This opinion will be unpublished and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

C7-00-2171

 

State of Minnesota,

Respondent,

 

vs.

 

Kathleen Marie Hanson,

Appellant.

 

Filed October 9, 2001

Affirmed

Randall, Judge

 

St. Louis County District Court

File No. K500100804

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Alan L. Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, No. 501, Duluth, MN 55802-1298 (for respondent) 

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Lindberg, Judge.*


U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

On appeal from convictions of third-degree burglary, falsely reporting a crime, and theft, appellant argues that the district court abused its discretion by precluding her from testifying why she could not have committed the crimes.  Appellant contends this ruling violated her due-process right to present a defense.  Appellant raises additional issues in her pro se brief.  We affirm.

FACTS

Sixteen-year-old K.G. lives with his family kitty-corner from a plant store.  Late one evening K.G. heard a car door slam.  Thinking it might be some friends, K.G. looked out his window.  When he did so, he saw a large, gray car pulling away from the curb.  Approximately 15 minutes later, he heard a car door again.  It was the same large, gray car.  This time a short woman with black hair exited the car and went into the plant store's greenhouse.  K.G. watched the woman enter and exit the greenhouse two times; each time she brought plants out of the greenhouse and placed them in her car.  After the second trip, K.G. telephoned the police. 

When the police arrived, they were not able to find the woman K.G. described, but her car remained.  The police noted potted plants inside the car and determined the car was registered to appellant Kathleen Marie Hanson.  They also found a purse inside the car that contained Hanson's checkbook.  In the meantime, Bonnie Starkman, the store's owner, arrived and identified the plants inside the car as having come from her store. 

A police officer then went to Hanson's home.  There, he noticed plants along the ground and deck similar to the plants found inside the car.  The officer knocked on the door, but no one responded.  A few minutes later, a dispatcher notified the officer that Hanson had just called in from her mother's home to report her car stolen.  The police officer picked up Hanson and brought her to her vehicle. 

When they arrived, K.G. identified Hanson as the same person he saw remove the plants from the store.  And the following day, Starkman identified the plants from Hanson's home as coming from her plant store.  Hanson was arrested and charged with third-degree burglary, falsely reporting a crime, and theft. 

At trial, Hanson argued that she was at a bar that evening and she could not have left the bar, traveled back and forth between the plant store and her home, then run to her mother's home within the time alleged by the state.  She asserted that she went home, went inside to calm her dog, then discovered her car had been stolen, tried to call the police from her own home, was not able to do so, then walked to her mother's home to use her phone to report the theft.

A jury convicted Hanson of all three charges.  Prior to sentencing, Hanson brought a pro se motion to vacate the judgment and for a new trial.  Hanson alleged ineffective assistance of counsel and the discovery of new evidence.  After a hearing, the district court denied her motion, finding her arguments unsupported by the evidence.  The court sentenced Hanson, placing her on two years' probation.  The probation requirements include a fine, six months in a work-release facility, and an alcohol assessment.  This appeal followed.

D E C I S I O N

I.          Right to Present a Defense

Hanson argues that the district court erred by preventing her from presenting a meaningful defense when it precluded her from testifying about why she could not have been the person who stole the plants.[1] 

This court will not disturb the district court's decision to admit or exclude evidence unless it is based on an error of law or constitutes an abuse of discretion.  State v. Stevens, 580 N.W.2d 75, 78 (Minn. App. 1998), review denied (Minn. Aug. 18, 1998).  If the district court has erred in excluding defense evidence, the error is harmless only if the reviewing court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict. 

 

State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).  But if "there is a reasonable possibility that the verdict might have been different if the evidence had been admitted," the error is prejudicial.  Id. 

A criminal defendant has a constitutional right to present a defense.  Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986); State v. Davis, 546 N.W.2d 30, 33 (Minn. App. 1996), review denied (May 21, 1996).  However,  "[a] criminal defendant's right to present evidence in his defense is limited by the rules of evidence."  State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992) (citation omitted), review denied (Minn. Mar. 19, 1992).

