This opinion will be unpublished and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
Charles Whitney Slabaugh, petitioner,
State of Minnesota,
Filed October 9, 2001
Steele County District Court
File No. K199485
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Lindberg, Judge.
U N P U B L I S H E D O P I N I O N
In May 2000, a jury convicted appellant Charles Slabaugh of second-degree felony murder and two counts of first-degree arson, for the murder of his wife and the destruction of his home. The trial court sentenced him to a presumptive sentence of 306 months on the second‑degree murder conviction, a 48‑month consecutive sentence on the arson conviction for the June 1998 fire, and a 78‑month concurrent sentence on the arson conviction for the July 1998 explosion. Slabaugh challenges his convictions and sentence, claiming that: (1) the evidence was insufficient to support the jury's verdict for the second‑degree murder conviction; (2) he could not be convicted of first‑degree arson stemming from the July 1998 explosion because the state failed to prove beyond a reasonable doubt that the home was being used as a dwelling at that time; and (3) his sentence for arson stemming from the June 1998 fire must be vacated as arising from the same behavioral incident as the murder. In his pro se appeal, Slabaugh claims he received ineffective assistance of trial counsel. We affirm the convictions and sentence, and find no merit in Slabaugh's ineffective assistance of counsel claims.
On June 9, 1998, appellant Charles Slabaugh awoke at 5:00 a.m. and left his home around 6:45 a.m. He testified that he last saw his wife of 14 years standing in the kitchen. After attending a couple of meetings, Slabaugh called his office around 8:30a.m. and learned that, oddly, his wife had not yet arrived at work and the employees were unable to reach her at home. Lynn and Charles Slabaugh had owned and successfully operated the Owatanna Lamp Company since 1983. Slabaugh traveled frequently and was in charge of all outside sales, while his wife managed the daily business operations and the company's employees, and was generally in the office by 7:00 a.m.
Slabaugh drove home immediately, saw the smoking home and his wife's car still parked in the driveway, and telephoned his employees, requesting that they call 911 because the call would not go through on his cell phone. The fire department received the emergency call at 8:48 a.m. and arrived at the home at approximately 9:02 a.m. Slabaugh testified that, before the fire department arrived, he attempted to enter the home two or three times, but was unable to do so because of the thick smoke and heat. Witnesses, however, testified that they saw no soot on Slabaugh's clothes and that he didnot smell of smoke.
The fire fighters found Lynn Slabaugh's body, wet and naked at the bottom of the basement stairs, shortly before 10:00 a.m. and informed Slabaugh that she was dead. Shortly after learning of his wife's death, Slabaugh telephoned his insurance agent, his banker, his brother, a couple that he had known for many years through his business, and the prospective buyer of the lamp company. Slabaugh testified that he considered these individuals his friends. The majority of these individuals testified that they considered him to be mostly a business acquaintance. Slabaugh next informed his employees of his wife's death, called hiswife's sister, and subsequentlywent to lunch.
After the fire fighters found Lynn Slabaugh'sbody, an expert examined her bodyto determine the time and cause of death. Investigators collected physical evidence for DNA testing, including some blood samples, a vaginal swab, and a broken fingernail found in the hot tub. The forensic pathologist who subsequently performed an autopsy on Lynn Slabaugh's body determined that she died as a result of a crushing chest trauma, strangulation, and/or drowning; or, in other words, asphyxiation. He was unable to establish an exact time of death.
The police and fire investigators also attempted to determine the cause and start time of the fire and the motive. They concluded that: (1) the fire had been set intentionally; (2) it was started between 6:30 and 6:45 a.m.; and (3) a combustible liquid (turpentine) poured into the wall space between the kitchen and the basement stairs was used to accelerate the start and pace of the fire, but, because the fire was deprived of oxygen, it entered into a smoldering phase.
