State of Minnesota, Respondent, vs. David Lee Eubanks, Appellant. C3-98-1890, Court of Appeals Unpublished, July 20, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1890

State of Minnesota,

Respondent,

vs.

David Lee Eubanks,

Appellant.

Filed July 20, 1999

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 98032264

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

Amy Klobuchar, Hennepin County Attorney, Lucinda E. Jesson, Deputy County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (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 Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

After a jury trial in which appellant was convicted of kidnapping and assault, appellant challenges the district court's decision to upwardly depart from the sentencing guidelines and to impose consecutive sentences. We affirm.

D E C I S I O N

The presumptive sentence for both kidnapping and assault for a person with appellant's criminal history score is 27 months. The district court sentenced appellant to consecutive terms of 81 and 63 months for kidnapping and assault, respectively.

The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. Rairdon v. State, 557 N.W.2d 318, 226 (Minn. 1996).

Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.

State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). Severe aggravating circumstances, however, may justify a sentence greater than double the presumptive sentence. Id. There is no clear line separating circumstances justifying a double departure and the "severe aggravating circumstances" justifying a greater than double departure. State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982). The Minnesota Supreme Court has stated that determining whether the circumstances justify a greater than double departure ultimately must be based upon the judiciary's "collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." Id. at 146-47.

Appellant first contends that his 81-month sentence for kidnapping was not justified by severe aggravating circumstances. We disagree. In addition to detaining his victim for four or five hours, appellant told his victim that: (1) he was going to torture her all night; (2) he was going to kill her; (3) he was going to slit her throat; and (4) he was going to cut off her clitoris. Moreover, appellant, to some degree, acted on all of these threats. We conclude the district court did not abuse its discretion by finding that severe aggravating circumstances justify appellant's 81-month sentence for kidnapping.

Appellant contends the district court abused its discretion by upwardly departing from the sentencing guidelines for the assault conviction. We disagree. Appellant's numerous assaults included: (1) beating his victim on the forehead with the side of a butcher knife; (2) beating his victim on the knees with a butcher knife; (3) cutting into the side of his victim's stomach and leg; (4) carving a "D" on his victim's forehead; (5) twice choking his victim to the point of unconsciousness; and (6) punching his victim in the mouth so hard that he smashed her teeth in. We conclude that these actions also constitute severe aggravating circumstances justifying the 63-month sentence for assault.

Appellant argues that he was double punished for the conduct underlying his assault and kidnapping convictions. See State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996) (modifying sentence for first-degree burglary conviction to presumptive sentence). We disagree. As previously discussed, appellant's conduct justified an upward departure in sentencing. Moreover, appellant was not otherwise punished for making terroristic threats, and any one of the numerous assaults committed by appellant could have supported his assault conviction. We conclude that the district court acted within its discretion by upwardly departing from the sentencing guidelines and did not punish appellant twice for the same conduct.

Appellant contends the district court abused its discretion by imposing consecutive sentences for the kidnapping and assault convictions. We disagree. The decision to impose a consecutive sentence is within the district court's discretion. State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). It is a departure from the guidelines for a court to impose a consecutive sentence where the court has given an upward durational departure on any of the current sentences. Minn. Sent. Guidelines cmt. II.F.04. Generally, in order to depart from the sentencing guidelines there must be "substantial and compelling aggravating circumstances." State v. Halvorson, 506 N.W.2d 331, 338 (Minn. App. 1993). We conclude that the district court did not abuse its discretion by determining that appellant's actions constituted substantial and compelling aggravating circumstances, justifying the imposition of consecutive sentences.

II.

Appellant makes two arguments in his pro se brief. First, appellant contends that the outcome of his trial may have been affected by his attorney's alleged failure to obtain and introduce evidence that appellant alleges would have impeached the credibility of a witness against him. We reject appellant's argument because: (1) it is based upon conjecture; and (2) the witness's testimony was corroborated by the testimony of a medical doctor and by photographs admitted at trial.

Second, appellant argues that he was prejudiced by a conversation that took place at the bench among the judge, the prosecuting attorney, and the defense attorney. Because appellant has failed to detail the substance of the conversation or cite to the record, we cannot conclude appellant was prejudiced by the alleged conversation.

Affirmed.