On direct examination, Hanson's attorney asked her why she asserted it could not have been she at the garden store.  The state's attorney objected to the question on the grounds that it "goes to the ultimate issue."  The court sustained the objection on the grounds that the answer would be "self-serving."[2]

            Thus, the question presented is whether, by preventing Hanson from responding to the question, the court prevented her from presenting a defense.  It did not.  The jury already had heard Hanson testify that her house is located 7/10ths of a mile from the plant store; about the various routes available to take from her house to the plant store and which way is quicker; about the time it takes to get there by foot or by car; that she had gone directly from the bar to her home; that she left her keys and her purse in the car; that she calmed her dog and changed her clothes; that when she returned to the car to retrieve her keys and purse, she discovered the car had been stolen; that her car had been stolen on another occasion; that she ran to her mother's house to report the theft after discovering her phone was dead; and about the distance to her mother's house and the time it takes to get there, etc.  Even after the district court's evidentiary ruling, Hanson continued to recount her version of the story.  In other words, Hanson's attorney was able to present Hanson's explanation of her actions and to argue that Hanson did not have the time to go back and forth between her home and the plant store, and then over to her mother's house.

Hanson had the opportunity to present her defense through her direct testimony before and after the evidentiary ruling.  The district court's evidentiary ruling did not deny Hanson's constitutional right to present a defense; the court merely sustained an objection to the form of her attorney's question.  See Minn. R. Evid. 611(a) (allowing district court to control reception of evidence to avoid repetitious, time-wasting presentations).  In sum, the district court neither abused its discretion nor denied Hanson the right to present a defense.  Because the district court did not err, we do not reach a harmless-error analysis.

II.        Ineffective Assistance of Counsel

In her pro se brief, Hanson argues that the district court abused its discretion when it denied her a new trial based on her counsel's ineffectiveness.  Hanson claims her counsel's assistance was ineffective because he did not present the witnesses she thought he should have, did not conduct sufficient investigation, did not spend sufficient time with her to properly defend her, failed to use visual aids in court, and failed to make all the objections he could have.

A reviewing court will not disturb a district court's denial of a motion for a new trial absent an abuse of discretion.  Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991).  To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: (1) the attorney's representation fell below an objective standard of reasonableness; and (2) but for the attorney's errors, the proceeding's outcome would have been different.  State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000).  When determining whether counsel's representation fell below an objective standard of reasonableness,

[a] strong presumption exists that counsel's performance fell within a wide range of reasonable assistance.  Particular deference is given to the decisions of counsel regarding trial strategy.

 

State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted).

Here, the behavior Hanson complains of is based on decisions regarding trial strategy.  See State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (determining whether to file motion for change of venue, call certain witnesses, and cross-examine witnesses constitute questions of trial strategy that lie within trial counsel's discretion and will not be reviewed later for competence); State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (recognizing presentation of evidence to jury, including which witnesses to call, represents decision regarding trial tactics and lies within a trial counsel's discretion); Lahue, 585 N.W.2d at 789-90 (stating that counsel's alleged failure to explore significance of cigarette butts found at murder scene, impeach eyewitness' testimony adequately, locate possible defense witness, and present effectively defense's theory during counsel's opening statement do not constitute ineffective assistance of counsel). The decisions Hanson complains of are based on discretionary trial strategy and do not constitute ineffective assistance of counsel.

We conclude that Hanson's attorney professionally and reasonably assisted her.  The district court did not abuse its discretion by denying Hanson a new trial on the grounds of ineffective assistance of counsel.