A specific motive was not fully apparent. First, robbery was eliminated as a motive because a significant amount of cash was found in the home. Second, Charles and Lynn Slabaugh's insurance policies were not unusual or excessive, and they were not purchased very recently. The Slabaughs, however, also stood to gain $600,000 from the sale of the lamp business. After deciding to sell the business and finding a buyer, the deal was set to close on July 1, 1998. Because of Lynn Slabaugh's death on June 9, 1998, the sale never materialized. Finally, the Slabaughs' relationship appeared to represent a business partnership rather than an intimate marriage. And Lynn Slabaughhad two extra‑marital affairs, but testimony was conflicting whether Slabaugh was aware of these affairs.
After the June 9 fire, the Slabaugh home was boarded up and locked. Utilities to the home were disconnected, except for a temporary electrical service for a pressure tank located in the basement that was used to activate an electric water pump in a nearby well.
On July 8, 1998, the Slabaugh home was further destroyed by an explosion. Slabaugh testified that he arrived at his home on July 8 around 6:00 a.m. to feed and water the animals, as he had been doing on a daily basis since June 9, and noticed that a door to the home was unlocked and a light was on in the basement. After Slabaugh entered the home to investigate, it blew up, causing severe burns to his upper body. There was conflicting testimony as to whether Slabaugh was in the basement or upstairs during the explosion. Slabaugh also testified that his attempts to reach 911 from his cell phone were unsuccessful, so he again called the lamp company and an employee placed the emergency call. One of the fire fighters that arrived at the home on July 8, however,testified that he was able to reach 911 from Slabaugh's cell phone without difficulty.
Slabaugh was subsequently charged with first‑degree premeditated murder, second‑degree intentional murder, and two counts of first‑degree arson (for the June 9 fire and the July 8 explosion). He was convicted of the second‑degree murder and the two arson counts. This postconviction appeal follows.
Slabaugh argues that the evidence is insufficient to support his conviction for the second‑degree felony murder of his wife. In considering the sufficiency of the evidence, the reviewing court must view the evidence in the light most favorable to the jury's verdict and must assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). Generally, in reviewing the evidence and the legitimate inferences drawn from the facts in the record, this court must determine if the evidence is sufficient to allow the jury to reasonably conclude the defendant is guilty beyond a reasonable doubt of the charges. State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000). Although a conviction based on circumstantial evidence warrantsstricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). And in a conviction based on circumstantial evidence, the evidence must form a complete chain that directly leads a rational trier of fact to conclude the defendant's guilt and makes any other theory unreasonable. State v. Gates, 615 N.W.2d 331, 337‑38 (Minn. 2000).
Slabaugh contends that the physical evidence linking him to Lynn Slabaugh'smurder was insufficient. First, Slabaugh claims that the sample of blood from his pants containing his wife's DNA could have been on his pants for months and that his DNA found under her fingernails does not definitely link him as the murderer. He also claims the state did not prove that he was in the home when the fire was started because the statefailed to prove beyond a reasonable doubt that a lamp timer, which suggested the fire's start time, was accurately set. Finally, he claims the state failed to prove a motive for the murder.
The elements of second‑degree felonv murder are set forth in Minnesota Statutes section 609.19(2), subd. l(l) (1998), which provides that whoever “[c]auses the death of a human being, with intent to effect the death of that person or another, butwithout premeditation” is guilty of second‑degree felony murder. Contrary to Slabaugh's argument, there is sufficient circumstantial evidence in' the record that forms a complete chain from which the jury could conclude that Slabaugh murdered his wife.
First, DNA tests indicated that Lynn Slabaugh's blood found on Slabaugh's pants was not an old stain. Also, DNA test results on material found under one of Lynn Slabaugh's broken fingernails,which was found in the hot tub, indicated that Slabaugh could not be eliminated from the list of possible contributors to this material. Slabaugh inconsistently told numerous witnesses and testified that fresh scratches on his face came from a confrontation with one of the family cats or from tree branches while mowing the lawn. But a forensic pathologist who performed the autopsy, and at least one other witness, testified that the scratches were consistent with that of a human fingernail. From this information, the jury could reasonably conclude that scratches on Slabaugh's face and the bloodstain on his pants resulted from a physical confrontation with Lynn Slabaugh on the morning she was murdered.
