This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
State of Minnesota,
Douglas Andrew Anderson,
Hennepin County District Court
File No. 99008843
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Steven M. Tallen, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Appellant challenges the sufficiency of the evidence supporting his assault conviction. In addition, appellant, by pro se supplemental brief, alleges ineffective assistance of counsel and challenges certain evidentiary rulings. We affirm.
Appellant Douglas Anderson and R.M. met in April 1997, while in alcohol treatment. In July 1998, appellant and R.M. moved into Extended Stay America, a long-term residence facility. On July 5, 1998, the police received a call from R.M.’s sister that there was a domestic assault taking place at Extended Stay America. Detective Stephen Durette arrived at the hotel and heard a women call for help from inside the hotel room. R.M. told the detective something to the effect of “he beat me up.” The detective noticed that R.M. appeared to have been drinking and that she was disheveled and frantic. He saw that she had bruises on her arms and a cut on her left shin. The bruises appeared to be recent. The cut was bleeding slightly, was not scabbed over, and appeared to be a “tear” in the skin. Durette testified that appellant appeared “quite intoxicated.” Appellant’s speech was slurred, he smelled of alcohol, he was unresponsive to questions, he used profanity, he assumed a “combative-type stance,” he appeared to be “quite agitated and belligerent,” and he did not cooperate with the officers’ requests.
R.M. and appellant disagree about the exact events of that weekend. R.M. testified that on the evening of July 4, 1998, she and appellant drank whiskey and watched television. The next morning, while she was talking on the telephone with her father, appellant struck her on the buttocks several times. R.M. has “no idea” why appellant hit her and claims that they were not arguing. She also testified that appellant grabbed her arms, “socked” her in the chest, and kicked her in the leg. In addition, appellant shoved her into the tub when she tried to hide in the bathroom. She threatened to call police but appellant told her that he would cut off her fingers if she called the police. R.M. testified that she waited for appellant to go into the bathroom and then called the police; there is no other evidence in the record that R.M. called the police.
In addition to these facts, R.M. admitted that her memory “isn’t always the greatest,” that she bruises easily, and that she may have forgotten to tell the police some details of the assault. She does not recall telling the officer that she was hit on the buttocks or chest or that she was thrown into the tub.
Appellant testified to a different version of events. He explained that R.M. received the bruises on her arms when he pulled her out of the street and protected her from being hit by a car the day before. Appellant stated that the two of them had been drinking all day and all night and that they had been arguing over her drinking and driving. He also testified that he found R.M. passed out in the shower later that day. Appellant knew that R.M.’s father was upset that they were drinking and told her father that “for all I care [R.M.] can go back to him.” This apparently made R.M. upset and she said that she would “fix” him. After this conversation, appellant sat down at the table and the police arrived. Appellant admits he was intoxicated and that he used profanity with the police officers, but denies hitting/striking R.M. in the chest, grabbing her by the arms, shoving her into the bathtub, kicking her in the leg, or threatening to cut off her fingers.
Appellant was charged with one count of misdemeanor domestic assault under Minn. Stat. § 609.2242, subd. 1 (1996), and one count of disorderly conduct under Minn. Stat. § 609.72, subd. 1 (3) (1996). The state amended the complaint to gross-misdemeanor domestic assault, under Minn. Stat. § 609.2242, subd. 2 (1996), based on appellant’s prior conviction for domestic assault. Appellant stipulated to the prior conviction and the charge was submitted to the jury as misdemeanor domestic assault. The jury convicted appellant of the domestic assault and acquitted on the disorderly conduct charge. Appellant challenges his conviction.
Appellant argues that there is insufficient evidence to support the jury’s guilty verdict. We review the evidence in the record “in the light most favorable to the jury's verdict and assume that the jury believed the state's witnesses and disbelieved contrary evidence.” Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). A reviewing court must recognize that the jury is in the best position to evaluate the credibility of witnesses. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999), cert. denied 120 S. Ct. 153 (1999).
