This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Jason Robert Oden,
Filed May 30, 2000
Rock County District Court
File No. K598179
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald R. Klosterbuer, Rock County Attorney, Rock County Courthouse, 204 East Brown, Luverne, MN 56156 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the sufficiency of the evidence supporting his conviction for felony and misdemeanor criminal harassment and misdemeanor placing obscene or harassing phone calls. Because the evidence supports the conviction and is inconsistent with any rational hypothesis other than guilt, we affirm.
During the summer of 1998 several women received harassing telephone calls from an unknown caller. The calls were similar in nature. Most of the calls were made in the late evening or early morning and included hang-ups, heavy breathing, and vulgar and sexually explicit comments. The police traced seven calls to appellant’s home telephone number.
After appellant became a suspect, the state subpoenaed appellant’s cellular phone records. Appellant’s cellular calling records showed that his phone had been used to call ten of the victims. Nine of the victims were appellant’s acquaintances. One of the victims, appellant’s coworker, had an unlisted telephone number that she only gave to family, friends, and her employer.
When the police searched appellant’s house they found his cellular phone in a desk drawer, a service contract for the phone signed by appellant, and his cellular phone payment stubs on the dining-room table. Although appellant had over 850 calls on his August and September bills, he paid his bills in full and neither reported his cellular phone stolen, nor reported any fraudulent use. The police confiscated appellant’s cellular phone and the harassing telephone calls stopped.
The state charged appellant with two counts of felony criminal harassment in violation of Minn. Stat. § 609.749, subds. 2(4) and 3(5) (1996), eight counts of gross misdemeanor criminal harassment in violation of Minn. Stat. § 609.749, subd. 2(4) (1996), and eleven counts of misdemeanor placing obscene or harassing telephone calls in violation of Minn. Stat. § 609.79, subd. 1(1)(a) (1996). A jury found appellant guilty as charged. The district court stayed imposition of the felony sentence and placed appellant on probation for five years. The court also sentenced appellant to one year in jail for the misdemeanor criminal harassment convictions. The court did not enter a conviction on the counts charging appellant with placing harassing telephone calls.
When reviewing a sufficiency-of-evidence appeal, a reviewing court must determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A jury is in the best position to evaluate the credibility of a witness. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).
After reviewing the evidence, the jury determined that appellant made the obscene and harassing phone calls. The jury’s determination was based entirely on circumstantial evidence. Circumstantial evidence warrants stricter scrutiny, but is entitled to the same weight as other evidence. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). Circumstantial evidence must be consistent with the hypothesis of appellant’s guilt and inconsistent with any other hypothesis other than guilt. State v. Thomas, 590 N.W.2d 755, 758 (Minn. 1999).
Appellant hypothesizes that someone else made the phone calls. Although none of the victims could identify the caller’s voice, appellant offers little evidence to suggest that the caller was someone other than himself. When the calls were made, appellant lived in a house with three male roommates. Appellant claims that everyone in the house, including party guests, had access to his unlocked room and could have used his cellular phone to make the telephone calls.
The following evidence makes appellant’s theory of innocence implausible: (1) the phone tap traced seven calls to appellant’s home phone number; (2) appellant’s cellular phone was used to make the other telephone calls; (3) appellant paid for the cellular phone calls made to the ten women; (4) appellant did not report his cellular phone stolen or report any fraudulent use of his telephone; (5) appellant knew nine of the victims; (6) appellant had access to the unlisted telephone number of one of the victims; and (7) appellant was not working when the any of the phone calls were made.
The evidence supports appellant’s conviction and is inconsistent with any other rational hypothesis. The district court did not err in convicting appellant of felony and misdemeanor criminal harassment.
In addition, appellant also alleges, by pro se supplemental brief, ineffective assistance of counsel. Appellant disagrees with his counsel’s questioning of witnesses and asserts that his counsel did not adequately research his case. In order to prevail on his claim of ineffective assistance of counsel appellant must show that his attorney’s representation fell below an objective standard of reasonableness and that but for his attorney’s representation the outcome of the trial would have been different. SeeSutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998). Appellant asks us to consider matters of trial strategy, which this court does not review for competency. See State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). Appellant has not met this burden of showing that he was deprived of effective assistance of counsel.