This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-244

State of Minnesota,

Respondent,

vs.

Virgil Frank Calamese,

Appellant.

Filed October 8, 1996

Affirmed as modified.

Randall, Judge

Ramsey County District Court

File No. KO-95-1987

Hubert H. Humphrey III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, Minnesota 55102. (for Respondent).

John M. Stuart, Minnesota State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave., S.E., Suite 600, Minneapolis, MN 55414 (for Appellant).

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Thoreen, Judge[*].

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

RANDALL, Judge

Appellant argues that the prosecutor engaged in misconduct during closing argument and the trial court erred in calculating the presumptive length of his sentences. We affirm as modified.

FACTS

Following a jury trial in Ramsey County District Court, appellant Virgil Frank Calamese was convicted of one count of first-degree kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3), and one count of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1., for an incident occurring on January 26, 1995, near the intersection of University Avenue and Grotto in St. Paul. Alice Dochniak and her two children were assaulted, threatened, and held against her their will by appellant. The trial court sentenced appellant to concurrent terms of imprisonment of 68 and 21 months respectively. These sentences were to also run consecutively to a previously imposed but stayed sentence of 30 months for third-degree assault.

D E C I S I O N

I.

Appellant argues the prosecutor engaged in misconduct during final argument and that he is entitled to a new trial. Appellant contends the prosecutor unfairly penalized him for exercising his right to confront his accusers in person by attending the trial when she stated:

And you heard the defendant, you heard the defendant, and you saw him. He was smooth. He had it all figured out, didn't he? He got to sit here and listen to all the testimony, and he's a smart guy and he figured out what it was that he was going to have to admit to have any credibility whatsoever and what he could safely deny.

Initially, we note that defense counsel failed to object to these comments nor did he seek any curative instruction from the trial court. Defense counsel has a duty to object promptly and to ask for a curative instruction when a prosecutor makes an improper statement during closing arguments. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). The general rule is that by failing to object, a defendant is deemed to have waived his right to raise the issue on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The failure to object implies the defense found nothing improper in the argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). Thus, we conclude appellant has forfeited this issue on appeal.

However, even if the issue of prosecutorial misconduct were properly preserved on appeal, we conclude that the comments made by the prosecutor were not improper to the point of being inflammatory, nor did they appear to create substantial prejudice to appellant. Although appellant contends that no cases exist in this jurisdiction regarding the propriety of a prosecutor commenting on the presence of a defendant during the testimony of the state's witnesses, this court's decision in State v. Grilli, 369 N.W.2d 35 (Minn. App. 1985), review denied (Minn. Aug. 30, 1985), is on point. In Grilli, the prosecutor began his cross-examination of defendant by asking defendant if he had heard the testimony of all the other witnesses and whether he had heard their version of the events in question. Id. at 37. On appeal, defendant argued that his Sixth Amendment right to be present at trial was being used against him and the prosecutor engaged in misconduct during closing argument when the prosecutor argued that defendant's version was an attempt to fashion a defense to fit the evidence presented by the state. Id. This court rejected defendant's argument and held that the prosecutor's cross-examination and closing argument were not improper and that the prosecutor was "free to argue and attack [defendant's] credibility." Id.

Here, after reviewing the entire closing argument, it appears that the selected comment has been taken out of context. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (prosecutorial misconduct must be viewed in light of the entire record). The prosecutor was simply attempting to argue to the jury that the only time appellant would admit to anything was during instances where other people were present. See State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (prosecutor has the right to argue that the state's witnesses are worthy of credibility whereas defendant is not). The prosecutor recounted the evidence presented at trial and argued that a pattern emerged: appellant would only admit his behavior when others were present, but deny one-on-one episodes or conversations. Based on this pattern the prosecutor simply compared the credibility of the witnesses. We find no error.

II.

Lastly, appellant argues the trial court erred in calculating the presumptive length of his sentences. Here, the trial court sentenced appellant to a term of 68 months imprisonment for the first-degree kidnapping conviction. This was a double durational departure on the presumptive sentence of 34 months. The trial court also imposed a presumptive sentence of 21 months for the terroristic threats conviction. Both sentences were computed based on a criminal history score of 3 and were to be served concurrently. In addition, the trial court revoked appellant's probation of a previous conviction for third-degree assault, sentencing appellant to a 30-month term of imprisonment. This sentence was to be served consecutively.

Appellant argues, and respondent concedes, that when consecutive sentencing is imposed, the presumptive sentence must be computed using a criminal history score of 0. See Minn. Sent. Guidelines II.F; State v. Elkins, 346 N.W.2d 116, 120 (Minn. 1984). Had the trial court computed appellant's sentence using a criminal history score of 0, it would have resulted in a presumptive sentence of 21 months for the kidnapping conviction and a year and a day for the terroristic threats conviction. Appellant does not contest the double durational departure imposed by the trial court or the consecutive sentencing, but rather asks that his sentence be reduced to reflect the proper presumptive sentence (a 26-month reduction) or that the matter be remanded for re-sentencing.

Here, the trial court cited four reasons for its decision to impose a double durational departure from the presumptive sentence. The trial court found that (1) the offense occurred in the presence of two minor children, (2) Dochniak was rendered particularly vulnerable because the presence of the children afforded her no opportunity to escape, (3) appellant violated an existing order for protection that prohibited any contact with Dochniak or the children, and (4) Dochniak was injured during the commission of the crimes in question, and appellant had a prior felony conviction in which the victim was injured. These are proper bases to justify an upward durational departure. See State v. Winchell, 363 N.W.2d 747, 750-51 (Minn. 1985) (commission of crime in front of child defendant knew was present is a particularly outrageous act); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) (presence of child contributes to the vulnerability of the parent victim), review denied (Minn. Oct. 13, 1989); State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991) ("Violation of a restraining order is a valid reason for an upward departure."); Minn. Sent. Guidelines II.D.2.b.(3) (current conviction is for an offense in which the victim is injured and there is a prior felony conviction for an offense in which the victim was injured).

If we were to affirm the trial court's sentence of 68 months, as respondent argues, it would result in a greater than double durational departure. Respondent, although conceding the error in calculation, argues that the 68-month sentence should be affirmed even though it would mean a greater than double durational departure. Respondent argues the record "could" support a greater than double durational departure. We do not address what the trial court could have done. From the sentencing transcript, it is clear the trial court's intention was to impose a double durational departure from the presumptive sentence, not a specific 68-month term of imprisonment as respondent claims. We affirm the trial court's decision to impose a double durational departure, but we reduce appellant's sentence from 68 months to 42 months to reflect the proper underlying presumptive sentence of 21 months for kidnapping, which respondent concedes is correct.

III.

Appellant's pro se argument is without merit and will not be addressed.

Affirmed as modified.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.