Second, the evidence supports that Slabaugh had the opportunity to murderhis wife. Slabaugh testified that he awoke at 5:00 a.m. on June 8, and the evidence is not in dispute that he left his home at approximately 6:45 a.m. and returned sometime around 8:45 a.m. He calledthe lamp company at approximately 8:45 a.m. informing them of the fire, and the arson investigator testified that the fire had probably burned for 1 or 2 hours to 2 1/2 hours before the fire department arrived around 9:00 a.m. In light of this evidence, the jury could reasonably conclude that Slabaugh was still in the home when the fire started.
The investigators also based the fire's start time on an automatic timer from the family room, which had stopped working at approximately 6:45 a.m. Expert testimony indicated that a short circuit occurred in the automatic timer about 15 to 20 minutes after the fire started. Despite conflicting testimony regarding the accuracy of the timer's clock setting, the jury was free to weigh the evidence as it did. In light of the evidence, it is not unreasonable for the jury to conclude that the timer was accurately set and that the fire started around 6:30 a.m.
The jury was also free to weigh the evidence regarding the potential motive for Lynn Slabaugh's murder. There is sufficient evidence for the jury to reasonably conclude that Slabaugh murdered his wife either for money or because of an unusual or less‑thanperfect marriage arrangement.
Finally, the jury was faced with numerous instances of conflicting testimony from Slabaugh and various witnesses. And this court must recognize that the jury is in the best position to assess a witness's credibility and assume that the jurors believed the state's witnesses. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999). Numerous witnesses offered conflicting testimony that challenged the veracity of Slabaugh's claims. The jury's verdict indicates that it believed the witnesses' testimony instead of Slabaugh's.
The jury reasonably could conclude that the circumstantial evidence in this case ‑such as the DNA evidence, the timing of the events, Slabaugh's behavior, and conflicting testimony ‑ shows that Slabaugh murdered his wife. The conviction for second‑degree intentional murder is, therefore, affirmed.
Slabaugh also challenges his arson conviction relating to the July 1998 fire and explosion, claiming that the state failed to prove beyond a reasonable doubt that the home was being used as a dwelling when it was intentionally set on fire. Under Minnesota law, a person commits arson in the first degree if he
unlawfully by means of fire or explosives, intentionally destroys or damages any building that is used as a dwelling at the time the act is committed, whether the inhabitant is present therein at the time of the act or not * * *.
Minn. Stat. § 609.561, subd. 1 (1998). Slabaugh contends that his home was not being used as a dwelling on July 8, 1998, because it had been boarded up with all but the temporary electrical service shut off after the June 1998 fire and he was staying with a friend.
In general, a dwelling under common law has been defined in connection with arson as a house intended to be occupied as a residence. Black's Law Dictionary 524 (7th ed. 1999). The evidence showed that: (1) the Slabaughs lived in the home a month before the explosion; (2) the home was not a total loss, (3) the pressure tank, used toactivate an electric water pump in a nearby well, still received electricity; and (4) Slabaugh went to the home on a daily basis to feed and water the animals. Thus, the home was not wholly deserted or condemned and was still being used as a dwelling within the meaningof the arson statute. See State v. Battin, 474 N.W.2d 427, 430 (Minn. App. 1991) (evidence that defendant had keys to the house, had stayed in the house during monthbefore fire, and that house contained signs of inhabitance including bed, television, stereo, and empty beer cans was sufficient to support the jury conclusion that house was used as dwelling at time of fire), review denied (Minn. Oct. 23, 1991). Given the above facts that the home was not deserted or condemned, it is not unreasonable for the jury to conclude that the home was being used as a dwelling in connection with arson at the time of the July explosion. Therefore, Slabaugh's arson conviction for the July explosion is affirmed.
