                           This opinion will be unpublished and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
                                      A14-0617

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                     David John Ojeda,
                                        Appellant.

                                 Filed September 15, 2014
                                         Affirmed
                                       Smith, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-24475

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

Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Lee W. Barry, III,
Assistant County Attorneys, Minneapolis, Minnesota (for respondent)

Daniel C. Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION
SMITH, Judge

         We affirm appellant David John Ojeda’s sentence because the district court did not

abuse its discretion by denying his motion for a dispositional departure and imposing the

presumptive guidelines sentence.
                                        FACTS

      Ojeda received oral sex from and performed oral sex on six-year-old A.B. on two

occasions. A.B. is the daughter of Ojeda’s then-girlfriend, K.O. Ojeda was living with

K.O. and A.B. at the time and admitted the conduct to K.O. in a series of text messages.

K.O reported the conduct to police. After A.B. corroborated Ojeda’s admission in a

police interview, respondent State of Minnesota charged Ojeda with one count of first-

degree criminal sexual conduct.

      Ojeda entered a guilty plea, which the district court accepted. At the sentencing

hearing, the district court heard victim-impact statements from K.O. and A.B.’s

grandmother, and a social worker read a statement from A.B., who was present in the

courtroom. Ojeda also made a statement. Ojeda’s father interrupted the proceedings and

the district court threatened him with contempt before defense counsel asked him to leave

the courtroom. Ojeda had moved for a dispositional departure, and the prosecutor and

Ojeda’s counsel presented arguments on that motion. The district court summarized the

arguments for and against a departure, declined to depart, and imposed the presumptive

sentence.

                                    DECISION

      “We review a sentencing court’s departure from the sentencing guidelines for

abuse of discretion.” State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). The district

court may grant a downward departure only when it is warranted by “substantial and

compelling reasons.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). When there are

substantial and compelling reasons, whether to depart is within the district court’s


                                           2
discretion. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). We are “extremely

differential” to the district court’s decision whether to depart.      Dillon v. State, 781

N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn. July 20, 2010). “[I]t would

be a rare case which would warrant reversal of the refusal to depart.” Kindem, 313

N.W.2d at 7.

       Ojeda asserts that “this is the rare case where reversal is warranted,” and supports

that assertion by arguing that the district court (1) failed to deliberately consider experts’

opinions; (2) mischaracterized Ojeda’s family and community support; and (3) placed

undue emphasis on language Ojeda used.

                                              I.

       Before the plea hearing, the district court ordered a pre-plea investigation and a

pre-plea psychosexual evaluation, and continued the proceedings to allow for these steps

to occur. Defense counsel obtained a private psychosexual evaluation during the same

timeframe. The expert who completed the court-ordered psychosexual evaluation opined

that Ojeda presented a “low-moderate” risk of reoffending and “is amenable to long-term

intensive outpatient sex offender treatment.” The private evaluator similarly opined that

Ojeda presented “a [l]ow-[m]oderate risk for committing a future sex offense” and that

“[t]his risk level is suitable for community supervision,” assuming compliance with

specific treatment recommendations.

       Ojeda argues that the district court failed to deliberately consider the opinions of

these experts. He cites State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984), for the

proposition that, when compelling circumstances for a departure exist, the district court


                                              3
must deliberately consider them before imposing the presumptive sentence. Although

Curtiss supports that proposition, Ojeda’s reliance is misplaced. In Curtiss, the district

court found that “there [was] no justifiable reason to deviate” from the presumptive

sentence. Id. at 263. We disagreed, pointed to factors militating for and against a

downward departure, and decided that “the departure topic was abandoned before the

[district] court exercised its broad discretion [by] comparing reasons for and against

departure. Id. We remanded for resentencing, concluding that “[t]his is not that rare case

where we interfere with the exercise of discretion, but a case where the exercise of

discretion has not occurred.” Id. at 264.