III.             Conflict of Interest

Hanson next argues that the district court abused its discretion when it denied her a new trial based on her attorney's alleged conflict of interest.  Hanson asserts that she objected to Williams' assignment to her case because she had had difficulty with him in 1992-93.  On appeal, however, Hanson failed to brief the issue and, therefore, the issue is waived.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (recognizing issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

Further, there is nothing in the district court record to support Hanson's assertion regarding an earlier relationship she may have had with Williams.  See Thiele v. Stich, 425 N.W.2d 580, 583-84 (Minn. 1988) (stating appellate court may not consider matters not produced and received in evidence in district court); see also Minn. R. Civ. App. P. 110.01 (defining record on appeal as district court papers, exhibits, and transcript). Because Hanson neither briefs the issue nor presents any evidence to support her allegations of her counsel's alleged conflict of interest, the issue is waived.

IV.       Inconsistent Testimony

Hanson also argues that she received an unfair trial because the testimony of the state's witnesses was perjured, as evidenced by its inconsistency.

However, the supreme court

has recognized that inconsistencies and conflicts in some particular area between one state witness and another do not constitute false testimony nor any basis for reversal. 'They are a sign of the fallibility of human perception—not proof that false testimony was given at trial.

 

State v. Stufflebean, 329 N.W.2d 314 (Minn. 1983) (quotation omitted).  This is particularly true where the "testimony, when taken as a whole, was consistent."  Id.  When conflicting testimony is presented, it is the jury's function to weigh the credibility of witnesses.  State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (stating that automatic reversal is not required despite inconsistencies in state's case). 

Here, the record shows that the testimony of the state's witnesses was, as a whole, consistent.  The slight inconsistencies do not constitute perjury.  Juries routinely have to sort out conflicting testimony, not just between opposing sides, but at times conflicting testimony from different witnesses put forth by the same party.

V.        Probation Requirements

Finally, Hanson argues that the district court injured her when, as part of probation, the court ordered Hanson to abstain from all alcohol and drug use; stay out of all establishments that serve alcohol; submit to urinalysis at her own expense; and obtain an Alcohol Problem Assessment (APA).  Hanson argues this was error because no evidence of alcohol abuse was presented during the trial or at any other time.  Additionally, Hanson asserts that the district court rejected her first APA, although it indicated no alcohol-related problem, and required her to obtain a second APA indicating no alcohol-related problem before it would remove the alcohol- and drug-related probation requirements.  She asserts that the probation requirements were unfounded and unreasonable.

First, it is within the district court's discretion to place defendants on probation and to impose conditions of probation.  See Minn. Sent. Guidelines IV (stating district court may impose non-jail sanctions as probation conditions where presumptive is stayed sentence); see also Minn. Stat. § 609.135, subds. 1(a) (1998) (stating district court may stay execution of sentence and place defendant on probation on terms prescribed by court).  Further, when the district court sentences a person convicted of a felony, the court must order a pre-sentence investigation that includes information regarding "the defendant's individual characteristics, circumstances, needs, potentialities, criminal record and social history * * * ."  Minn. Stat. § 609.115 subd. 1(a) (2000).

An alcohol and chemical assessment would reveal to the district court some of Hanson's "individual characteristics, circumstances, needs, * * * and social history."  Id.  Ordering such an assessment easily rests within a district court's discretion.  The fact that the court ordered the assessment to occur after sentencing is of no consequence.  We recognize that the expense of such an assessment (or even two such assessments) may be financially burdensome, but it does not alter the result.  See Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997) (holding sentencing court need not find defendant has ability to pay fine before imposing sentence).  The district court was within its discretion to order Hanson to obtain two APAs at Hanson's expense.

            Affirmed.

 



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

[1]  As a preliminary matter, the state argues that the rules of evidence prohibit this court from considering Hanson's argument because Hanson's attorney did not make an offer of proof to preserve the issue for appeal.  Under the rules of evidence, if the district court rules to preclude evidence, the party wishing to preserve the issue for appeal must make an offer of proof if the substance of the proposed evidence is not clear from the context.  Minn. R. Evid. 103(b) 1989 comm. cmt.  Here, the substance of the excluded evidence is apparent from the context.  Therefore, Hanson's counsel was not required to make an offer of proof to preserve the issue for appeal.

[2]  In their briefs, both parties agree that neither "ultimate issue" nor "self-serving" is a valid objection.