This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-399

State of Minnesota,

Respondent,

vs.

Kenneth Ray Carpenter,

Appellant.

Filed October 22, 1996

Affirmed

Short, Judge

Hennepin County District Court

File No. 95020504

Hubert Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

G. John Veith, Kurt B. Glaser & Associates, P.A., 915 Grain Exchange Bldg., Minneapolis, MN 55415 (for appellant)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

SHORT, Judge

A jury convicted Kenneth Ray Carpenter of first-degree assault, second-degree assault, and two counts of aggravated robbery in violation of Minn. Stat. SSSS 609.221, 609.222, subd. 1, and 609.245 (1994). The trial court sentenced Carpenter concurrently to 180 months in prison for first-degree assault, which represented a double departure from the sentencing guidelines, and to the presumptive sentence of 68 months for aggravated robbery. On appeal, Carpenter argues the trial court abused its discretion in imposing an upward durational departure on the first-degree assault charge. We affirm.

D E C I S I O N

Absent a clear abuse of discretion, we will not reverse a trial court's sentencing decision. State v. Garcia, 302 N.W.2d 643, 645 (Minn. 1981). A trial court may depart from the presumptive sentence set forth in the Minnesota Sentencing Guidelines when substantial and compelling circumstances are present. Id. at 647 (quoting Minn. Sent. Guidelines II.D.).

The issue before a trial court in deciding whether to depart durationally is whether a defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989) (quoting State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)). Aggravating circumstances that may support a departure include: the particular cruelty of the offense; the vulnerability of the victim; and any permanent physical or psychological damage caused to the victim. Minn. Sent. Guidelines II.D.2.b.(1), (2); see, e.g., State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (victim vulnerability); State v. Douglas, 501 N.W.2d 694, 698 (Minn. App. 1993) (particular cruelty), review denied (Minn. Aug. 16, 1993); State v. Brown, 455 N.W.2d 65, 72 (Minn. App. 1990) (permanent injury), review denied (Minn. July 6, 1990).

Carpenter argues the trial court abused its discretion by imposing a 180-month sentence when Carpenter was unaware of the victim's vulnerability, not responsible for the permanent injury to the victim's eye, and not more culpable than others sentenced more leniently. We disagree. The record demonstrates: (1) Carpenter and four friends drove up to the twenty-year-old victim at a bus stop and began shouting at him; (2) the victim was deaf since birth and, therefore, unable to understand Carpenter and his friends; (3) the victim responded with sign language and limited speech; (4) Carpenter and one friend left their car and began to chase the victim; (5) a bus driver observed the incident and opened the bus door long enough to allow the victim alone to board; (6) Carpenter and his friends pursued the victim in their car; (7) at a later bus stop, Carpenter and his four friends got on the bus and immediately began to punch and kick the victim; (8) the victim's hearing aid was dislodged and fell to the bus floor; (9) the victim was vulnerable due to his communication disability and he was outnumbered and trapped on a bus; (10) during the attack, the victim's face was slashed with a broken 22-ounce beer bottle; (11) Carpenter was holding a beer bottle before the victim's face was slashed and had a deep cut on the palm of his hand at the time of his arrest; and (12) as a result of the attack, the victim lost the vision in his right eye, eventually underwent a second surgery to remove that eye, suffered severe thyroid damage, and had to undergo an operation to remove his thyroid gland.

These facts amply support the trial court's conclusion that Carpenter's conduct was "senseless, unprovoked, and brutal." The trial court did not abuse its discretion by imposing an upward sentencing departure based on the victim's vulnerability, his permanent physical damage, and the cruelty of the offense. While a defendant's exercise of his constitutional rights cannot be grounds for a sentencing departure, the trial court stated Carpenter's decision to go to trial had no effect on the sentence, except by making more vivid the offense and the victim's injuries. Minn. Sent. Guidelines II.D.1.e; see State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983) (holding departure not invalid because defendant, by going to trial, allowed trial court to hear testimony, see victim, learn facts of offense in more vivid, concrete detail).

Carpenter also argues the comparatively lenient sentences given his friends should be considered in assessing the fairness and proportionality of his sentence. However, differences in sentencing may result not from a defendant being too harshly sentenced, but from a codefendant being treated too leniently. State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983). The sentences given to Carpenter's accomplices, either in exchange for their truthful testimony or after Carpenter's own sentencing, do not establish that Carpenter, whose conduct was more culpable, received a disproportionately harsh sentence. We conclude the trial court did not abuse its discretion in departing upwards from the 86-month presumptive sentence.

Affirmed.