the same count
because neither appellant’s admissions regarding certain aggravating factors nor the district
court’s findings support departure. We affirm in part, reverse in part, and remand.
FACTS
In early 2022, appellant Oluwatobi Samson Taiwo, then 19 years old, became
acquainted with the 12 -year-old victim through friends. Appellant, his four friends, and
victim had a group chat on Snapchat. On February 3, 2022, appellant and victim texted
each other, victim asked appellant to come to her house, and they had oral and vaginal sex
in a truck parked next to her house. On March 13, 2022, appellant and victim again had
oral and vaginal sex in the truck next to her house. After both encounters, appe llant
messaged the group chat about engaging in sexual contact with victim. These friends had
also engaged in sexual contact with victim.1
On June 20, 2023, appellant pleaded guilty to two counts of first-degree criminal
sexual conduct as part of a plea deal and admitted to the following two aggravating
sentencing factors: multiple forms of penetration and committing the crime as part of a
group of three or more people. See State v. Adell, 755 N.W.2d 767, 774 (Minn. App. 2008);
Minn. Sent’g Guidelines 2.D.3(b)(10) (2021). In exchange, the state dismissed three other
charges and withdrew the aggravating factor based on victim’s age. Minn. Sent’g

1 While the record is mostly consistent on the point that appellant did not know victim’s
true age, this is neither an element of nor a defense to the charged crime. Minn. Stat.
§ 609.342, subd. 1a(e).
3
Guidelines 2.D.3(b)(1) (2021). During the plea hearing, appellant admitted to penetrating
victim orally and vaginally, communicating about these sexual encounters in the group
chat after each incident , and that he was aware that these friends were also engaging in
sexual contact with victim. At the end of the hearing, the clerk asked whether the district
court accepted appellant’s guilty pleas. The district court responded: “And the pleas are
both accepted . . . if I did not say that earlier.”
The district court sentenced appellant on November 3, 2023. The district court
adjudicated appellant guilty on the first count (count I) and sentenced him to 158 months
in prison , subject to ten years’ conditional release. The district court then adjudicated
appellant guilty on the second count (count IV) and imposed a concurrent sentence of 252
months in prison, an upward departure of 36 months, subject to a lifetime conditional-
release term. This appeal follows.
DECISION
I. The district court erred by imposing a lifetime conditional -release term on
count IV.

Appellant argues that the district court erred by imposing a lifetime conditional -
release term on his conviction on count I V because he had no prior sexual- conduct
convictions under Minn. Stat. § 609.3455, subds. 6, 7(b), 7(c). We agree.
Whether a sentence conforms to the requirements of a statute or the sentencing
guidelines is a question of law that appellate courts review de novo. State v. Williams, 771
N.W.2d 514, 520 (Minn. 2009). This court “may at any time correct a sentence not
authorized by law.” Minn. R. Crim. P. 27.03, subd. 9.
4
In State v. Nodes, the Minnesota Supreme Court acknowledged that a “prior sex
conviction” for purposes of Minn. Stat. § 609.3455, subd. 7(b), is defined in Minn. Stat.
§ 609.02, subd. 5 (2022), as “any of the following accepted and recorded by the court:
(1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the court.”
863 N.W.2d 77, 80 (Minn. 2015) (emphases added). In Nodes, both parties agreed that the
district court accepted the defendant’s two guilty pleas simultaneously at the sentencing
hearing, so the supreme court had to determine only whether the pleas were recorded.
Nodes, 863 N.W.2d at 80. The supreme court relied on its opinion in State v. Martinez-
Mendoza, 804 N.W.2d 1, 6 (Minn. 2011), and held that a “court reporter’s transcription of
the proceedings[]is all that is required for a conviction to be recorded.” Nodes, 863 N.W.2d
at 81 (quotations omitted).
In State v. Brown, we held that “when a district court convicts an offender
simultaneously of multiple sex offenses in the same hearing, the offender does not have a
prior sex-offense conviction and is not subject to a lifetime conditional-release term under
Minn. Stat. § 609.3455, subd. 7(b).” 937 N.W.2d 146, 157 (Minn. App. 2019).
Here, the district court accepted appellant’s guilty pleas simultaneously at the plea
hearing on June 20, 2023, when it stated, “And the pleas are both accepted . . . if I did not
say that earlier.” See Minn. Stat. § 609.02, subd. 5. Appellant, therefore, “[did] not have
a prior sex-offense conviction and [was] not subject to a lifetime conditional release-term
under Minn. Stat. § 609.3455, subd. 7(b).” Brown, 937 N.W.2d at 157.
We conclude that the district court erred by imposing a lifetime conditional-release
term on count IV, and we reverse and remand to the district court with instructions to
5
impose the statutory ten-year conditional-release term for that offense. See Minn. Stat.
§ 609.3455, subd. 6.
II. The district court did not err by finding a basis for an upward departure based
on multiple forms of penetration, but it erred when it imposed an upward
departure on the basis that three or more people committed the crime.