Slabaugh next argues that receiving a sentence for both the murder conviction and the arson conviction relating to the June 1998 fire violates the statutory prohibition against multiple punishments for the same conduct. He claims that the murder and arson convictions arose from the same behavioral incident.
“[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * *.” Minn. Stat. § 609.035, subd. 1 (2000). Thus, if a defendant commits numerous crimes against the same person during a single behavioral incident, Minn. Stat. § 609.035 provides that the defendant may be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). Minnesota law, however, provides an exception to the bar against multiple convictions and multiple punishments for a single behavioral incident when the arson offense is committed to conceal any other crime. In this case, there was no dispute that the arson was used to cover up the murder. On appeal, Slabaugh even notes that “the June fire in this case * * * was purposely set to cover up a murder.” The trial court did not, therefore, err in imposing a separate consecutive sentence for Slabaugh's arson conviction relating to the June 1998 fire.
In his pro se brief, Slabaugh argues that his trial counsel was ineffective by failing to (1) completely cross‑examine three witnesses; (2) seek a change of venue; and (3) challenge an alleged misstatement by the prosecutor. A defendant claiming ineffective assistance of counsel must show by a preponderance of the evidence that his counsel's representation “fell below an objective standard of reasonableness” and that counsel's error so prejudiced defendant at trial that, but for the error, there would have been a different outcome at trial. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Whether representation fell below an objective reasonableness standard requires a determination as to whether the representation was “reasonable in the light of all the circumstances.” Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). A strong presumption exists that a counsel's representation fell within the range of reasonableness. King v. State, 562 N.W.2d 791, 795 (Minn. 1997).
Slabaugh contends that during cross‑examination his counsel inadequately challenged the testimony of two of his employees. Slabaugh claims that these witnesses were hostile and their statements conflicted with his testimony. Notably, it is for the jury to weigh the evidence, determine the credibility of witnesses, and evaluate any conflicting testimony. State v. Pinkerton, 628 N.W.2d 159, 162 (Minn. App. 2001). Slabaugh also contends that his counsel was ineffective because he failed to challenge an expert's theory regarding the July 8 explosion. Slabaugh claims that his counsel should have allowed him to show his burn scars to the jury to refute the expert's testimony.
This courtgenerally does not pass judgment on a defense counsel's trial tactics. State v. Ronquist, 578 N.W.2d 4, 7 (Minn. App. 1998), affd,600 N.W.2d 244 (Minn. 1999). And trial counsel's choice of trial tactics generally will not serve as a basis for finding ineffective assistance. Cooper v. State, 565 N.W.2d 27, 33 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Trial tactics include counsel's choice to present certain testimonial evidence and how to cross‑examine prosecution witnesses. Id. The alleged errors that Slabaugh challenges involve the exercise of tactical trial judgment within his counsel's discretion and thus cannot support a claim of ineffective assistance. See Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (counsel's choice of what evidence to present is a matter of trial strategy and thus rests in trial counsel's discretion).
Slabaugh also claims that his counsel was ineffective by failing to seek a change of venue. But the decision of whether to file a motion for a change of venue is a matter of trial strategy and cannot support a claim of ineffective assistance. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).
Finally, Slabaugh argues that the prosecutor misstated a material fact in closing argument and that defense counsel failed to rebut the alleged misstatement. The jury, however, was fully instructed that any comments by the attorneys should not be considered as evidence and that the jury should draw their own inferences from the evidence. Given the strong presumption that trial counsel's performance fell within a range of reasonableness, we find no merit in Slabaugh's claim of ineffective assistance of counsel.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The jury found him not guilty of premeditated first-degree murder.
 As the state notes in its brief, Slabaugh's reliance on State v. Wipper, 512 N.W.2d 92, 94‑95 (Minn. 1994), is misplaced because of the statutory exception enacted in 1997 and applied to offenses committed on or after August 1, 1997. 1997 Minn. Laws ch. 239, art. 8, §§ 29, 37.