(concurring).
I concur in the result. I write separately because the court of appeals invented and applied an objective, “reasonable person” rule that has no support in the Minnesota Sentencing Guidelines or in our jurisprudence. In my view, the approach taken by the court of appeals in this case is an error of law that must be corrected, and the majority opinion glosses over the error and opens the door to similar errors in other sentencing cases.
I begin with a brief outline of the jurisprudence that governs this case. When sentencing a criminal defendant, a district court may depart from the presumptive penalty defined by the Sentencing Guidelines if “there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the [guideline] grids.” Minn. Sent. Guidelines II.D. We have explained that
[t]he phrase “there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grids,” reflects two distinct requirements for an upward sentencing departure: (1) a factual find*590ing that there exist one or more circumstances not reflected in the guilty verdict or guilty plea, and (2) an explanation by the district court as to why those circumstances create a substantial and compelling reason to impose a sentence outside the range on the grid.
State v. Rourke, 773 N.W.2d 913, 919 (Minn.2009).
In Rourke, we referred to the circumstances not reflected in the verdict or guilty plea as “additional facts.” Id. at 919 n. 5. To satisfy the first Rourke requirement, the additional facts must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Id.; see also Blakely v. Washington, 542 U.S. 296, 301, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When a court, in accordance with the second Rourke requirement, explains why the additional facts warrant a sentence greater than a presumptive guideline sentence, the court may rely on the nonexclusive list of reasons set forth in the Sentencing Guidelines. See Minn. Sent. Guidelines II.D.
Included in the Sentencing Guidelines list of reasons is the aggravating factor that the “victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b(2). As the majority states, we explained in Rourke that the “particular cruelty” explanation is adequate when the cruelty involved in a crime is “of a kind not usually associated with the commission of the offense in question.” See supra at 586 (citing Rourke, 773 N.W.2d at 922 (citation omitted) (internal quotation marks omitted)). We have defined “cruelty” as the “[gratuitous infliction of pain.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981).
Failure to obtain medical care for a victim is not included in the guidelines list of aggravating factors. On two occasions, we have affirmed a sentencing departure explanation that has referenced a defendant’s failure to obtain medical care for the victim. State v. Jones, 328 N.W.2d 736, 738 (Minn.1983); State v. Stumm, 312 N.W.2d 248, 249 (Minn.1981). In those cases, the defendant’s failure to obtain medical care for the victim involved an intentional act that gratuitously prolonged the victim’s suffering. See Jones, 328 N.W.2d at 737 (noting that Jones left the badly beaten victim alone in his apartment); Stumm, 312 N.W.2d at 249 (noting that Stumm did not inform the mother of a two-year-old that he had struck the child while caring for the child, even after the child vomited several times after the assault, and affirming the decision of the district court to impose an aggravated sentence in part on Stumm’s indifference toward caring for the child after the beating). We recently noted that these failure-to-seek-aid cases were decided in the “early stages of the determinate [sentencing] guidelines system” and that guidelines have “since been adjusted, substantially increasing sentence durations.” State v. Jones, 745 N.W.2d 845, 849 (Minn.2008) (citation omitted) (internal quotation marks omitted).
In accord with Rourke, I consider the proper question to be answered here is whether a “particular cruelty” explanation provides a substantial and compelling reason to depart from the presumptive sentence based on the additional facts admitted by Tucker. I first consider the additional facts admitted by Tucker.
Tucker pleaded guilty to second-degree unintentional felony murder. His guilty plea reflected his admission that he caused Garley’s death while committing a felony assault, without intending to cause her death or the death of any person. See *591Minn.Stat. § 609.19, subd. 2(1) (2010). Relevant to this appeal, Tucker admitted at his guilty plea hearing that he called 911 after the shooting to report that his gun had been stolen, and not to report that Garley needed medical assistance. And the following exchange occurred:
[THE STATE]: And you would agree that you didn’t do anything that evening to try to get [Garley] help so that she might have recovered from these injuries?
[TUCKER]: I didn’t know she was hurt.
[THE STATE]: But after you shot her you didn’t call for help[,] correct?
[TUCKER]: I didn’t know I shot her, ma’am, but yes.
