This opinion will be unpublished and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
State of Minnesota,
Emmanuel Gordon Anim,
Filed February 8, 2000
Hennepin County District Court
File No. 98115605
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Emmanuel Gordon Anim challenges his conviction for controlled substance offenses, arguing that defense counsel rendered ineffective assistance by failing to argue entrapment. We affirm.
According to the complaint, on two occasions Anim sold crack cocaine to an undercover BCA agent. On July 13, 1998, Anim sold the agent 1.5 grams of crack cocaine for $240. On July 15, 1998, Anim sold the same agent 3.3 grams of crack cocaine for $490. Both sales occurred at a parking lot in downtown Minneapolis and were audiotaped and videotaped by BCA surveillance. The complaint charged Anim with second- and third-degree controlled substance crimes in violation of Minn. Stat. §§ 152.022, 152.023 (1996).
Anim appeared with defense counsel at a February 1999 hearing and agreed to a court trial, stipulating to the evidence contained in the prosecution file. In response to questioning by the court, Anim stated that he understood and waived his right to a jury trial, agreed to the state's evidence, declined to call any witnesses, and stated that he was satisfied with defense counsel's representation. At a March 1999 hearing, the trial court found Anim guilty on both counts. In a March 20 order, the trial court specifically found that the BCA provided Anim with an opportunity to commit the crimes but did not induce their commission, concluding that Anim was not entrapped.
D E C I S I O N
To succeed on an ineffective assistance of counsel claim, Anim must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citation and quotations omitted). In determining whether counsel's representation fell below the objective standard, we must first decide if the representation was "reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). There is a strong presumption that a counsel's performance falls within the range of reasonableness. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Anim argues that his trial counsel was ineffective because he did not act in the role of an advocate at Anim's trial. Specifically, Anim complains that his counsel did not attempt to satisfy the defense burden of establishing entrapment. A review of the transcript reveals that Anim waived his rights to a jury trial, to confront witnesses, and to testify. At no point on the record did Anim or his counsel assert any defense at the hearing. Instead, Anim's counsel explained that there were "mitigating factors" for the court to consider at sentencing.
[w]hat evidence to present to the jury, including which defenses to raise at trial and what witnesses to call, represent an attorney's decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence.
State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Accordingly, defense counsel's conduct regarding a possible entrapment defense falls squarely within the realm of trial tactics. Anim acknowledges that his counsel was not obligated to assert the defense, but argues that once asserted, it was incompetence to present no argument regarding entrapment. The record, however, does not establish that counsel had in fact asserted an entrapment defense.
Entrapment occurs when the government induces a person to commit an offense that the person otherwise had no intention of committing. State v. Johnson, 511 N.W.2d 753, 754-55 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). "A defendant must raise an entrapment defense by establishing by a fair preponderance of the evidence that a government actor initiated the criminal idea." State v. Oanes, 543 N.W.2d 658, 664 (Minn. App. 1996). Where an undercover officer "merely [provides a] defendant with an opportunity to commit the crimes" there is no entrapment. See State v. Vaughn, 361 N.W. 2d 54, 57 (Minn. 1985). In this case, the trial court specifically found: "The BCA provided defendant with an opportunity to commit these crimes, but did not induce the commission of the crimes." Nothing in the record suggests that this finding was clearly erroneous. Indeed, the surveillance tapes reveal that Anim appeared eager to sell the crack cocaine.
The obvious decision is this case was to demonstrate Anim's good intentions by admitting guilt, focusing instead on mitigating factors affecting the sentence. Because such decisions fall within the realm of trial tactics and an entrapment defense is unsupported by the record, counsel's failure to argue for entrapment does not fall below the objective standard of reasonableness. We have reviewed the pro se brief and find no new arguments raised.