This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Polk County District Court
File No. K098819
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Wayne H. Swanson, Polk County Attorney, 101 Crookston Professional Center, 223 East 7th Street, Crookston, MN 56716-1498 (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.
Appellant John Herbert Sawchak challenges the denial of his petition for postconviction relief from his convictions of theft of a motor vehicle, two counts of fifth-degree assault, and driving under the influence of alcohol. Because (1) the district court committed plain and prejudicial error by giving an outdated instruction on the elements of theft, (2) the error was exacerbated by allowing the prosecutor to emphasize the instruction in rebuttal argument, and (3) counsel’s failure to object to the instruction constituted ineffective assistance of counsel, we reverse the conviction for theft of a motor vehicle and remand for a new trial. Because even if counsel’s disclosure of a privileged statement relating to alcohol use was objectively unreasonable, the disclosure did not affect the jury’s verdict on the charge of driving under the influence of alcohol, and because the evidence was sufficient to support the convictions of fifth-degree assault, we affirm the denial of postconviction relief for those convictions.
Sawchak encountered a group of five young people on a lake dock. Three of the young people arrived on a jet ski. Sawchak appeared intoxicated to the young people. As the teenagers walked to their cars, Sawchak jumped on the jet ski. J.F., one of the group members, yelled at Sawchak to get off the jet ski and to turn it off. Sawchak drove the jet ski onto the lake into an area of vegetation where it got stuck. J.F. swam out to the jet ski, shut the motor off, and pushed it back to the dock where Sawchak made conversation as if nothing had happened. When J.F. attempted to leave the dock, Sawchak, who is 6’ 2” and, at the time, weighed about 245 pounds, became very aggressive, blocking the way. When J.F. looked away from Sawchak, Sawchak grabbed him hard by the jaw and pulled J.F.’s face close to his, telling J.F. to look at him when he was talking. J.F. was able to break Sawchak’s grip and move away. J.C., another member of the group, came to the dock and tried to give J.F. an excuse to leave the dock. J.F. was finally able to side-step Sawchak and leave the dock. Sawchak followed J.F. as he walked toward the cars, saying something about wanting to talk to the girls. J.F. had the two young women of the group get into his truck and lock the doors. Sawchak went to the truck and pounded on the window with his fist. J.F., who thought the pounding would break the window, yelled at him to stop whereupon Sawchak turned his attention to two of the young men, R.F. and N.Y., and began yelling at them. The boys got into R.F.’s car. Sawchak followed R.F. to the passenger side and opened the door before R.F. could lock it. As N.Y. drove off, Sawchak ran alongside the car with the door held open saying, “Wait, wait, I just want to talk to you.” N.Y. described Sawchak as becoming violent and belligerent. The teenagers went to J.C.’s mother’s campsite, and she called the sheriff.
Two deputies went to Sawchak’s mother’s cabin, where Sawchak had gone to sleep. According to the deputies, Sawchak’s speech was slurred, he was incoherent, he had bloodshot eyes, he had poor balance, and he was aggressive and out of control. The deputies testified that Sawchak was, in their opinion, under the influence of alcohol. A tape recording of Sawchak’s angry encounter with the deputies was played to the jury. Sawchak’s mother provided a deputy with a bottle of Everclear that Sawchak had been drinking from that day. The label indicated it was 190 proof, or 95 percent alcohol. At trial Sawchak testified that he consumed three to four shots of alcohol over a period of five hours.
A jury convicted Sawchak of theft of a motor vehicle, two counts of fifth-degree assault, and driving under the influence of alcohol. Sawchak petitioned for postconviction relief arguing that (1) the district court committed plain error by giving an outdated jury instruction on theft and exacerbated the error by allowing prosecution rebuttal argument that emphasized the erroneous instruction, (2) he received ineffective assistance of counsel, and (3) the state failed to prove the elements of fifth-degree assault beyond a reasonable doubt. The district court denied the petition, and Sawchak appeals.
1. Standard of review
Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Id. (citation omitted). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. (citation omitted).
