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This opinion is nonprecedential except as provided by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
A25-1553

State of Minnesota,
Respondent,

vs.

Nathan Leonard Hernandez,
Appellant.

Filed August 3, 2026
Affirmed
Frisch, Chief Judge

Dakota County District Court
File No. 19HA-CR-24-1313

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

Kathryn M. Keena, Dakota County Attorney, Cheri A. Townsend, Assistant County
Attorney, Hastings, Minnesota (for respondent)

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

Considered and decided by Harris, Presiding Judge; Frisch, Chief Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Chief Judge
In this direct appeal from judgment of conviction for first-degree criminal sexual
conduct, appellant Nathan Leonard Hernandez challenges his 188-month sentence, arguing
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that the district court abused its discretion in denying his motion for a downward
dispositional departure and in granting the state’s motion for an upward durational
departure. Because we discern no abuse of discretion by the district court, we affirm.
FACTS
On multiple occasions in April 2024, Hernandez penetrated his 14-year -old
stepdaughter’s vagina with his penis. For this conduct, respondent State of Minnesota
charged Hernandez with one count of first-degree criminal sexual conduct, in violation of
Minn. Stat. § 609.342, subd. 1a(h)(iii) (2022) (providing that person is guilty where they
engage in penetration of a person under 18, the “complainant was under 16 at the time of
the act,” “the actor had a significant relationship to the complainant,” and “the sexual abuse
involved multiple acts committed over an extended period of time”). The presumptive
sentencing range for an offender with Hernandez’s criminal -history score is 144 to 172
months. See Minn. Sent’g Guidelines 4.B. (Supp. 2023). Shortly after filing the charges,
the state filed a notice of intent to seek an aggravated durational sentencing departure. See
Minn. Sent’g Guidelines 1.B.5.b(1) (Supp. 2023) (defining “aggravated durational
departure” as “when the court pronounces a prison duration that is more than 20 percent
higher than the [presumptive] fixed duration”).
Hernandez pleaded guilty. Pursuant to the parties’ plea agreement, Hernandez
agreed to submit to a presentence investigation (PSI) and a psychosexual evaluation, and
the state agreed not to argue for a sentence greater than 188 months. In the factual basis
for Hernandez’s plea, he admitted that he engaged in penetration of his 14-year -old
stepdaughter on multiple occasions, and at least one of the acts took place in his
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stepdaughter’s bedroom, a place “that would be a zone where she would have some
privacy.” The district court accepted the plea and adjudicated Hernandez guilty. Based on
the presence of “[m ]ultiple aggravating factors,” making the offense “especially
egregious,” the PSI recommended a sentence of 188 months.
Before the sentencing hearing, Hernandez moved through counsel for a downward
dispositional sentencing departure, asserting that he is particularly amenable to probation.
See Minn. Sent’g Guidelines 1.B.5.a (Supp. 2023) (defining “dispositional departure” as
“when the court orders a disposition other than that recommended in the Guidelines”).
At the sentencing hearing, the district court stated that it had reviewed the PSI, the
psychosexual evaluation, letters of support from Hernandez’s family and a close friend,
and a sentencing memorandum provided by defense counsel. The district court heard two
victim-impact statements: one from Hernandez’s stepdaughter and one from the
stepdaughter’s mother, Hernandez’s ex-wife. Hernandez also addressed the court directly.
The state asked the district court to impose a 188-month aggravated prison sentence,
relying on Hernandez’s admission that the acts occurred in his stepdaughter’s bedroom and
therefore invaded her zone of privacy. The state further argued that Hernandez is not
particularly amenable to probation because he “is an extreme public safety risk” and
“verbalize[s] that he’s taking accountability while also discussing all of the other things
that he uses to rationalize and explain his behaviors.”