The State did not challenge Tucker’s assertion that he did not know Garley was shot or hurt. The State did not develop facts that shed light on the credibility of Tucker’s statement that he did not know Garley was shot or hurt. For example, the State did not ask whether Tucker could see Garley when he fired the gun, nor whether Tucker saw that the bullet hit the windshield. The State did not ask what Tucker did after he fired the gun, nor how long Tucker remained at the scene. Without additional factual information about Tucker’s conduct at the scene of the shooting, I conclude that the only additional facts in the record that are possibly relevant to whether an upward departure for particular cruelty is warranted are, first, that Tucker did not render or obtain aid for Garley when he called 911 or at any other time, and, second, that Tucker did not know that Garley was hit by the bullet or injured.
I would hold that based on the additional facts admitted by Tucker, a “particular cruelty” explanation does not provide a substantial and compelling reason to depart from the Sentencing Guidelines. I reach this result because, unlike the defendants in Jones and Stumm, Tucker did not admit any additional facts demonstrating that his failure to obtain medical care for Garley gratuitously prolonged her suffering.
Contrary to our sentencing jurisprudence, the court of appeals reached beyond the facts of this case and considered not only what Tucker did, but also what “[a] reasonable person in Tucker’s circumstances, even lacking verification of [Garley’s] injury, would have to assume” about what happened to Garley. Tucker v. State, 111 N.W.2d 247, 251 (Minn.App.2010). The court asserted that a reasonable person in Tucker’s circumstances “would have to assume that a bullet fired ... into the area of a car in which another person was seated likely hit and injured that person.” Id. The court concluded: “Whether [Tucker] actually knew of [Garley’s] injury is not dispositive because Tucker should have known of that possibility. His ‘particular’ cruelty — beyond that of the crime itself— was his indifference as to whether [Garley] was in fact injured and needed medical attention.” Id.
To reach this conclusion, the court of appeals rejected the “[s]terile logic” that “an offender cannot be accused of failing to aid an injured victim if the offender is not aware of the injury” and instead offered the following “interpretation” of particular cruelty:
When an offender’s conduct is sufficiently egregious that a reasonable person in the same circumstances would suspect that the conduct very likely caused injury to the victim, it is particularly cruel for the offender to fail to take some meaningful step, even anonymously, towards obtaining at least an investigation so as to be able to give medical aid to the victim if an examination reveals that aid is necessary.
Id. The court of appeals concluded that its interpretation of particular cruelty was *592consistent with Minnesota sentencing-departure jurisprudence. See id. The court was wrong.
First, the court of appeals, and on appeal to us, the State, cite no precedent from our court that holds an offender responsible for particular cruelty in the sentencing context based on something the offender should have known. I also have found no precedent that holds an offender responsible for particular cruelty based on something the offender should have known. Similarly, we also have never found an offender responsible for particular cruelty based on an outcome that a “reasonable person ... would suspect” was “very likely” to have followed the offender’s conduct. Moreover, the text of the Sentencing Guidelines undercuts the approach taken by the court of appeals. The Sentencing Guidelines list as an aggravating factor that the victim of an offense “was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.” Minn. Sent. Guidelines II.D.2.b(l). The inclusion of “should have been known” in the particular vulnerability factor stands in contrast to the absence of any such language in the particular cruelty factor, which reads in full: “The victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b(2).
Second, as support for its “reasonable person” standard for evaluating particular cruelty, the court of appeals relied primarily upon our decision in Stumm. See Tucker, 777 N.W.2d at 251. But Stumm provides no support. In Stumm, the defendant was convicted of second-degree manslaughter for causing the death of his girlfriend’s two-year-old child by culpable negligence. 312 N.W.2d at 248 (citing Minn.Stat. § 609.205(1) (1980)). Evidence established that the defendant struck the child in the chest more than once while the defendant was babysitting the child, that one of the blows lacerated the child’s small intestine, and that the lacerated intestine led to an infection that killed the child the next day. Id. The defendant put the child to bed after the beating, and over the four hours that followed, checked on the child twice. Id. Each time, the defendant discovered that the child had vomited but left the child in bed after cleaning up the messes. Id. The defendant told the child’s mother that the child had vomited after she discovered a third episode of vomiting more than seven hours after the beating. Id. But the defendant did not tell the mother that he had hit the child before the vomiting began. Id. At sentencing, the district court explained that an upward departure was justified “first of all” by the child’s particular vulnerability due to age; by the “particular cruelty and violence administered against this child in the form of the striking ... with a fist”; and by the “apparent indifference toward caring for that child after initiating that beating.” Id. We affirmed, finding that the reasons cited by the district court were valid and also “that the circumstances of the offense and the absolute vulnerability of the helpless victim” were sufficient to support an upward departure. Id.
