                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1662

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                           Jermaine Octavious Stansberry,
                                     Appellant.

                                Filed August 4, 2014
                                      Affirmed
                                    Smith, Judge

                            Hennepin County District Court
                             File No. 27-CR-02-070442

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
appellant)

      Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and

Smith, Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

       We affirm appellant’s sentence for his conviction of aiding and abetting first-

degree aggravated robbery because the double durational departure is supported by a

substantial and compelling reason to depart from the Minnesota Sentencing Guidelines.

                                          FACTS

       During the September 1, 2002 robbery of D.H. and the shooting of B.H., D.H. was

beaten and B.H. was killed. The state charged appellant Jermaine Octavious Stansberry

with three criminal counts: (1) second-degree murder, (2) aiding and abetting first-degree

aggravated robbery, and (3) prohibited person in possession of a firearm. The jury found

Stansberry guilty as charged and the district court imposed a sentence for each

conviction; for the aiding and abetting first-degree aggravated robbery conviction, the

district court imposed a double durational departure from the presumptive guidelines

sentence.1 The district court based the departure on the number of assailants and the

severe nature of the beating.

       Following the United States Supreme Court’s decision in Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531 (2004), Stansberry challenged his enhanced sentence in a

petition for postconviction relief. The district court ordered a Blakely trial. After various

delays (attributable to Stansberry) and inaction on both sides, Stansberry moved to either


1
 Based on Stansberry’s criminal-history score, the presumptive guidelines sentence is 58
months’ imprisonment; the presumptive sentencing-guidelines range is 54-62 months’
imprisonment. Minn. Sent. Guidelines IV (2002). The district court imposed a sentence
of 116 months’ imprisonment.

                                             2
reduce his enhanced sentence to the presumptive 58-month sentence or to schedule a

Blakely trial, as previously ordered. The district court again ordered a Blakely trial.

       The state sought an upward durational departure based on two aggravating factors:

(1) D.H. was treated with particular cruelty, and (2) Stansberry committed the crime as

part of a group of three or more persons who all actively participated in the crime. See

Minn. Sent. Guidelines II.D.2.b.(2), (10) (2002). The Blakely jury was given a verdict

form with nine factual questions. The jury answered eight of these questions in the

affirmative. Specifically, the jury found that Stansberry committed the crime as part of a

group of three or more people who all actively participated in the crime; Stansberry or his

accomplices punched D.H., knocked D.H. to the ground, and kicked D.H. while D.H. was

on the ground; and D.H. lost consciousness, sustained an injury to his lip, sustained an

injury to his forehead, and sustained an injury to his arm. The district court concluded

that because Stansberry committed the crime as part of a group of three or more active

participants, an upward departure was warranted; the district court declined “to decide

whether particular cruelty is a separate independent ground[] for departure.”             After

identifying the reason for the departure, the district court considered all of the Blakely

jury’s findings and determined that a double durational departure from the presumptive

guidelines sentence is “fair and proper.”

                                      DECISION

       Stansberry challenges the sentence for his conviction of aiding and abetting first-

degree aggravated robbery, arguing that there are not substantial and compelling reasons

to depart from the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines II.D.


                                              3
(2002). When a departure from the presumptive sentencing guidelines range is justified

by proper grounds, we review a district court’s decision to depart for an abuse of

discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003); Dillon v. State, 781

N.W.2d 588, 594-95 (Minn. App. 2010), review denied (Minn. July 20, 2010). But “the

question of whether the district court’s reason for the departure is ‘proper’ is treated as a

legal issue,” which we review de novo. Dillon, 781 N.W.2d at 595. “The presence of a

single aggravating factor is sufficient to uphold an upward departure.” State v. Rushton,

820 N.W.2d 287, 289 (Minn. App. 2012). However, reversal is warranted when the

reasons for the departure are improper or inadequate and the district court’s findings do

not support the departure on other grounds. Taylor, 670 N.W.2d at 588; Dillon, 781

N.W.2d at 595.

