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This opinion is nonprecedential except as provided by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

A23-0447

State of Minnesota,

Respondent,

vs.

Tarik Toyshawn Smith-Whitmore,

Appellant.

Filed February 5, 2024

Affirmed

Reyes, Judge

Hennepin County District Court

File No. 27-CR-20-21536

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Reilly, 

Judge.

∗

 

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION

REYES, Judge

Appellant challenges his sentence following his conviction of third-degree assault, 

arguing that the district court abused its discretion by denying his motion for a downward 

durational departure. We affirm.

FACTS

In September 2020, appellant Tarik Toyshawn Smith-Whitmore assaulted a male 

victim by pushing him to the ground then punching and kicking him multiple times before 

fleeing. Appellant’s assault caused the victim to lose consciousness and suffer a traumatic 

brain injury. Respondent State of Minnesota charged appellant with third-degree assault 

under Minn. Stat. § 609.223, subd. 1 (2020). 

Early in the proceedings, the district court ordered that appellant undergo a 

competency evaluation under Minn. R. Crim. P. 20.01. In January 2021, Dr. Katheryn 

Cranbrook filed a forensic psychological evaluation opining that appellant was not 

competent to proceed further with the case. Based on Dr. Cranbrook’s evaluation, the 

district court found appellant incompetent to stand trial and suspended the criminal 

proceedings until appellant regained competency. 

In September 2021, the district court found that appellant had regained competency 

and could proceed to trial. At appellant’s request, the district court ordered a defense-ofmental-illness examination under Minn. R. Crim. P. 20.02. In November 2021, 

Dr. Cranbrook filed a forensic psychological evaluation opining that there was insufficient 

evidence to determine that, at the time of the offense charged, appellant was “laboring 
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under such a defect of reason as not to know the nature of the act or that it was wrong.” 

Appellant filed a separate rule 20.02 forensic psychological evaluation performed by 

Dr. Tricia Aiken, which opined that appellant did not know the moral wrongfulness of his 

actions at the time of the offense and therefore could not be held legally responsible for his 

assault. 

Appellant waived his right to a jury trial and elected to proceed with a court trial 

based on stipulated evidence under Minn. R. Crim. P. 26.01, subd. 3. In September 2022, 

the district court held the trial and heard testimony from Dr. Cranbrook and Dr. Aiken. The 

district court was not persuaded that appellant’s conduct was the product of his mental 

illness, rejected appellant’s mental-illness defense, and found appellant guilty of thirddegree assault. 

Consistent with the Minnesota Sentencing Guidelines, appellant’s felony presentence-investigation (PSI) report recommended that appellant be committed to prison for 

12 months and 1 day with a stay of execution for three years and supervised probation. 

Appellant filed a motion for a downward durational departure, arguing that his mental 

condition at the time of the offense was a substantial and compelling circumstance that 

would permit the district court to sentence the charge as a gross misdemeanor, that he had 

no prior felony convictions and a well-documented history of mental-health episodes, that 

he had remained law-abiding since the offense date, and that he had expressed remorse for 

the crime. 

At the beginning of appellant’s sentencing hearing in December 2022, the district 

court stated on the record that it had reviewed the PSI report, had received appellant’s 
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motion for a downward durational departure, and was prepared to proceed with sentencing. 

Appellant renewed his motion for a departure, alternatively requesting a stay of imposition

of his sentence. The state opposed appellant’s motion, arguing that the severity of 

appellant’s conduct and the lasting impact to the victim supported imposing the 

presumptive sentence. The district court gave appellant an opportunity to speak, and

appellant expressed remorse for the offense. The district court acknowledged appellant’s 

statements by noting, “I have heard you. And I’m going to take that into consideration.” 

The district court then immediately ordered a presumptive guidelines sentence of a stay of 

imposition of sentence for three years with supervised probation and for appellant to serve

137 days in jail with credit for 137 days already served. 

This appeal follows.

DECISION

Appellant seeks remand for a new sentencing hearing, arguing that the district court 

abused its discretion by not deliberately considering the mitigating circumstances, 

including his mental impairment, that supported his motion for a downward durational 

departure. We are not persuaded.