2. Jury instruction
The 1998 statute defining theft of a motor vehicle governs this case and provides in relevant part:
Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:
* * * *
(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.
Minn. Stat. § 609.52, subd. 2(17) (1998). The district court, without objection from either counsel, read an instruction that was based on the 1996 version of the statute and does not contain the language “knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.” The jury was instructed that
[t]he statutes in Minnesota provide that whoever intentionally takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner is guilty of theft of a motor vehicle.
Neither party challenges the postconviction court’s finding that the district court committed plain error by instructing the jury on the 1996 statute. Sawchak argues that the postconviction court abused its discretion by determining that the error was harmless. We agree.
Sawchak’s defense to the theft charge was that he subjectively believed that he had permission to drive the jet ski. He testified that he was looking at the jet ski and thought he heard R.F. tell him to “take it for a spin.” Sawchak testified that he assumed that the girl who had been on the jet ski was R.F.’s sister and that R.F. had authority to consent to his use of the jet ski. Sawchak and his mother testified that he has a hearing problem. Sawchak denied hearing anyone yell at him to get off the jet ski.
In closing argument, Sawchak’s counsel urged the jury to find Sawchak not guilty of theft, arguing that Sawchak reasonably, albeit mistakenly, believed he had consent to ride the jet ski. The district court permitted rebuttal closing argument by the prosecutor, who told the jury:
[Counsel] was suggesting that his client had a complete defense if he subjectively believed that he had consent from someone to take this jet ski. Read the jury instructions. It says it’s a crime if he takes or uses the jet ski without the consent of the owner or an authorized agent. Nowhere does it say that just because he subjectively believes he has consent from someone is[sic] reasonable for him to take that item. If that were the case every criminal defendant would be excused from criminal liabilities simply by denying responsibility by saying I did not subjectively believe that what I was doing was a crime. * * *
Plain error is subject to a harmless-error analysis. Neder v. United States, 527 U.S. 1, 10, 119 S. Ct. 1827, 1834 (1999) (holding that the omission of an element in a jury instruction is subject to harmless error analysis.) A defendant has the “heavy burden” of persuasion and must demonstrate that “the error was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An erroneous jury instruction is harmless if it can “be said beyond a reasonable doubt that the error had no significant impact on the verdict.” State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997) (citation omitted).
The postconviction court concluded that admission of the erroneous jury instruction was harmless error because Sawchak should have known he did not have permission to take the jet ski. As support for its conclusion, the postconviction court reasoned that (1) the five young people testified that they did not give permission to Sawchak to take the jet ski and that they did not hear anyone give permission to Sawchak to take the jet ski, (2) the jet ski’s owner testified that she did not give Sawchak permission to take the jet ski, and (3) all five witnesses testified that Sawchak got on the jet ski and drove it despite the fact that J.F. told him to get off of it.
A correctly instructed jury may have found that Sawchak should have known he did not have permission to take the jet ski. The jury, however, was deprived of the opportunity to consider what Sawchak should have known because of the error in the instruction that was compounded by the prosecutor’s rebuttal argument. We hold that it was an abuse of discretion for the postconviction court to conclude beyond a reasonable doubt that the erroneous instruction combined with the prosecutor’s focus on the erroneous instruction had no significant impact on the verdict. The error was not harmless.
3. Ineffective assistance of counsel
a. Failure to object to instruction and rebuttal argument
The postconviction court concluded that Sawchak failed to show ineffective assistance of counsel with regard to trial counsel’s failure to object to the erroneous jury instruction and the prosecution’s rebuttal. We disagree. To prevail on a claim of ineffective assistance of counsel:
[t]he defendant must affirmatively prove 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
The jury instruction and the prosecution’s rebuttal both omitted the element of “knowing or having reason to know” from the charge of theft of a motor vehicle. This element was the very heart of Sawchak’s defense. Sawchak’s trial counsel should have known the elements of the crime for which Sawchak was charged and should have objected when the jury instruction and the prosecutor’s argument did not conform with those elements. Failure to have this elemental knowledge and failure to object to the erroneous instruction and argument were objectively unreasonable. As discussed above, there is a reasonable doubt about whether the error affected the verdict. The evidence does not support the postconviction court’s denial of Sawchak’s claim of ineffective assistance of counsel regarding the erroneous jury instruction. Because the errors relating to the theft conviction are not harmless and Sawchak was denied effective assistance of counsel, we reverse Sawchak’s conviction of theft of a motor vehicle and remand to the district court for a new trial on this charge.
