This opinion will be unpublished and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

C0-96-1972

State of Minnesota,

Respondent,

vs.

David Dean Johnson,

Appellant.

Filed July 22, 1997

Affirmed

Schultz, Judge

[*]

St. Louis County District Court

File No. K595600364

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, Minnesota 55802 (for Respondent)

John M. Stuart, State Public Defender, Patricia P. Rettler, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.

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

SCHULTZ, Judge

This appeal is from a sentence imposed for first-degree misdemeanor manslaughter. See Minn. Stat. § 609.20(2) (1996). Appellant David Johnson was sentenced to 117.6 months, a 20% upward departure from the presumptive sentence of 98 months. We affirm.

FACTS

Johnson was charged with second-degree felony murder in the beating death of Jerome Buckanaga, who was discovered unconscious outside a Duluth apartment and later died. Johnson and Buckanaga had fought at a party in the apartment the night before. The fight was witnessed by two people, who each testified that Buckanaga, who needed a cane to walk, had fallen when Johnson hit him and had struck his head against a wall. One witness testified that Johnson then straddled Buckanaga on the floor, punching him repeatedly in the face.

The trial court instructed the jury on the lesser-included offense of first-degree misdemeanor manslaughter. The jury returned a guilty verdict on that count, while acquitting Johnson of second-degree felony murder. The trial court sentenced Johnson to 117.6 months in prison, a 20% upward departure from the presumptive sentence of 98 months. To support the departure, the court cited Buckanaga's particular vulnerability due to his disability and Johnson's particular cruelty.

D E C I S I O N

If substantial aggravating or mitigating factors are present, the trial court has broad discretion to depart in sentencing. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Absent a clear abuse of discretion, this court will not interfere with a decision to depart. State v. Casady, 392 N.W.2d 629, 634 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986).

A trial court in sentencing may depart based on the particular vulnerability of the victim or any particular cruelty exhibited in the offense. Minn. Sent. Guidelines II.D.2.(b)(1), (2). The evidence amply supports the trial court's finding that Buckanaga, who needed a cane to walk, had an "open and obvious" disability that made him particularly vulnerable. See generally State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). Johnson not only could see Buckanaga's disability, but also could gauge its severity while fighting Buckanaga, and the evidence indicates he continued punching Buckanaga when he was on the floor and, at least partly because of his disability, unable to get up.

The trial court found Johnson's refusal to help Buckanaga, and the later removal of the victim to the parking lot outside, to be particularly cruel. The failure to seek medical attention for a victim may sometimes constitute an aggravating circumstance. See, e.g., State v. Pearson, 479 N.W.2d 401, 404 n.5 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). In this case, the seriousness of the injuries to Buckanaga may not have been apparent, and there may have been a collective decision to remove Buckanaga from the apartment. But the trial court at the least could consider Johnson's comment that he was not "going to help that cripple" as reflecting particular cruelty, as well as Johnson's awareness of Buckanaga's disability.

The record shows that the trial court considered the lack of any evidence on who started the fight, and that the court was careful not to sentence Johnson in a way that would negate the jury's acquittal on second-degree felony murder. The trial court was not required to find, based on the incomplete evidence before it, most of it negating the claim of self-defense, that Buckanaga was the aggressor. See State v. McKissic, 415 N.W.2d 341, 345 (Minn. App. 1987) (no abuse of discretion in refusing to depart where claim of self-defense was unclear). The trial court carefully considered the alleged mitigating factors and either took them into account or found them without support in the record. The trial court did not clearly abuse its discretion in imposing the 20% upward departure.

Affirmed.

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