We did not use the phrase “reasonable person” in Stumm. See 312 N.W.2d at 248. Yet, in this case, the court of appeals asserted that, in Stumm, “[a] reasonable person would have considered the possibility that such a beating would cause some injury to an infant and the particular cruelty lay in the offender’s failure to inquire further and failure to obtain medical help if necessary.” Tucker, 777 N.W.2d at 251. The assertion of the court of appeals is contradicted by the express statement of the district court in Stumm that the “particular cruelty” related to the beating itself — and not to the indifference that followed the beating. See 312 N.W.2d at 249. Stumm does not support the “reasonable *593person” approach of the court of appeals. And Stumm, is distinguishable from this case, in that the defendant in Stumm had actual knowledge that he beat the child— unlike here, where nothing in the record demonstrates that Tucker knew Garley was hurt.
Finally, I also write separately to underscore that the majority opinion relies upon our statement in Rourke that “particular cruelty involves gratuitous infliction of pain and cruelty of a kind not usually associated with the commission of the offense in question,” 773 N.W.2d at 922 (citation omitted) (internal quotation marks omitted), to decide this case. I underscore this point because of my concern regarding judicially-created limitations on upward sentencing departures.1 Nothing in the majority opinion should be read to alter or add to Rourke. As outlined earlier, the Sentencing Guidelines and our jurisprudence allow a district court to depart from the presumptive penalty if the departure is based on an additional fact not reflected in a guilty verdict or guilty plea and if the additional fact creates a substantial and compelling reason to impose a sentence outside the range of the grid. See Rourke, 773 N.W.2d at 919. In this case, the court of appeals conceded that there is no evidence that Garley would have survived if Tucker had sought aid. Tucker, 777 N.W.2d at 252. And the court of appeals candidly stated that it could “only speculate” about Garley’s survival, but described the possibility she might have lived if help had been called to be “at least arguable.” Id. It may be true, as the majority asserts, that the shooting “inflicted great pain on Garley.” Supra at 587. But the court of appeals’ speculation and the majority’s assumption are not additional facts that may support an upward sentencing departure. Rather, Rourke and our existing jurisprudence lead to the conclusion that the rationale underlying the “particular cruelty” sentencing factor — that a person should be held accountable when the person gratuitously inflicts pain in a manner not usually associated with the commission of the offense in question — fails to explain why the additional facts admitted by Tucker provide a substantial and compelling reason to depart from the presumptive sentencing range. I would reverse on that basis.
. For example, in State v. Jackson we held, in part, that the nature of victim’s injuries could not be used as an aggravating factor because the injuries constituted the uncharged offense of third-degree assault. 749 N.W.2d 353, 357-58 (Minn.2008). Because Minn.Stat. § 609.035, subd. 1 (2010), would have prohibited multiple punishments for aggravated robbery and third-degree assault (if third-degree assault had been charged), we reasoned that it was equally improper to allow multiple punishments (in the form of an enhanced sentence) when the third-degree assault was not charged. Jaclcson, 749 N.W.2d at 358. We therefore held that the victim's injuries could not be used to support a sentencing departure. Id. We reached this conclusion even though the Sentencing Guidelines gave no hint, let alone a specific command, that a victim's injuries could not be used to support a departure. (I note that the Legislature statutorily overruled the restriction adopted in Jackson, in 2009, when the Legislature adopted Minn.Stat. § 244.10, subd. 5a(b) (2010), which states that "[njotwithstanding section 609.04 or 609.035, or other law to the contrary” the “court may order an aggravated sentence ... based on any aggravating factor arising from the same course of conduct.”)