Appellant was convicted of fifth-degree domestic assault under Minn. Stat. § 609.2242, subd. 2 (1996). Section 609.2242 provides:
Subdivision 1. Misdemeanor.
Whoever does any of the following against a family or household member * * * commits an assault and is guilty of a misdemeanor:
(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or
(2) intentionally inflicts or attempts to inflict bodily harm upon another.
Subdivision 2. Gross misdemeanor.
Whoever violates subdivision 1 during the time period between a previous conviction under this section or sections 609.221 to 609.2231, 609.224, 609.342 to 609.345, or 609.713 * * * and the end of the five years following discharge from sentence for that conviction is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year * * *.
Appellant argues that the jury could not have properly found him guilty because (1) R.M.’s testimony was inconsistent, and (2) he offered a reasonable explanation for R.M.’s injuries. Appellant cites the following facts in support of his contention that the jury could not find him guilty of assault: R.M.’s testimony at trial is not consistent with her statement to the police; R.M. did not attempt to escape; R.M. testified that she called police, but there is no record of her call; and R.M. testified that she had memory problems.
Although some of R.M.’s actions may seem perplexing, the jury ultimately found R.M. credible and believed her version of events. Inconsistencies in the state's case do not require reversal if the testimony taken as a whole is consistent and credible. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Determining the credibility of witnesses is the exclusive function of the jury. State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994). The evidence supporting the jury’s decision includes: R.M.’s sister called the police and reported that a domestic assault was taking place; Durette testified that he heard a woman’s voice ask for help from inside the hotel room; R.M. appeared to be disheveled and frantic when the police arrived; photographs of R.M. showed that she was bruised and cut; Durette testified that the bruises and cut appeared fresh; and appellant was uncooperative and belligerent with the police.
This evidence supports the jury’s credibility determination. The jury ultimately concluded that appellant hit R.M., and the jury’s verdict is supported by sufficient evidence in the record.
Appellant, by pro se supplemental brief, also argues ineffective assistance of trial counsel. There is a strong presumption that counsel's performance falls within the broad range of reasonable professional assistance. Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998). To prevail on the claim, appellant must prove that his attorney's representation “fell below an objective standard of reasonableness, and that, but for the attorney's errors, the result would have been different.” Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998) (citation omitted). “Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314-321 (Minn. 2000). But here, a further record is not required to assess appellant’s claim; therefore we will review the claim on this direct appeal. See State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999) (addressing an ineffective-assistance claim in a direct appeal when the record was clear).
Appellant questions the following actions: (1) his attorney did not make an opening statement to the prospective jury members during voir dire; (2) his attorney badgered prospective jurors; (3) his attorney asked him, “how long have you been a drunk?”; (4) his attorney did not enter the Hennepin County booking sheet into evidence, which appellant claims would have shown that he was not wearing boots; (5) his attorney did not object to exhibit 2, a picture of R.M.’s forearm; and (6) his attorney failed to subpoena a police dispatcher to explain that only one 911 call was made. Appellant’s complaints deal with his counsel’s trial strategy. Generally, what evidence to present to the jury and other matters of trial strategy are within the discretion of trial counsel. State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990). Although his attorney’s description of appellant as a “drunk” is not a positive characterization and difficult to explain, the word “drunk” was used only once. In addition, when the testimony is viewed in its entirety, there is nothing that suggests that the result of the trial would have been any different had this odd question not been asked, particularly in light of defendant’s own testimony about his binge drinking.
Appellant additionally challenges certain evidentiary rulings made by the district court. Specifically, appellant questions the district court’s decision not to allow: (1) testimony as to how many times in the past R.M.’s family had called the police; (2) evidence of R.M.’s behavior after the arrest, particularly that she requested that the no-contact order be lifted; and (3) the jury to see the police report. Evidentiary rulings will not be reversed absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). After a careful review of the record and the relevant law we conclude that the trial court did not clearly abuse its discretion.