This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-98-612

State of Minnesota,
Respondent,

vs.

Jay Edward Smith,
Appellant.

Filed September 8, 1998
Affirmed
Kalitowski, Judge

St. Louis County District Court
File No. K197600687

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

Alan Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant, who pleaded guilty to the charge of attempted second-degree intentional murder, argues that the district court abused its discretion by sentencing him to the statutory maximum of 240 months of imprisonment instead of the presumptive sentence of 153 months. We affirm.

D E C I S I O N

An appellate court will not reverse a departure from sentencing guidelines absent a clear abuse of the court's discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). If reasons for the departure are stated on the record and the reasons justify the departure, the departure will be allowed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

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).

The district court cited three reasons supporting an upward departure from the sentencing guidelines. These reasons, which were stated on the record during the sentencing hearing and included in a departure report, were: (1) the vulnerability of the victim at the time of the attack; (2) the brutality of the attack, which the court found to constitute particular cruelty; and (3) the severity of the victim's injuries.

The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors that may be used as reasons for an upward departure. Included in this list are:

(1) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.

(2) The victim was treated with particular cruelty for which the individual offender should be held responsible.

Minn. Sent. Guidelines II.D.2 (b)(1)-(2).

Whether cruelty is sufficient to justify a departure is a matter of degree. See Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). Generally, a district court must decide whether the defendant's conduct was significantly more or less serious than that typically involved in an attempted murder. Id. See State v. Kisch, 346 N.W.2d 130, 132-33 (Minn. 1984) (finding that defendant's conduct was more serious than the typical felony murder where aggressors administered four blows to the skull with a board, causing the victim's skull literally to "explode").

We conclude the district court did not err in determining that the way the victim was stomped to death was sufficiently more cruel than the typical attempted murder. The record indicates: (1) the victim was beaten while on the ground and immobile; (2) the victim was kicked in the head and stomped so many times that appellant's shoes left imprints on the victim's body; and (3) a number of witnesses claimed they pleaded with appellant to stop the beating, but appellant continued.

The district court also found the victim to be particularly vulnerable due to reduced physical capacity. The victim was lying motionless on the ground as a result of appellant's blows yet appellant continued to stomp on the victim's head and upper body. We conclude that under these facts, the district court did not abuse its discretion when it found this victim to be vulnerable.

Appellant contends the district court erred by ignoring the mitigating factor that the victim, not appellant, was the aggressor. We disagree. It is unclear from the record, and appellant has failed to prove, that the victim was the initial aggressor. Further, even if the victim was the initial aggressor, the evidence in the record supports the district court's decision to order an upward durational departure from the presumptive guidelines.

Affirmed.