This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-1690

 

Ryan Curtis Johnson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed April 24, 2001

Affirmed

Peterson, Judge

 

Lake County District Court

File No. K199053

 

 

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

 

 

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

 

 

Bruce L. Anderson, Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN  55616 (for respondent)

 

 

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

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

PETERSON, Judge

This appeal is from an order denying appellant Ryan Curtis Johnson’s petition for postconviction relief.  Johnson argues that he was denied the effective assistance of counsel at trial when his attorney failed to prevent the admission of evidence of his prior convictions for impeachment purposes and failed to instruct a defense witness not to refer to a misdemeanor-assault charge pending against him.  We affirm.

FACTS

While responding to a call reporting a possible burglary, Silver Bay police officer Wayne Billings found Johnson and another man working on a car in a garage.  Billings frisked Johnson and found marijuana and a smoking pipe in his jacket.  Billings testified that while he was trying to remove these items from Johnson’s jacket, Johnson grabbed his shirt, ripped off his nametag, and then tried to grab him around the neck.  Billings arrested Johnson.

Billings testified that Johnson told him that when he was released from prison he was going to sue him for false arrest, rape his wife, kill him, and kill Johnson’s probation officer.  Johnson admitted that he swore at Billings and told him that he was going to sue him for false arrest and assault but denied that he threatened Billings, his family, or the probation officer.

            Johnson was charged with obstructing legal process, witness tampering, aggravated first-degree witness tampering, terroristic threats, possession of a small amount of marijuana, and possession of drug paraphernalia. Before trial, the obstruction of legal process, aggravated first-degree witness tampering, possession of marijuana, and possession of drug paraphernalia charges were dismissed.

            The jury convicted Johnson of witness tampering and terroristic threats.  Johnson moved for a mistrial and a new trial.  The court denied the motions and imposed sentence.  Johnson appealed his convictions alleging ineffective assistance of counsel.  This court dismissed his appeal to allow him to petition for postconviction relief.  Johnson filed a petition for postconviction relief, and after a hearing, the court denied the petition. 

D E C I S I O N

In a postconviction proceeding, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2000).  On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal.  Id.

The right to counsel is the right to effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984).  A convicted defendant who claims that he is entitled to a new trial based on ineffective assistance of counsel has the burden of proving

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) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  Under the prejudice prong, defendant must show by a preponderance of the evidence that his counsel’s error, whether or not professionally unreasonable, so prejudiced the defendant at trial that a different outcome would have resulted but for the error.  Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. In Strickland, the Supreme Court stated that

there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both [prongs] * * * * if the defendant makes an insufficient showing on one [prong].

 

Id. at 697, 104 S. Ct. at 2069.

            Johnson argues that he was denied the effective assistance of counsel at trial when his counsel failed to object to the state’s use of prior convictions to impeach his testimony and failed to instruct a defense witness not to refer to a misdemeanor-assault charge pending against him.  It is undisputed that evidence of two theft convictions was properly admitted.  Johnson claims, however, that if evidence of three burglary convictions, an assault conviction, an escape conviction, and a reference to a pending misdemeanor charge had not been admitted,

a strong likelihood exists that [he] would have been acquitted, given the absurd notion that the victim, a hardened narcotics officer from the Twin Cities, would be frightened or influenced by anything that [he] may have said in anger.

 

The postconviction court found:

The jury had to determine the credibility of [Billings and Johnson] and trial counsel contrary to Minnesota law failed to object to the States offering of prior convictions of [Johnson] to impeach his credibility when most of the convictions were not entitled to be used by the State.

 

This finding indicates that Johnson’s trial counsel’s performance was deficient.  But the postconviction court also found that “it is not reasonable to believe that keeping out the other convictions would have affected the jury verdict.”  The court did not address the reference to the pending assault charge.

We see no basis to conclude that in judging the credibility of Johnson’s and Billings’s testimony, the jury would have reached a different conclusion if it had known about Johnson’s theft convictions but had not known about his other convictions or the pending assault charge. The postconviction court did not abuse its discretion when it determined that keeping out evidence of some of Johnson’s convictions would not have affected the jury’s verdict when evidence of other convictions was properly admitted.  See Ramon v. State, 416 N.W.2d 739, 742 (Minn. App. 1987) (counsel’s failure to challenge stale convictions not prejudicial where two other convictions properly admitted for impeachment), review denied, (Minn. Feb. 17, 1988); see State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994) (admission of robbery conviction not prejudicial where other convictions properly admitted); see State v. Darveaux, 318 N.W.2d 44, 48-49 (Minn. 1982) (admission of misdemeanor theft and 12-year-old assault conviction not prejudicial where two felony-theft convictions properly admitted); see also Laughnan v. State, 404 N.W.2d 326, 330 (Minn. App. 1987) (admission of two escape convictions not prejudicial where 10 convictions properly admitted), review denied (Minn. June 9, 1987). 

            Affirmed.