This opinion will be unpublished and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
State of Minnesota,
Filed February 4, 2003
Hennepin County District Court
File No. 00102445
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Forsberg, Judge.
In this appeal from his sentence for second-degree assault, appellant Mithsvane Vonsouvane argues that the court’s upward durational departure was an abuse of discretion. Because the court properly based its upward departure on substantial and compelling aggravating factors, we affirm.
Courts may only depart from the sentencing guidelines if aggravating or mitigating factors are present. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). In determining whether to issue a sentencing departure, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).
If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a “strong feeling” that the sentence is disproportional to the offense.
State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted).
Appellant contends that the district court impermissibly imposed an upward durational departure based on revenge, vulnerability, particular cruelty, zone of privacy, presence of children, failure to aid, and dangerousness. He argues that these factors were not valid or were not supported by the record.
The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors that may support upward departure, including (1) particular vulnerability of the victim due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender and (2) particularly cruel treatment of the victim for which the offender should be held responsible. Minn. Sent. Guidelines II.D.2.b.(1), (2).
The sentencing court noted various substantial and compelling aggravating factors and concluded that the particularly brutal assault was a ground for departure. The factors included revenge, unprovoked attack from behind, use of a brutal and fierce weapon, multiple strikes, and the size of the laceration. Upward departures have been affirmed where “the crime was one of vengeance, revenge, and utter disregard for the safety of others.” State v. Lewis, 385 N.W.2d 352, 356-57 (Minn. App. 1986); see also State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (affirming departure where more people put in fear than in normal case); State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984) (affirming departure where conduct motivated by revenge, caused damage directly to owners of property and indirectly to many more people). Even a single aggravating factor may support a double durational departure. State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985).
Here, the victim, Latsamy Sengsourichanh, and his girlfriend, Toon Khamnomh, were attending a party in the front yard of Toon’s stepfather and mother’s home. Toon was fearful when she saw appellant and his companion at the party, and she asked appellant’s companion to leave. Latsamy concluded his conversation with appellant’s companion, and as he turned to leave, appellant appeared, said something, and then struck Latsamy from behind in the head with a machete. The machete belonged to Toon’s stepfather and was being used at the party for chopping wood and bones. When Latsamy got up, appellant and his companion each struck him again. Toon’s stepfather arrived to assist Latsamy and observed appellant still holding the machete in a threatening manner—threatening not only Latsamy but also Toon’s stepfather. The strike to Latsamy’s head caused profuse bleeding and serious injury, and the second strike (apparently using the blunt side of the machete) left a mark on Latsamy’s shoulder. These facts are indicative of a brutal, rather than an ordinary, assault. Cf. State v. Hysell, 449 N.W.2d 741, 745 (Minn. App. 1990) (concluding presumptive sentence appropriate for second-degree assault in which no other people were present and compressed air pistol left red mark on 12-year-old’s thigh), review denied (Minn. Mar. 15, 1990).
The second ground for departure noted by the district court was the location of the assault within the curtilage and privacy of the home. Invasion of a victim’s zone of privacy is an aggravating factor that can justify an upward durational departure. State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985). The record reflects and Latsamy testified that he stayed at Toon’s home often, and Toon’s stepfather considered it Latsamy’s home. Whether or not this was his only “home,” the record establishes that he had the same comfort level and sense of security at this location that one would expect in a traditional home.
The third factor noted by the district court was that after the assault, appellant walked away, failed to render aid, and left the victim for dead. Appellant contends that Latsamy was not particularly vulnerable under the sentencing guidelines, so he did not owe him a duty to render aid. The sentencing guidelines expressly allow departure for victims with existing vulnerabilities, but they do not exclude as a ground for departure an offender’s continued strikes and threats after knocking the victim down. See Minn. Sent. Guidelines II.D.2.b.(1). Toon’s stepfather, one of the few individuals who rendered Latsamy aid, testified that appellant made him fearful for his own safety. Under these circumstances, appellant deprived Latsamy of aid for the bleeding caused by the machete strike and exhibited cruelty toward the victim. Just as appellant acknowledged no responsibility for his actions at the time of the assault, he similarly shifted the blame to others at sentencing, saying he “just happened to be with the wrong side of the two parties.” These facts also indicate something more serious than a typical assault in the second degree. See State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998) (affirming upward departure for second-degree murder committed from behind with hatchet where defendant attempted to shift blame).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.