This opinion will be unpublished and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

C1-00-2067

 

 

State of Minnesota,

Respondent,

 

vs.

 

David James Stollbrack,

Appellant.

 

 

Filed August 7, 2001

Affirmed
Foley, Judge
*

 

Itasca County District Court

File No. KX99538

 

 

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

 

John J. Muhar, Itasca County Attorney, Courthouse, 123 Fourth Street N.E., Grand Rapids, MN  55744 (for respondent)

 

John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, Suite 1042 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges the postconviction court’s order denying his petition for postconviction relief in which he contends he received ineffective assistance of counsel at trial.  We affirm.

FACTS

            In July 1999, after a two-day jury trial, appellant David James Stollbrack was convicted of three counts of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1998).  The charges stemmed from an incident in which appellant made threatening statements to three individuals in Bowstring Township, Itasca County.

            On March 18, 1999, appellant’s car went into the ditch near the home of Steven Duclos and his uncle, William LeNore.  Duclos and his friend, Cody Stangland, drove down the road and offered appellant their assistance, which he first declined, but may have later accepted.[1]

            After returning home, Duclos and Stangland heard someone yelling profanities outside and told LeNore.  LeNore grabbed a shotgun and followed Duclos and Stangland outside as appellant was walking up the driveway.  Duclos also had grabbed a .22 pistol, which he tucked into his pants.  Lenore testified that appellant said: “If you’re gonna offer help, you better damn well better.  Get your little punk ass out here.”

Appellant told them his name and the three victims testified that appellant said he was “gonna kill [them],” that he was “gonna go home and come back” and that they were “all gonna be sorry.” They also stated that appellant told LeNore that he “better use that shotgun” on him because if he did not, appellant would use it when he came back.  Although appellant testified he “never threatened to kill them,” he admitted that he said the following:

 [H]ey, look, you ain’t got a clue who I am.  You don’t know who I am or anybody else, for that matter, you know, and you do this kind of stuff to people, how do you know I’m not going to come in here and kill you, you know? 

 

            As appellant was yelling at LeNore, he shook his finger in LeNore’s face and jabbed him in the nose.  At some point, Duclos called 911 and told the dispatcher that appellant was drunk and threatened to kill his uncle, his friend, and himself.  Police arrived at the scene, found appellant walking along the highway, and arrested him.

            Appellant filed a petition for postconviction relief contending that he was denied effective assistance of counsel.  The postconviction court denied relief and this appeal followed.

D E C I S I O N

            We review a postconviction proceeding to determine whether the evidence is sufficient 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 court’s decision will not be disturbed on appeal.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996). 

            To succeed on a claim of ineffective assistance of counsel, the defendant must demonstrate that (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for the counsel’s errors,” the proceeding’s outcome “would have been different.”  King v. State 562 N.W.2d 791, 795 (Minn. 1997) (citations omitted).

            1.         Jury Instructions

            Appellant first claims that his attorney was deficient in failing to object on the record to the jury instruction that he could be found guilty if his conduct was in “reckless disregard” of the risk of causing terror in another.  He contends that the “reckless” language was inappropriate because the state charged him with intentional conduct only.  Appellant’s assertions have no merit.

            As a matter of law, the statute does not separate the two theories of criminal liability.  It specifically provides the two ways in which a person may commit the crime of terroristic threats:  (1) with purpose to terrorize another, or (2) in reckless disregard of the risk of causing terror in another.  Minn. Stat. § 609.713, subd. 1 (2000).[2]  Further, since its enactment into law, Minnesota courts have instructed the jury on both theories of liability of making terroristic threats.  See State v. Schweppe, 306 Minn. 395, 400-01, 237 N.W.2d 609, 614 (1975) (concluding jury may find defendant either intended to cause fear or “at the very least recklessly risked the danger that his threats * * * would terrorize [the listener]”); State v. Lavastida, 366 N.W.2d 677, 680 (Minn. App. 1985) (concluding jury instruction that divided crime of terroristic threats into four elements—combining intent to terrorize with reckless disregard as the second element of the crime—was proper).

