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This opinion is nonprecedential except as provided by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
A24-0579

State of Minnesota,
Respondent,

vs.

Anthony Johnson Moliwulo,
Appellant.

Filed February 10, 2025
Affirmed
Reyes, Judge

Anoka County District Court
File No. 02-CR-22-4819

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this sentencing appeal following a conviction of third-degree criminal sexual
conduct, appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure. We affirm.
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FACTS
In early summer 2022, 15-year-old victim L.H. moved in with her grandmother and
uncle. L.H.’s uncle was completely paralyzed from the shoulders down and required
assistance to complete daily tasks. L.H.’s family hired appellant Anthony Johnson
Moliwulo as a personal-care assistant to aid L.H.’s uncle with daily chores.
One day during appellant’s shift, appellant went into L.H.’s room while she was
lying down and began talking with her. He then lifted the blanket she had covering her,
put his hands on her thighs, and began rubbing her legs. L.H. began taking pictures of
appellant’s hands on her legs because she felt uncomfortable with the way he was acting
and moved her leg away from him. In response, appellant told L.H. that he liked her and
to “give him a chance.” After that encounter, L.H. sent the pictures of appellant’s hand on
her leg to her brother, who showed the photos to their grandmother. L.H.’s grandmother
then reported the incident to the police.
Several days later, appellant came into the living room where L.H. had been sitting
in a chair with a blanket, watching television and playing on her cell phone. Appellant sat
next to L.H. and put his hands under the blanket that was covering her and began to touch
her legs, trying to pull her pants down, and to perform oral sex on her. L.H. told appellant
“no” several times and tried to push him away, but appellant persisted. He attempted to
perform oral sex on her and inserted his penis into her vagina. L.H. recorded several parts
of this second encounter on her cell phone on video and audio.
The Anoka County Sheriff’s Office interviewed L.H., who showed law enforcement
the videos and audio recordings of the incidents. Following L.H.’s report, respondent State
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of Minnesota charged appellant with two counts of third-degree criminal sexual conduct in
violation of Minn. Stat. § § 609.344, subd. 1a(c), and 609.344, subd. 1a(b) (2022).
The district court held appellant’s jury trial in October 2023 over four days. The
jury convicted appellant of both counts of third-degree criminal sexual conduct. Prior to
sentencing, appellant completed an interview with probation for the presentence
investigation (PSI) report and a psychosexual evaluation.
Appellant also moved for a downward dispositional departure. At the beginning of
the sentencing hearing, the district court stated that it had “review[ed] everything” in the
complaint, the PSI, the psychosexual evaluation, and appellant’s motion for departure. The
district court confirmed with appellant’s trial counsel that there was nothing else to review.
Appellant requested a downward dispositional departure to probation or alternatively a
downward durational departure to 41 months in prison. In support of the downward
dispositional departure, he argued that he was particularly amenable to probation because
he (1) had no prior criminal history, drug abuse, alcoholism, or chemical-dependency
issues; (2) had family support; (3) had been gainfully employed; and (4) had complied with
the terms of conditional release. The state requested the district court sentence appellant
to 57 months in prison.
After hearing the arguments of counsel and appellant, the district court found that
there were no substantial and compelling circumstances to justify departure. The district
court sentenced appellant to 48 months in prison on count I, which is within the
presumptive range, and dismissed count II as a lesser included offense.

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DECISION
Appellant argues that the district court abused its discretion by imposing a
presumptive sentence because the record does not “instill confidence” that it deliberately
considered all the factors, including those favoring a downward dispositional departure.
We disagree.
Appellate courts “afford the district court great discretion in the imposition of
sentences and cannot substitute [their] judgment for that of the district court.” State v.
Vang, 847 N.W.2d 248, 264 (Minn. 2014). The Minnesota Sentencing Guidelines permit
a district court to depart from a presumptive sentence only if “identifiable, substantial, and
compelling circumstances are present.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014)
(quotations omitted). “Substantial and compelling circumstances are those circumstances
that make the facts of a particular case different from a typical case.” Taylor v. State, 670
N.W.2d 584, 587 (Minn. 2003) (quotations omitted).
“The Sentencing Guidelines contain a ‘nonexclusive list’ of mitigating
circumstances that can justify a downward departure.” Soto, 855 N.W.2d at 308. “A
dispositional departure typically focuses on characteristics of the defendant that show
whether the defendant is particularly suitable for individualized treatment in a probationary
setting.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotations omitted). In
evaluating a motion for a downward dispositional departure, the district court may consider
“[n]umerous factors, including the defendant’s age, [] prior record, [] remorse, []
cooperation, [] attitude while in court, and the support of [] friends and/or family.” State
v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). But even if some Trog factors are present, the
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district court is not obligated to depart. See State v. Pegel, 795 N.W.2d 251, 253-54 (Minn.
App. 2011) (stating presence of mitigating factor does not obligate district court to place
defendant on probation or impose term shorter than presumptive term).
The district court “must exercise [its] discretion by deliberately considering
circumstances for and against departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn.
App. 2002), rev. denied (Minn. Apr. 16, 2002); see also State v. Curtiss, 353 N.W.2d 262,
263-64 (Minn. App. 1984)). When the record shows that the district court carefully
considered and evaluated the testimony and information presented to it, this court “may
not interfere” with its imposition of a presumptive sentence. State v. Van Ruler, 378
N.W.2d 77, 80-81 (Minn. App. 1985).
Appellant argues that the district court did not consider the factors that weigh in
favor of a downward dispositional departure because it did not go through each of those
factors on the record and instead only noted his “lack of responsibility, the denial of the
offense.” In support of his argument, appellant relies on Curtiss and Mendoza. Neither
case is persuasive or analogous to the facts of this case. In Curtiss, we remanded the case
for resentencing because the district court summarily determined that there was “no
justifiable reason to deviate” before sentencing Curtiss. 353 N.W.2d 262 at 263. We
further acknowledged that our intervention in that case was solely due to the district court’s
lack of its exercise of discretion. Id. at 264. In Mendoza, we remanded because “we [could
not] conclude from the record” that the district court imposed a presumptive range sentence
“by weighing reasons for and against departure” and because it improperly considered the
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defendants’ immigration status and possible deportation consequences. 638 N.W.2d at
484.
By contrast, this record shows that the district court thoroughly considered the
factors for and against departure before imposing a presumptive sentence. At the beginning
of the sentencing hearing, the district court stated that it had “review[ed] everything,”
including the complaint, PSI, psychosexual evaluation, and motion for departure. These
documents include information such as appellant’s age, his biographical history from his
childhood to adulthood, criminal history, and employment history. The district court also
heard arguments from both parties. Moreover, a district court is not required to explain its
reasons for imposing a presumptive sentence. See Van Ruler, 378 N.W.2d 77 at 80 (stating
that if district court “considers reasons for departure but elects to impose the presumptive
sentence,” an explanation for denying departure is not required).
Appellant further argues that the presence of some of the Trog factors “established
[his] particular amenability to probation and presented substantial and compelling reasons
for a departure.” However, the district court need not depart even if some Trog factors are
present. See State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009).
Because the district court carefully considered the circumstances weighing in favor
of and against a departure, it did not abuse its discretion by denying appellant’s request for
a downward dispositional departure and imposing a presumptive sentence.
Affirmed.