This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Timothy Patrick Cavanaugh,

Filed July 13, 1999
Klaphake, Judge

Hennepin County District Court
File No. 97039001

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Timothy Cavanaugh appeals from his conviction of first-degree assault. Minn. Stat. § 609.221 (1996). He challenges the evidence as insufficient and claims the trial court abused its discretion in imposing a sentence that was an upward durational departure from the presumptive sentence. In his pro se brief, Cavanaugh claims the trial court was biased and erroneously denied his request for a continuance. Because we conclude the evidence was sufficient to support the conviction, the sentence imposed was not an abuse of discretion, the record does not demonstrate trial court bias, and the trial court did not err in declining to grant Cavanaugh a continuance, we affirm.


1. Sufficiency of the Evidence

The standard of review in criminal cases where sufficiency of the evidence is challenged is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Cavanaugh claims that his conviction cannot stand because it is supported only by the uncorroborated testimony of Michael Stuck, his accomplice. See Minn. Stat. § 634.04 (1998) (prohibiting convictions based on uncorroborated accomplice testimony). Stuck's testimony, however, is corroborated by the testimony of the victim, T.T., who positively identified Cavanaugh in a line-up and testified at trial that she was "100 percent positive" that Cavanaugh was one of her assailants. While there were other inconsistencies in T.T.'s testimony that related to various specific acts of her assailants, T.T. did not express any doubt regarding whether Cavanaugh was one of the assailants. See State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984) (jury's function to assess witness credibility and resolve conflicting testimony). Thus, T.T.'s testimony corroborated Stuck's testimony. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (appellate court must assume jury believed evidence supporting conviction and disbelieved contradictory evidence favoring defendant).

Stuck's testimony is further corroborated by circumstantial evidence found in an apartment where Cavanaugh was staying and where T.T.'s beating originated. Traces of T.T.'s blood were found on a golf club and other DNA evidence showed the presence of blood on the carpeting. Although the blood on the carpeting could not be linked directly to T.T. because of its degraded condition, its presence supported Stuck's testimony. See State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990) (corroboration testimony may be circumstantial). Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support Cavanaugh's conviction. See Webb, 440 N.W.2d at 430.

2. Sentencing Departure

Cavanaugh claims that the trial court abused its discretion by imposing a 210-month sentence, a nearly 30 percent upward departure from the 163-month presumptive guidelines sentence. A trial court has broad discretion in imposing a sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). In determining whether to depart durationally, the trial court must consider whether the present offense is more egregious than the typical offense. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). Generally, a court should not impose a greater than double durational departure. Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997).

The trial court found that the assault was more serious than the typical first-degree assault, and the record supports this finding. Long after T.T. was completely incapacitated by the beating, Cavanaugh and Stuck continued to assault her. The beating continued for 15-20 minutes, according to Stuck, and caused T.T.'s blood to be spread from the floor to the walls of the apartment. Stuck admitted hitting T.T. in the car while they transported her to Minnehaha Creek. Cavanaugh also handed Stuck a "Rambo" knife and directed him to kill T.T., which presumably put T.T. in imminent fear of death. Although Stuck denied knifing T.T., she suffered knife wounds to her chin and throat. This conduct demonstrates particular cruelty. See id. at 691 (gratuitous infliction of pain constitutes particular cruelty); State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (durational departure justified by first-degree assault that was more serious than typical case, including disfiguring beating that nearly caused victim's death)), review denied (Minn. Sept. 29, 1987); State v. Anderson, 370 N.W.2d 703, 706-07 (Minn. App. 1985) (durational departure for particular cruelty supported by egregious conduct, including prolonged beating that exceeded typical first-degree assault), review denied (Minn. Sept. 19, 1985).

The trial court also found that the severity of T.T.'s injuries justified the departure. Cavanaugh contends that T.T.'s injuries were not serious enough to merit departure and were merely an element of the offense--great bodily harm. See Minn. Stat. § 609.221 (defining first-degree assault to include infliction of great bodily harm). Contrary to Cavanaugh's claim, Dr. Mark Seaburg testified that T.T.'s injuries were potentially life threatening because of a possible "obstruction of the airway." Cavanaugh argues that T.T.'s injuries were not as serious as the victim's injuries in either Felix or Anderson. In Felix and Anderson, the victims were both severely beaten, but in Felix, the victim suffered partial loss of sight in one eye, and in Anderson, the victim suffered a lacerated liver. See Felix, 410 N.W.2d at 401; Anderson, 370 N.W.2d at 706. We conclude that the severity of T.T.'s injuries, which included memory loss, justify the departure in this case. The trial court did not err in imposing the limited durational departure in sentencing.

3. Pro se Issues

In his pro se brief, Cavanaugh contends the trial court interjected itself into the proceedings, which resulted in an unfair trial, and erred in denying his request for a continuance. These arguments are without merit.

Cavanaugh claims that the trial court was biased because it advised him a week before trial that if the jury found him guilty on the alleged facts, it would consider an upward durational departure in sentencing. Cavanaugh also claims the trial court misled him about his right to testify. Cavanaugh took no action to disqualify the judge, however, and thus waived his right to assert bias. See Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996) (accused's failure to move to disqualify allegedly biased judge resulted in waiver of right to assert bias on appeal), review denied (Minn. Apr. 1, 1996); State v. Larson, 520 N.W.2d 456, 462 (Minn. App. 1994) (accused failed to establish trial court bias even though transcript contained tense and mutually impatient dialogue), review denied (Minn. Oct. 14, 1994).

Further, the evidence at trial does not support Cavanaugh's bias claim. The court told Cavanaugh that it was his decision whether to testify and urged him to follow his counsel's advice on whether to testify. Nothing the court said was inaccurate under the law. See State v. Rosillo, 281 N.W.2d 877, 878-79 (Minn. 1979) (recognizing constitutional and statutory dimensions of accused's right to testify). The court's comment on a possible statutory departure, conditioned on a finding of guilt alone, does not demonstrate court bias. Considered in the context in which it occurred, during consideration of the state's plea offer, the comment was not unreasonable.

Cavanaugh also challenges the trial court's denial of his request for a continuance one week before trial. In December 1997, A. Demetrius Clemons was appointed to represent Cavanaugh after Cavanaugh's first attorney was unable to represent him due to a scheduling conflict. Just prior to the scheduled January 1998 trial date, the trial court granted a continuance to allow Cavanaugh to confer with Clemons. Cavanaugh requested a second continuance on April 27, 1998, claiming that he had had no contact with Clemons, even though he sent Clemons at least five letters from prison that outlined his trial strategy and investigative ideas. The trial court, when presented with this issue on April 27, 1998, declined to grant a second continuance.

The trial proceeded on May 1, 1998 and Clemons, without calling any witnesses, was able to develop Cavanaugh's theory of the case by effectively cross-examining the state's witnesses. Clemons challenged T.T.'s equivocal identification of her assailants and suggested that a third man, Michael Simon, was the primary assailant and that Stuck's testimony was derived from his admitted fear of Michael Simon.

Under these circumstances, we cannot conclude the trial court erred by refusing to grant a second continuance. See State v. Lugo-Diaz, 348 N.W.2d 79, 80 (Minn. 1984). Cavanaugh failed to inform the court of his dissatisfaction with his attorney until just before trial and was unable to explain his delay in requesting a second continuance. Moreover, Cavanaugh failed to show he was prejudiced by the court's failure to grant a continuance. Thus, the trial court did not err in declining to grant a second continuance.

The conviction and sentence are affirmed.