            The complaint here charged appellant with “Terroristic Threats” and properly cited the relevant portion of the statute that contains both theories.  It contained all of the required information—the citation of the statute for each count and the facts establishing probable cause—that served to adequately inform appellant of the charges against him and enabled him to prepare his defense.  See State v. Gerou, 283 Minn. 298, 301, 168 N.W.2d 15, 17 (1969) (stating purpose of complaint is to inform defendants of charges against them).  The complaint need not provide the specific language of the statute.  See Minn. R. Crim. P. 17.02, subd. 3 (“The indictment or complaint shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.”).  Appellant has not shown any prejudice resulting from the omitted language.  See id. (“Error in the citation [of the law] or its omission shall not be ground for dismissal or for reversal of a conviction if the error or omission did not prejudice the defendant.”).  Consequently, even though the complaint failed to provide the reckless language, “reckless disregard” still formed a part of the charges against appellant and was properly included in the instructions such that counsel’s failure to object did not fall below an objective standard of reasonableness.

            Even assuming it was error to include the reckless language, appellant has failed to demonstrate that there was a reasonable probability, but for counsel’s failure to object to the instructions, the outcome of the trial would have been different.  First, although defense counsel was not obligated to object to the jury instructions on the record, he testified that he objected to the instructions in chambers but the objection was denied.  The only error defense counsel may have committed was failing to put his objection on the record.  But any error was harmless because the court had already overruled his objection and would have done so again.  See Minn. R. Civ. P. 61 (requiring court to ignore harmless error).

            Second, counsel’s failure to object on the record would not have prevented appealing the issue, as appellant claims, if the error had been prejudicial.  See State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980) (providing that even though defendant did not object to instructions, reviewing court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence”).

            Finally, the state presented sufficient evidence from which the jury could have concluded that appellant acted intentionally without considering the recklessness of his conduct.  The victims testified that appellant continually threatened to kill them, told them he had served four years in prison, and warned that if LeNore did not use the gun on him, he “was going to come back and use his gun on [LeNore].”  LeNore also testified that appellant was within 18 inches of his face, shaking his fist, and jabbed him twice on the nose.  And appellant testified that although he never threatened to kill the victims, he did use the words “kill you” while talking with them.  Based on all of the evidence, it would not have been unreasonable for the jury to find that appellant intended to terrorize the victims.

            Because the inclusion of the “reckless disregard” language did not constitute error as a matter of law, counsel’s failure to object to the instruction on the record did not “‘so undermine[ ] the proper functioning of the adversarial process that the trial [could not] be relied on as having produced a just result.’”  State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984)).

            2.         Directed Judgment of Acquittal

Appellant also contends that defense counsel was deficient in failing to move for a judgment of acquittal on the ground that there was insufficient evidence of intentional conduct.  Appellant argues that counsel’s failure to move for acquittal, either at the close of the state’s case or at the close of all evidence, was unreasonable.  

            At the postconviction proceedings, defense counsel explained why he decided not to move for a judgment of acquittal:

My own opinion was that given how the State’s evidence had gone in, I really didn’t feel it would accomplish anything at that time.  This was a case that was going to be dependent on a jury’s decision and I really felt like the jury was ultimately our best hope of getting the case resolved favorably.

 

Counsel also remarked that such motions “are rarely, if ever, successful.”  Given that this was a case that essentially turned on whom the jury believed, it was not unreasonable for appellant’s attorney to believe that such a motion would be futile.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (“[W]eighing the credibility of witnesses is the exclusive function of the jury.” (citation omitted)); State v. Edge, 422 N.W.2d 315, 318 (Minn. App. 1988) (“Determination of intent is a question for the jury to decide.” (citation omitted)), review denied (Minn. June 21, 1988).

            Appellant has failed to demonstrate that his attorney’s failure to move for a judgment of acquittal fell below an objective standard of reasonableness, or that but for the failure to make such a motion, the results of the proceeding would have been different.  The evidence is sufficient to sustain the postconviction court’s findings, and the court did not abuse its discretion in denying appellant’s petition for relief.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Appellant claims that he asked Duclos and Stangland for a ride, to which they responded “yes,” but then drove away.  Duclos and Stangland testified that as appellant pointed down the road, he asked if they were going that way and, according to both, appellant said something to the effect, “Well, go then.”

 

[2]The statute provides in relevant part:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

 

Minn. Stat. § 609.713, subd. 1 (2000).