This opinion will be unpublished and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

C2-99-1714

 

 

Steven Patrick Breitkreutz,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed March 7, 2000

Affirmed

Shumaker, Judge

 

Carlton County District Court

File No. K3961067

 

 

 

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Marvin E. Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)

 

 

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

 

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

SHUMAKER, Judge

After being sentenced for convictions of three counts of criminal sexual conduct, appellant Steven Breitkreutz petitioned for postconviction relief. He alleged that his attorney was ineffective and that the trial court improperly imposed multiple sentences for offenses that were part of a single course of conduct. The trial court denied the petition. We affirm.

FACTS

Appellant repeatedly sexually abused R.N., his minor stepson, during the period of November 1994 through August 1996. Describing the times of the abuse, R.N. testified:

Well, the first time he did it, it was just once, and then it became every now and then, and then once a week it became, and it became like almost every day.

 

R. N. also described with particularity several separate instances of abuse. He testified that in the summer of 1994, he and appellant masturbated together in a garage while looking at a pornographic magazine. In approximately August 1996, he masturbated in front of appellant and then he and appellant performed fellatio on each other in a van. R.N. also stated that on other occasions he and appellant had anal sex in R.N.'s bedroom and in a van.

During the trial, appellant urged his attorney to present medical evidence that he had injured his back and was therefore physically incapable of committing the alleged sexual abuse. Appellant also asked his attorney to call character witnesses and to offer into evidence certain audio tapes on which R.N.'s mother allegedly suggests that appellant is innocent. Appellant's attorney refused all requests. He said that presentation of the medical evidence would be absurd and would cause him to lose credibility with the jury. The attorney said that he would not call character witnesses because appellant had previously been convicted of criminal sexual conduct and character evidence would open the door to the admission of the conviction. Finally, the attorney felt that the audio tapes were of such poor quality that they would not help the defense.

The jury convicted appellant of two counts of first-degree and one count of second-degree criminal sexual conduct. The trial court sentenced appellant for all three counts. On appeal, appellant contends that his acts of sexual abuse constituted a single behavioral incident and, therefore, the court abused its discretion in imposing three sentences. Appellant also contends that he received ineffective assistance of counsel and that certain trial misconduct resulted in prejudicial error.

D E C I S I O N

In reviewing a postconviction proceeding, the task of the appellate court is "only to determine whether there is sufficient evidence to sustain the postconviction court's findings." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, the decision of the postconviction court will not be disturbed. Id.

I. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, an appellant must affirmatively show that this 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) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Appellant claims he was denied effective assistance of counsel because his trial attorney (1) did not present evidence of his back injury, (2) did not call character witnesses or witnesses to impeach prosecution testimony, and (3) did not introduce audio tapes in which R.N.'s mother allegedly claims appellant is innocent.

Deciding which "witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel." State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). An attorney also has "discretion to forgo investigation of leads not reasonably likely to produce favorable evidence." Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).

The strategy decisions of appellant's trial counsel were within his discretion. As the trial court noted in its supporting memorandum, trial counsel did not present the medical evidence because he thought it was absurd and would cause him to lose credibility with the jury.

Before trial, appellant's trial counsel had successfully moved for the exclusion of Spreigl evidence. In light of this motion, and the fact that appellant has a prior conviction for criminal sexual conduct, appellant's trial counsel's decision not to call character witnesses was reasonable. Moreover, we note the trial court's finding that:

Many of the potential witnesses listed by [appellant] would not have been allowed to testify at trial even if called since they had no direct knowledge about the allegations of the current offense and since the past acts [of] perjury were no longer contested or at issue.

 

Appellant's trial counsel did not submit the audio tapes because of their poor quality.

None of the alleged errors demonstrates that there is a reasonable probability that the outcome of trial would have been different but for the errors. Therefore, we affirm the postconviction court's decision to deny appellant's claim of ineffective assistance of counsel.

II. Multiple Convictions

Appellant argues that his convictions arose from a single behavioral incident of conduct, namely "sexual abuse between November 1994 and August 1996." This court reviews the trial court's conclusion that the conduct underlying the convictions was not a single behavioral incident to determine whether that decision is supported by the record. State v. Nordby, 448 N.W.2d 878, 880 (Minn. App. 1989). The trial court's determination, however, will not be reversed on appeal unless it is clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Among the factors to consider are "the singleness of purpose of the defendant and the unity of time and of place of the behavior." State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). In assessing the unity of time and place, we determine whether the offenses occurred at substantially the same time and place and arose from a continuous and uninterrupted course of conduct. State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989).

Here the evidence reasonably supports the conclusion that the incidents of abuse were separate behavioral incidents and were not part of a continuous course of conduct. The first instance of abuse occurred in 1994 and involved R.N. masturbating. The second instance of abuse occurred in 1996 in a van where appellant and R.N. performed fellatio on each other. The third instance of abuse had no time frame but was separate from the other two instances and consisted of two related acts of anal sex in R.N.'s bedroom and in a van. These are three distinct incidents separated by time, place, and type of sexual conduct. These differences among the incidents support the trial court's separate sentences of appellant for three independent offenses.

III. Pro Se Claims

Appellant's pro se brief challenges his conviction on several grounds. Appellant alleges prosecutorial, judicial, and juror misconduct. We have examined the record and hold that there was no misconduct by any party during appellant's trial. Therefore, we find that all of appellant's claims are without legal merit.

Respondent has filed two motions to strike portions of appellant's pro se brief and pro se reply brief. Based upon our affirmance of the postconviction court's decision on all issues, respondent's motions to strike have become moot.

Affirmed.