Appellant next argues that, unless there is evidence that he committed the charged
offense with particular cruelty, multiple forms of penetration alone cannot support an
upward departure. Appellant also argues that, although he admitted that three or more
people were also engaging in sexual contact with victim and because only he and victim
participated in the charged sex offenses, the facts do not support an upward departure on
this factor. We address each issue in turn.
A district court must impose the presumptive sentence unless substantial and
compelling circumstances warrant an upward departure. State v. Grampre, 776 N.W.2d
347, 350 (Minn. App. 2009). Circumstances are substantial and compelling when “the
defendant’s conduct in the offense . . . was significantly more or less serious than that
typically involved in the commission of the crime in question.” Id. (quotation omitted). A
district court must provide a substantial and compelling reason when it departs from the
sentencing guidelines, State v. Mohamed, 779 N.W.2d 93, 96 (Minn. App. 2010), but it has
broad discretion to depart from a presumptive sentence when aggravating factors are
present. Adell, 755 N.W.2d at 771. “[A] single aggravating factor is sufficient to uphold
an upward departure.” Mohamed, 779 N.W.2d at 97. Whether a particular reason for an
upward departure is permissible is a question of law that we review de novo. Grampre,
776 N.W.2d at 350.
6
A. Multiple forms of penetration is a sufficient aggravating factor to
support an upward departure from a presumptive sentence.

Minnesota courts recognize that “the fact that a defendant has subjected a victim to
multiple forms of penetration is a valid aggravating factor in first-degree criminal sexual
conduct cases.” Adell, 755 N.W.2d at 774-75 (citing cases supporting this proposition). In
Adell, the appellant engaged in both vaginal and oral sex. Id. at 770. We concluded that
“multiple forms of penetration is not typical” of first-degree criminal sexual conduct and
is a proper factor for district courts to consider for a sentence enhancement. Id. at 775
(quotations omitted). Similarly here, we conclude that the district court did not err by
determining that multiple forms of penetration is a sufficient basis to support an upward
departure.
B. The district court erred by imposing an upward departure when it
determined that appellant committed the crime “as part of a group of
three or more offenders who all actively participated in the crime.”

The Minnesota Sentencing Guidelines recognize that, when “[t]he offender
committed the crime as part of a group of three or more offenders who all actively
participated in the crime,” an upward sentencing departure may be warranted. Id.
(emphasis added); Minn. Sent’g Guidelines 2.D.3(b). The district court determined that
this factor was present based on the finding that appellant “admitted to participating in a
group and sexually abusing [the victim] as part of a group,” and, as a result, it imposed an
upward durational departure of 36 months.
7
The question before this court is whether the record supports the district court’s
finding that appellant acted as part of a group “who all actively participated in the crime.”
Minn. Sent’g Guidelines 2.D.3(b). It does not.
There is no indication that the individuals actively participated in a group with
appellant to engage in sexual contact with victim, that they had any involvement in
appellant’s sexual contact with victim on March 13, 2022, or that the other individuals and
appellant were pressuring victim to engage in sexual contact with them. As the state
admitted at oral argument, only appellant and victim were present during the charged
sexual contact. Appellant discussed his sexual contact with the victim in a group chat with
his friends and victim, but only after the incident, and was aware that these individuals
were also engaging in sexual contact with the victim. But this evidence does not
demonstrate that appellant “committed the crime as part of a group of three or more
offenders who all actively participated in the crime.” Id. We conclude that the district
court erred when it determined that appellant’s conduct constituted a permissible ground
for an upward departure based on this factor.
C. Because the record is unclear on whether the district court would have
imposed the same sentence on count IV if it had relied only on the valid
aggravating factor, we remand to the district court.

Because we have concluded that the district court relied on both valid and invalid
factors by imposing an upward departure on count IV , we must decide “whether it is
necessary to remand [the] case to the district court to permit resentencing.” Mohamed, 779
N.W.2d at 100. When deciding whether to affirm a sentence or remand, “we must
determine whether the district court would have imposed the same sentence absent reliance
8
upon the improper aggravating factor[s].” Id. (quotations omitted). “[W]e consider the
weight given to the invalid factor[s] and whether any remaining factors found by the court
independently justify the departure.” Id. (quotations omitted). We will affirm the sentence
imposed by the district court “only if we can conclude from the record that the district court
would have imposed the same sentence absent its reliance on the improper aggravating
factors.” Id. (quotations omitted).
At sentencing, the district court identified the two departure grounds, multiple forms
of penetration and participating in the crime as a group, and stated, “I’m finding . . .
substantial and compelling reasons to depart upward . . . because I think there needs to be
some recognition that [appellant] abused [victim] multiple times and in multiple ways; in
particular, multiple forms of penetration on the second offense date.” This limited record
does not make clear how much weight the district court gave to the valid multiple-forms-
of-penetration factor compared to the invalid group-crime factor. Because “we cannot
discern the weight given to the invalid factor[] as compared to the valid factor,” we cannot
conclude that the district court would have imposed the same sentence if it had only
considered the valid aggravating factor. Id.
We therefore remand to the district court to determine appellant’s appropriate
sentence on count IV based on the sole aggravating factor of multiple forms of penetration.
Affirmed in part, reversed in part, and remanded.