The Minnesota Sentencing Guidelines establish presumptive sentences for felony 

offenses. Minn. Stat. § 244.09, subd. 5 (2022). Absent “identifiable, substantial, and 

compelling circumstances,” a district court must order the presumptive sentence provided 

in the sentencing guidelines. Minn. Sent’g Guidelines 2.D.1 (2020); State v. Pegel, 795 

N.W.2d 251, 253 (Minn. App. 2011). “Substantial and compelling circumstances [to 

support a durational departure] are present when the defendant’s conduct in the offense of 
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conviction was significantly more or less serious than that typically involved in the 

commission of the crime in question.” State v. Abrahamson, 758 N.W.2d 332, 337-38 

(Minn. App. 2008) (quotation omitted), rev. denied (Minn. Mar. 31, 2009). “A durational 

departure must be based on factors that reflect the seriousness of the offense, not the 

characteristics of the offender,” which narrows the range of factors justifying a durational 

departure. State v. Solberg, 882 N.W.2d 618, 623-24 (Minn. 2016). 

If substantial and compelling circumstances exist, “[t]he decision whether to depart 

from [the] sentencing guidelines rests within the discretion of the [district] court.” State v. 

Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), rev. denied (Minn. Aug. 22, 2001). A 

district court abuses its discretion when it misapplies the law or its decision is contrary to 

the facts in the record. State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017). 

An appellate court cannot interfere with a district court’s exercise of discretion “as 

long as the record shows the [district] court carefully evaluated all the testimony and 

information presented before making a determination.” Pegel, 795 N.W.2d at 255 

(quotation omitted). If a district court considers reasons for departure but imposes a 

presumptive sentence, it is not required to explain its reasons for doing so on the record. 

State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). Only in rare cases will an 

appellate court reverse a district court’s imposition of a presumptive sentence. State v. 

Olson, 765 N.W.2d 662, 664 (Minn. App. 2009).

Here, the district court stated at the beginning of the sentencing hearing that it had 

reviewed the PSI report, which directly addressed appellant’s recollection of the charged 

offense, as well as appellant’s mental-health history, criminal history, and expressed 
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remorse. The district court acknowledged that it had received appellant’s motion for a 

downward durational departure, and then listened to the parties’ arguments regarding 

departure and appellant’s personal statement. The district court was familiar with the 

case’s procedural history and appellant’s fluctuating mental-health status. Moreover, the 

district court granted appellant the alternative disposition he requested: a stay of imposition

of sentence. The record therefore supports that the district court deliberately and carefully 

considered all of the pertinent testimony and information presented before ordering the 

presumptive sentence. See Pegel, 795 N.W.2d at 255. 

Appellant further argues that the district court abused its discretion by failing to 

consider his mental impairment before declining to depart downward. If a defendant 

“lacked substantial capacity for judgment” at the time of the offense because of a mental 

impairment, that may be a mitigating factor on which the district court relies to justify 

departure. Minn. Sent’g Guidelines 2.D.3.a (2020). For a mental impairment to constitute 

a mitigating factor in sentencing, a defendant’s impairment must be so extreme that it 

“deprives the defendant of control over [their] actions.” State v. McLaughlin, 725 N.W.2d 

703, 716 (Minn. 2007). 

Appellant’s argument fails for several reasons. First, as noted above, the district 

court need only consider reasons for a departure and does not need to explain its reasons 

when imposing a guidelines sentence. Van Ruler, 378 N.W.2d at 80. Here, the district 

court knew of appellant’s mental-health history and his related arguments for departure. 

Second, even if substantial and compelling reasons to depart existed, the district court did 

not need to depart. Pegel, 795 N.W.2d at 253-54. 
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Third, appellant’s reliance on State v. Martinson, 671 N.W.2d 887 (Minn. App. 

2003), rev. denied (Minn. Jan. 20, 2004), and State v. Barsness, 473 N.W.2d 325 (Minn. 

App. 1991), rev. denied (Minn. Aug. 29, 1991), to support that his mental impairment is a 

mitigating factor is misguided. In Martinson, this court upheld a downward durational 

departure based on the defendant’s extreme mental impairment. 671 N.W.2d at 891-92. 

In Barsness, this court upheld a downward durational departure when the district court 

cited evidence that, when the offense was committed, appellant was borderline mentally 

disabled, chemically dependent, and “suffering from major, severe depression.” 473 

N.W.2d at 329. Here, the district court did not depart but rather ordered a stay of 

imposition, which is a guidelines sentence. Further, the district court credited the expert 

testimony of Dr. Cranbrook at trial regarding appellant’s mental status at the time of the 

offense. Appellant’s cited cases are inapposite.

We conclude that the district court did not abuse its discretion by ordering a 

presumptive guidelines sentence despite appellant’s request for a downward durational 

departure.

Affirmed.