b. Disclosure of privileged information
Sawchak also contends that he received ineffective assistance of trial counsel because his counsel violated attorney-client privilege when he disclosed an incriminating statement that Sawchak gave to a public defender investigator and did not object to the introduction of the statement at trial. Sawchak told the investigator that he drank three to four shots of alcohol during the five hours before he drove the jet ski. Sawchak’s counsel disclosed a transcript of the taped statement containing this statement to the prosecutor before the complaint was amended to add a charge of driving under the influence. The investigator was called to testify at trial, and Sawchak’s counsel did not object to testimony about this statement.
The state contends that the court does not have to determine whether Sawchak’s trial counsel’s conduct was objectively unreasonable because disclosure of the statement clearly was not prejudicial. We agree. Even if counsel’s conduct was objectively unreasonable, the postconviction court did not abuse its discretion in concluding that Sawchak’s disclosure of the statement and failure to object to admission of the statement at trial did not give rise to a reasonable probability that the result of the proceeding would have been different.
A substantial amount of evidence was admitted to support the charge and conviction of driving under the influence of alcohol. It is undisputed that Sawchak was drinking alcohol on the dock and drove the jet ski. At trial, Sawchak testified that on the date of the incident he drank three or four shots of Everclear mixed with orange juice over the course of five hours. R.F. and N.Y. testified that (1) Sawchak told them he was drinking orange juice and Everclear and (2) Sawchak appeared intoxicated. The deputies who went to Sawchak’s cabin, who are both certified intoxilyzer operators, testified that they believed Sawchak was under the influence when they saw him shortly after the incident. There is not a reasonable probability that the verdict on the charge of driving under the influence would have been different without the investigator’s testimony. Sawchak’s argument that he would not have been charged with driving under the influence absent disclosure of the statement is merely speculation.
4. Sufficiency of evidence
a. Fifth-degree assault against J.F. on the dock
The postconviction court did not abuse its discretion in determining that sufficient evidence was presented at trial to support the jury’s verdict of guilty of fifth-degree assault. A person is guilty of fifth-degree assault if that person “intentionally inflicts or attempts to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1(2) (1998). “Intentionally” means that
[t]he actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, * * * the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”
Minn. Stat. § 609.02, subd. 9(3) (1998).
Sawchak argues that although he grabbed J.F.’s jaw and turned his head, the state failed to prove that J.F. suffered bodily harm. “Bodily harm” is defined as “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7 (1998). J.F. testified that Sawchak grabbed his jaw hard and was angry. R.F. testified that it looked like Sawchak was hurting J.F. “because [J.F.] sort of cringed his shoulders like it was.” Although J.F. testified that he was not physically injured, a reasonable jury could conclude that Sawchak had attempted to inflict bodily harm.
The postconviction court also did not abuse its discretion in determining that sufficient evidence was presented to support the jury’s verdict of guilty of fifth-degree assault against J.F. and the young people once they were at the cars. The postconviction court reasoned that (1) Sawchak, having already grabbed J.F. on the dock, followed J.F. to his truck, (2) Sawchak “pounded the sin out of [J.F.’s] window” where the girls were sitting, (3) Sawchak started to yell at R.F., (4) Sawchak opened R.F.’s car door, and (5) it looked as if Sawchak was trying to pull R.F. from the car. Several of the teenagers testified that they were concerned for their safety or the safety of their friends. Sawchak was a big, belligerent, intoxicated, and angry adult physically accosting a group of obviously apprehensive teenagers. The evidence is sufficient to show that a reasonable jury could have concluded that Sawchak acted with intent to cause fear of immediate bodily harm in J.F. and others.
Affirmed in part, reversed in part, and remanded.