This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-876

 

 

State of Minnesota,

Respondent,

 

vs.

 

Salvador Ed Vigil,

Appellant.

 

 

Filed January 7, 2003

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. KX004024

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Salvador Ed Vigil contends the district court abused its discretion in departing upward from the presumptive sentence for his first-degree assault conviction. We affirm.

FACTS

On the evening of December 15, 2000, Vigil had friends over to his parents' house for a party during which the group consumed alcohol and used marijuana. The party broke up about midnight, and the group left the home. When Vigil and the four other males reached the intersection of Livingston and King, they encountered Jacob Curtis, whom they did not know. Vigil stopped Curtis and asked where he was going. After Curtis said that he had just left work and was headed home, Vigil said "all right," and resumed talking with another member of the group.

Vigil then heard the sound of someone being hit. When he turned to look, he saw Curtis, who appeared to have been struck. As Curtis staggered toward him, someone in the group punched Curtis again, and he fell to the ground. The group then descended on Curtis with all five males punching and kicking him. Vigil admitted to kicking Curtis at least two times in the legs. Vigil also acknowledged making verbal threats toward Curtis.

Vigil said that he and one of the other males left the scene after the assault. Vigil conceded that he knew the victim was injured fairly severely as indicated by his bloodied face and the fact that he was unconscious. Curtis suffered a serious brain injury that left him in a coma for almost a month. Vigil did not attempt to stop the assault or offer or seek assistance for the victim. Instead, Vigil simply walked away.

Vigil was charged with aiding and abetting attempted second-degree murder and first-degree assault. Vigil agreed to plead guilty to the assault charge in exchange for a dismissal of the attempted murder charge and a sentence not to exceed 122 months. At sentencing the district court departed upward from the presumptive sentence of 86 months to the 122 month sentence cap. The district court cited a number of reasons for so departing: the randomness of the act, particular cruelty, and failure to render medical assistance to the victim.

D E C I S I O N

Departures from the presumptive sentences under the guidelines are reviewed under an abuse of discretion standard, but the record must contain "substantial and compelling circumstances" justifying the departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). The sentencing court must state its reasons for the departure on the record. State v. Schmidt, 601 N.W.2d 896, 898 (Minn. 1999). If the district court supplies its reasons for the departure, this court will review the record to determine whether the reasons supplied support the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the reasons supplied justify the departure, the departure will be affirmed. Id. If the reasons supplied are inadequate to justify the departure, but the record contains sufficient evidence indicating alternative, adequate grounds for the departure, the departure is allowed. Id.

The district court cited a number of reasons for the upward departure: (1) the crime was committed by a group of three or more; (2) the attack was unprovoked and random; (3) the assault was committed with particular cruelty as it continued after the victim was basically helpless; (4) and Vigil failed to render any assistance to the victim. As respondent correctly points out, the guidelines list "particular cruelty" and the commission of a crime "as part of a group of three or more persons" as valid grounds to warrant an upward departure. Minn. Sent. Guidelines II.D.2.b.(2) and (10). Kicking a victim after that victim has already fallen to the ground has been cited as a valid indication of "particular cruelty." Matter of Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000), State v. Anderson, 370 N.W.2d 703, 705-07 (Minn. App. 1987), rev. denied (Minn. Sept. 19, 1985). Also, the failure to render assistance has been acknowledged as a valid departure ground. State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983).

Vigil essentially concedes the validity of the factors the district court cited. Nonetheless, Vigil argues that because his involvement in the crime was arguably less than that of the other attackers, he should not receive the increased sentence. The district court could have agreed with Vigil and sentenced him to the presumptive sentence under the guidelines, or perhaps even a downward departure, but the district court was not required to do so. The factors the district court listed are legitimate reasons for an upward departure, and the record indicates these factors were indeed present here. Accordingly, the district court did not abuse its discretion in imposing the upward departure.

Affirmed.