Hernandez sought a downward dispositional sentencing departure, arguing that he
is remorseful, has accepted accountability for his actions, is cooperative in court, and is
therefore particularly amenable to probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn.
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1982) (stating that factors “relevant to a determination whether a defendant is particularly
suitable to individualized treatment in a probationary setting” include the defendant’s age,
prior record, remorse, cooperation, attitude while in court, and support of friends and/or
family).
In response to the state’s request for the imposition of an aggravated durational
sentencing departure, Hernandez’s counsel suggested that the zone-of-privacy aggravating
factor was not an appropriate basis for such a departure: “Your Honor, I’m 45 years old,
maybe I’m a boring guy, but where do people have sexual contact? I don’t know. Would
this have been better if it was in a kitchen, the basement, the garage, a different bedroom
in the house?”
The district court denied the motion for a downward dispositional departure, granted
the motion for an upward durational departure, and sentenced Hernandez to 188 months in
prison. In so doing, the district court addressed the Trog factors, which the district court
described as “not an exhaustive list but they’re certainly factors I need to consider.” The
district court acknowledged that certain Trog factors—lack of a prior record, cooperation,
attitude in court, and support of friends and family—weighed in favor of a downward
dispositional departure. But the district court also stated that t wo factors —age and
remorse—did not support a downward dispositional sentencing departure. In pertinent
part, the district court identified “some recurring themes,” including Hernandez’s blaming
his “toxic” relationship with his ex-wife and “subtly blaming the victim” for his actions.
The district court determined that the evidence did not reflect “a compelling case for
remorse,” but rather reflected “an ongoing pattern of deflection, denial, and blame.” The
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district court ultimately concluded that a downward dispositional departure was not
appropriate.
In evaluating the state’s motion for an upward durational departure, the district court
rejected several bases for an aggravated sentence, but agreed with the state that the
evidence established that Hernandez invaded the victim’s zone of privacy through the
commission of acts occurring in the victim’s bedroom, where she had an expectation of
privacy. Ultimately, the district court granted the state’s motion, reasoning that “case law
makes it very clear to me that incidents happening within that zone of privacy, where the
victim had an expectation of privacy, her bedroom, that that is enough to justify an
aggravated sentence.”
The district court entered judgment of conviction on one count of first-degree
criminal sexual conduct and sentenced Hernandez to 188 months in prison, a 16-month
upward durational departure from the presumptive guidelines range. See Minn. Sent’g
Guidelines 4.B.
Hernandez appeals.
DECISION
On appeal, Hernandez argues that the district court abused its discretion in denying
his motion for a downward dispositional sentencing departure and in granting the state’s
motion for an upward durational sentencing departure. District courts have a great deal of
discretion in their sentencing decisions. State v. Soto, 855 N.W.2d 303, 307 (Minn. 2014).
However, that discretion is limited by the Minnesota Sentencing Guidelines, which
prescribe sentences that are “presumed to be appropriate for the crimes to which they
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apply.” Minn. Sent’g Guidelines 2.D.1 ( Supp. 2023). A district court may exercise its
discretion to depart from the presumptive sentence only when there are “identifiable,
substantial, and compelling circumstances to support a departure.” Id. But “a sentencing
court has no discretion to depart from the sentencing guidelines unless aggravating or
mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).
We review a district court’s sentencing departure for an abuse of discretion. State
v. Vanengen, 3 N.W.3d 579, 582 (Minn. 2024). “A district court abuses its discretion when