       This case is unlike Curtiss because the record here shows that the district court did

exercise its discretion. The district court acknowledged that several factors, including the

experts’ opinions, supported departure. It also discussed factors that weighed against

departure.   The district court did not discuss the experts’ reports at length, but

acknowledged that “two mental health experts believe [Ojeda] can be treated.” Ojeda

complains that apart from that acknowledgment, the district court “did not address why,

in this particular case, prison was a better alternative for Mr. Ojeda or society.” Ojeda

seems to suggest that the district court had a duty to explain—before it could impose the

presumptive sentence—why non-departure is in his best interest, or that of society. No

such duty exists. To the contrary, a district court must explain a decision to depart in

writing, but a district court’s authority to impose the presumptive sentence is not

predicated on its delivery of a detailed explanation of its reasons for doing so. See id. at

263 (explaining that “[t]he [district] court must explain in writing a decision to depart,


                                             4
but a written explanation is not required when the court considers reasons for departure

but elects to impose the presumptive sentence”) (citing Minn. Sent. Guidelines II.D;

Minn. R. Crim. P. 27.03(4)(C)).

       We conclude that Ojeda’s argument lacks merit because the record shows that the

district court did consider the experts’ opinions and exercised its broad discretion before

imposing the presumptive sentence.

                                            II.

       The record includes three letters of support that were submitted before the

sentencing hearing—one from a former girlfriend with whom Ojeda shares a child, one

from his ex-wife with whom he shares two children, and one from his mother. Those

three women were present at the sentencing hearing, along with Ojeda’s father. The

letters they submitted characterize Ojeda as a good father, hard-working, dutiful, and big-

hearted. The district court noted Ojeda’s support but concluded that it could not find that

Ojeda had “appropriate support.”

       Ojeda argues that the district court mischaracterized his support and that its

mischaracterization “was inaccurate and an abuse of discretion.”           We reject this

argument because evidence in the record justifies the district court’s doubts about Ojeda’s

support. For instance, as K.O. approached the lectern to give a victim impact statement,

Ojeda’s father called her a “b-tch,” interrupted the proceedings in an effort to speak on

Ojeda’s behalf and called out, “[b]unch of lies.” Additionally, although the district court

did not discuss the pretrial investigation, that report also casts doubt on the

appropriateness of Ojeda’s support. Ojeda’s ex-wife, who submitted one of the letters of


                                            5
support, told the investigator that she believed that A.B.’s version of events was “planted

into [A.B.s] head by [K.O.].” Thus the record provides support for the district court’s

conclusion that Ojeda lacks appropriate support.

                                            III.

       In explaining its decision, the district court referred to two statements Ojeda made

about the incidents. First, the district court noted that when Ojeda described the factual

basis for his guilty plea, he stated that during the first sexual encounter with A.B. he

“allowed” her to put her mouth on his penis, and used similar words to describe the

second encounter.1 The district court characterized Ojeda’s choice of words as indicating

that Ojeda might believe that A.B. shared responsibility for what happened. Second, the

district court mentioned a text-message exchange between Ojeda and K.O. in which K.O.

expressed her distress at what had happened and Ojeda responded by asking, “Do you

want me to stop?” The district court opined that the text-message exchange suggests that

Ojeda might have considered continuing the conduct if K.O. had not objected.

       Ojeda argues that the district court’s suggestion that he deflected responsibility is

not consistent with his “early expression of responsibility and expression of remorse” or

the opinions of the experts that he is amenable to outpatient treatment. The district

court’s interpretation of the words Ojeda chose during the plea hearing does appear to be

inconsistent with his later statements accepting responsibility. But the resolution of such

1
  The district court quoted Ojeda as saying, “I let her put her mouth on my penis.” He
actually said, “I allowed her to perform oral sex on me, put her mouth on my penis,” in
reference to the first encounter, and “I allowed her to do it,” in reference to the second
encounter.


                                             6
inconsistencies falls squarely within the discretion of the district court. As for the text

message asking K.O. whether he should stop, Ojeda asserts that he “had in fact stopped

the abuse before it was reported” and claims that “[t]here was absolutely no evidence that

he might consider continuing the abuse.” But the facts can just as easily be interpreted as

supporting the district court’s concern that Ojeda might continue to offend. As the

district court noted, it counts in Ojeda’s favor that he is the one who reported the conduct.

But ultimately the meaning of Ojeda’s text-messaged question is ambiguous, and it is

within the district court’s broad discretion to decline to depart based on its first-hand

assessment of its meaning.

       In sum, we conclude that the district court did not abuse its discretion by imposing

the presumptive guidelines sentence.

       Affirmed.




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