                                             A.

       Stansberry argues that because he was charged with aiding and abetting first-

degree aggravated robbery, “the involvement of other individuals [is] an essential

element of the charge” and, therefore, the three-or-more-persons aggravating factor

cannot support a departure. See Minn. Sent. Guidelines II.D.2.b.(10) (2002). It is true

that “the district court may not base an upward departure on facts necessary to prove

elements of the offense being sentenced.” State v. Edwards, 774 N.W.2d 596, 602

(Minn. 2009). But “aiding and abetting is not a separate substantive offense.” State v.

Ostrem, 535 N.W.2d 916, 922 (Minn. 1995). Rather, it is a theory of liability. See Minn.

Stat. § 609.05 (2002) (liability for crimes of another); Ostrem, 535 N.W.2d at 922-23

(concluding that the district court did not abuse its discretion by “submitting the case to


                                             4
the jury under an aiding and abetting theory even though the complaint” did not cite

Minn. Stat. § 609.05). And this theory of liability requires only two participants. Minn.

Stat. § 609.05 (providing that “[a] person is criminally liable for a crime committed by

another person if the person intentionally aids, advises, hires, counsels, or conspires with

or otherwise procures the other to commit the crime” (emphasis added)). Addressing the

crime of conspiracy, we recently concluded that, because it “requires only two

participants and only one active participant . . . an upward departure can be based on the

involvement of three or more active conspirators.” State v. Ayala-Leyva, __ N.W.2d __,

__, 2014 WL 2013325, at *10 (Minn. App. May 19, 2014).               Similarly, because a

conviction under an aiding-and-abetting theory requires only two participants, grounding

a departure in the three-or-more-persons aggravating factor is not improper.

       Stansberry also contends that the presence of this aggravating factor is not, by

itself, sufficient. Rather, he argues, “the context of the events needs to be considered

before using this factor to justify an upward departure.” But Stansberry cites no authority

supporting this assertion. And the comments to the Minnesota Sentencing Guidelines

state that the aggravating factors “are intended to describe specific situations involving a

small number of cases.” Minn. Sent. Guidelines cmt. II.D.201 (2002). The Blakely jury

found that this case is among the small number of cases that satisfies the three-or-more-

persons aggravating factor. Moreover, although Stansberry implies that D.H. may have

been the aggressor because he approached Stansberry, the record establishes that D.H.

did so to ask Stansberry to stop arguing with a woman; in response, Stansberry and two




                                             5
male companions committed the offense at issue. The district court did not err by basing

the upward departure on the three-or-more-persons aggravating factor.

                                            B.

       Stansberry also argues that the district court erred by basing the upward departure

on the particular-cruelty aggravating factor. See Minn. Sent. Guidelines II.D.2.b.(2)

(2002). But Stansberry misconstrues the record. The district court specifically based the

departure on the three-or-more-persons aggravating factor and declined “to decide

whether particular cruelty is a separate independent grounds for departure.” After the

district court found a substantial and compelling reason to depart, it considered all of the

Blakely findings to determine “how long the departure should be.” Not only does this

comport with the Minnesota Sentencing Guidelines, which state that a departure should

take into account “the severity of the offense,” Minn. Sent. Guidelines II.D (2002), but

we also “generally defer entirely to the district court’s judgment on the proper length of

departures that result in sentences of up to double the presumptive term,” Dillon, 781

N.W.2d at 596. The district court did not abuse its discretion by imposing a double

durational departure from the presumptive guidelines sentence.2

       Affirmed.



2
  We acknowledge that Stansberry also asserts that “[a] likely reason for the double
upward departure in what was otherwise a quick fight at bar close is that [B.H.] was shot
and killed an hour later.” Stansberry cites no evidence in support of this assertion.
Because “[a]n assignment of error based on mere assertion and not supported by any
argument or authorities” is waived unless prejudicial error is obvious on mere inspection,
State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation
omitted), and because no error is obvious, Stansberry has waived this argument.

                                             6