its reasons for departure are not legally permissible or when the evidentiary record is
insufficient to justify the departure.” Id. We will affirm a sentencing departure if the
reasons for the departure “are legally permissible and factually supported in the record. ”
State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009).
I. Downward Dispositional Departure
Hernandez first argues that the district court abused its discretion when ruling on
his motion for a downward dispositional departure because the district court “treated the
Trog factors as prerequisites that must be met for departure.” According to Hernandez,
this “failure” was “compounded by the court’s consideration of the PSI writer as an expert
on whether Hernandez was particularly amenable to probation.” We disagree.
A dispositional departure “occurs when the presumptive guidelines sentence calls
for imprisonment but the district court instead stays execution or imposition of the
sentence.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). When considering a
dispositional departure, a district court focuses “more on the defendant as an individual
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and on whether the presumptive sentence would be best for him and for society.” State v.
Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
The Minnesota Sentencing Guidelines provide a nonexclusive list of mitigating
factors that can justify a downward dispositional departure, including that “[t]he offender
is particularly amenable to probation.” Minn. Sent’g Guidelines 2.D.3.a(7) (Supp. 2023).
The requirement of particular amenability ensures that “the defendant’s amenability to
probation distinguishes the defendant from most others and truly presents the substantial
and compelling circumstances that are necessary to justify a departure.” Soto, 855 N.W.2d
at 309 (quotation omitted). District courts consider factors such as a defendant’s age, prior
criminal record, remorse, cooperation, attitude in court, and support of friends and family
in evaluating particular amenability to probation. Trog, 323 N.W.2d at 31. But even if the
record contains evidence of particular amenability to probation, a district court is not
required to grant a dispositional departure. State v. Olson, 765 N.W.2d 662, 664-65 (Minn.
App. 2009); see also State v. Walker, 913 N.W.2d 463, 468-69 (Minn. App. 2018)
(concluding that district court did not abuse its discretion denying a downward
dispositional departure despite evidence of mitigating factors that could have supported a
departure).
We disagree with the characterization that the district court abused its discretion by
treating the Trog factors as “necessary and sufficient conditions for a departure.” The
record shows that the district court carefully evaluated the PSI, the psychosexual
evaluation, letters of support from Hernandez’s family and a close friend, defense’s
sentencing memorandum, victim -impact statements from Hernandez’s stepdaughter and
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ex-wife, Hernandez’s allocution, and the parties’ respective sentencing arguments. Each
of the district court’s findings regarding the Trog factors is grounded in this evidence. The
district court found that four Trog factors—Hernandez’s prior record, cooperation, attitude
in court, and support of friends and family —supported a dispositional departure. The
district court found that two factors did not support a departure— Hernandez’s age and
absence of remorse—and ultimately declined to grant the departure. We discern no abuse
of discretion by the district court in its evaluation of the evidence. See State v. Sejnoha,
512 N.W.2d 597, 600 (Minn. App. 1994), rev. denied (Minn. Apr. 21, 1994) (stating that
we “must defer to the district court’s assessment of the sincerity and depth of the remorse
and what weight it should receive in the sentencing decision,” because “the district court
has an opportunity to actually observe the defendant throughout the proceedings ”); Soto,
855 N.W.2d at 310 (rejecting district court’s conclusion that 37-year-old defendant’s age
made him particularly amenable to probation).1 Accordingly, we conclude that the district
court did not abuse its discretion in den ying Hernandez’s motion for a downward
dispositional departure.

1 Hernandez also assigns error to the district court’s reliance on the information set forth in
the PSI and its comment during the sentencing hearing that probation officers “are experts
in determining whether someone is particularly amenable to probation.” Hernandez relies
on Soto, in which the supreme court reasoned that the “mere fact that the person who
prepared a report for the district court reached a certain conclusion does not necessarily
justify departing from the presumptive disposition under the guidelines.” 855 N.W.2d at
309 (quotation omitted). In Soto, a conclusion in the PSI was one of the “primary reasons”
for the district court’s decision. Id. That is not the case here. Our review of the record
confirms that the district court’s sentencing order clearly reflect an independent analysis of
the evidence presented by the parties in support of their respective sentencing motions and
the district court’s independent exercise of discretion in the imposition of the sentence.
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II. Upward Durational Departure
Hernandez next argues that the district court abused its discretion in imposing an
upward durational sentencing departure based on the zone-of-privacy aggravating factor as
duplicative of an element of the offense to which Hernandez pleaded guilty. He argues
that “[t]he invasion of the victim’s zone of privacy was already considered when the
legislature determined the severity level that applies to a criminal sexual conduct involving
a significant relationship.” We disagree.
“The Minnesota Sentencing Guidelines provide a non-exclusive list of aggravating
factors that may be used as reasons to impose an upward sentencing departure.” Vanengen,
3 N.W.3d at 582; Minn. Sent’g Guidelines 2.D.3.b ( Supp. 2023); see also Minn. Stat.
§ 244.10, subd. 5a (2022). “[A]ggravating factors may not be used to impose an upward
sentencing departure for a crime of conviction when the aggravating factor is an element
of that same offense.” Vanengen, 3 N.W.3d at 583. One aggravating factor permitting an
upward sentencing departure is that “[t]he offense was committed in a location in which
the victim had an expectation of privacy.” Minn. Sent’g Guidelines 2.D.3.b(14); Minn.
Stat. § 244.10, subd. 5a(a)(14). An upward durational sentencing departure is justified
under such circumstances because the victim must “contend psychologically not only with
the fact that [they were] sexually assaulted in a brutal way but also with the fact that [their]
home is no longer the island of security that [they] perhaps thought it was.” State v.
Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982).
An invasion of the victim’s zone of privacy is not an element of the offense for
which Hernandez was convicted. The elements of Minn. Stat. § 609.342, subd. 1a(h)(iii),
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are that a person engaged in penetration with anyone under 18 years of age, and (1) “the
complainant was under 16 years of age at the time of the act ,” (2) “the actor has a
significant relationship to the complainant,” and (3) “the sexual abuse involved multiple
acts committed over an extended period of time.” In the factual basis for the plea,
Hernandez admitted that he penetrated his 14-year-old stepdaughter’s vagina with his penis
multiple times in April 2024 and that the acts occurred in his stepdaughter’s bedroom. To
prove the significant relationship element of the offense, the state relied on Hernandez’s
status as the victim’s stepparent, not that Hernandez was “an adult who jointly resides
intermittently or regularly in the same dwelling as the complainant and who is not the
complainant’s spouse.” See Minn. Stat. § 609.341, subd. 15(1), (3) (2022) (defining a
“[s]ignificant relationship”). Accordingly, there is no reference to Hernandez and the
victim living together in the factual basis for the plea. And even if the state had relied on
Hernandez and the victim living together, that does not necessarily mean that the zone-of-
privacy aggravating factor would be precluded. Compare Minn. Stat. § 244.10,
subd. 5a(a)(14) (providing that the zone-of- privacy aggravating factor means that “the
offense was committed in a location in which the victim had an expectation of privacy”),
with Minn. Stat. § 609.341, subd. 15(3) (stating that a “[s]ignificant relationship” means
the actor is “an adult who jointly resides intermittently or regularly in the same dwelling
as the complainant and who is not the complainant’s spouse”).
We are unpersuaded by Hernandez’s attempt to equate the significant-relationship
element of the offense —the “who”— with the location where Hernandez perpetrated the
offense—the “where.” The supreme court has made clear that the “zone-of-privacy factor
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focuses solely on where the offense was committed and not on the type of case committed
or how it was committed.” Vanengen, 3 N.W.3d at 585. The supreme court concluded that
“if the facts show that an offense is ‘committed in a location in which the victim had an
expectation of privacy,’ a district court has discretion to impose an upward departure.’” Id.
(quoting Minn. Sent’g Guidelines 2.D.3.b(14)).
During the factual basis for his plea, Hernandez admitted to penetrating his 14-year-
old stepdaughter’s vagina with his penis and that this encounter took place in his
stepdaughter’s bedroom, a place “that would be a zone where she would have some
privacy.” When the offender and the victim share a home, “the zone- of-privacy
aggravating factor is limited to a bedroom within their home.” State v. Mohamed, 779
N.W.2d 93, 100 (Minn. App. 2010). The district court therefore properly applied the plain
language of the zone- of-privacy aggravating factor as a basis to impose an upward
sentencing departure. See Minn. Stat. § 244.10, subd. 5a(14); Minn. Sent’g Guidelines
2.D.3.b(14); Vanengen, 3 N.W.3d at 585.
2 Because the district court’s reasons for granting
the upward durational departure are “legally permissible and factually supported in the
record,” we discern no abuse of discretion. Edwards, 774 N.W.2d at 601.
Affirmed.

2 Accordingly, we decline to consider Hernandez’s argument that the presence of the zone-
of-privacy aggravating factor did not make this offense “significantly more serious than
typical.”