This opinion will be unpublished and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
State of Minnesota,
Todd Charles Tibbetts,
Itasca County District Court
File No. KX001745
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, 123 4th Street NE, Courthouse, Grand Rapids, MN 55744 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.
Appellant challenges his conviction of witness tampering and aggravated witness tampering, arguing that evidence that appellant threatened to kill a deputy sheriff if he lied on the stand while testifying against appellant’s wife is not sufficient to prove that appellant intended to keep him from testifying. Because the evidence is sufficient to support the conviction, we affirm.
On September 17, 2000, at approximately 1:30 p.m., Deputy Ryan Gunderson of the Itasca County Sheriff’s Department arrested a burglary suspect along County Road 39. When Gunderson stopped the suspect’s car, the suspect got out and began to run. Gunderson chased the suspect and apprehended her. As Gunderson placed the suspect in the back of his squad car, he heard appellant Todd Charles Tibbetts yelling at him from across the road, approximately 30 yards away. Appellant, who was angry and yelling loudly, told Gunderson that he had “no right to be there” and that he should not have arrested the individual.
After Gunderson secured the suspect in the squad car, appellant ran toward Gunderson until they were “nose to nose” and “toe to toe.” Appellant was not wearing a shirt, and Gunderson noticed tension in appellant’s chest and arm muscles. Appellant’s face was red from anger. Gunderson, who knew as a matter of “common knowledge” that appellant had a history of assaultive behavior with police officers, attempted to avoid a physical altercation with appellant. Gunderson told appellant to leave. Appellant began to walk away, but immediately turned around and yelled, “I’m going to f---ing kill you, Gunderson.” Gunderson told appellant that if he continued to behave in that manner he would go to jail. Appellant next told Gunderson three times that he was “going to f‑‑‑ing kill you, Gunderson, if you lie on the stand tomorrow.” Gunderson was scheduled to testify the next day in a court proceeding related to adomesticdisturbanceinvolvingappellant’s wife. Appellant ran away, and Gunderson could not pursue him because of the juvenile in his squad car. But Gunderson went home that afternoon and told his wife to lock the doors and call 911 if any strangers appeared.
At approximately 7:45 p.m. Gunderson received a message that appellant wished to speak with him. When Gunderson returned appellant’s call, appellant apologized for his earlier behavior.
Appellant was charged with first-degree aggravated tampering with a witness pursuant to Minn. Stat. § 609.498, subd. 1b(a)(1) (1998); first-degree tampering with a witness pursuant to Minn. Stat. § 609.498, subd. 1(a) (1998); and making terroristic threats pursuant to Minn. Stat. § 609.713, subd. 1 (1998). Respondent dismissed the terroristic-threats charge. Appellant agreed to a court trial and was found guilty of both witness-tampering charges. He received a 33-month sentence, a downward departure from the presumptive sentence of 122 months based on appellant’s criminal-history score. This appeal follows.
1. The evidence was sufficient to warrant appellant’s convictions of aggravated witness tampering and witness tampering.
When evaluating sufficiency-of-the-evidence claims, we review the record to determine whether the evidence, taken in the light most favorable to the conviction, is sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We apply the same standard of review in evaluating a sufficiency-of-the-evidence claim arising out of a trial to a jury or to the court. State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Witness tampering is a specific-intent offense. Minn. Stat. § 609.02, subd. 9(3) (1998) (inclusion of the word “intentionally” in a statute indicates that the crime is a specific-intent offense). Therefore,
for a conviction requiring specific intent to stand, such intent must be the only reasonable inference when the evidence as a whole is viewed in the light most favorable to the state.
State v. Collins, 580 N.W.2d 36, 44 (Minn. App. 1998) (citation omitted), review denied (Minn. July 16, 1998). “[P]ossibilities of innocence do not require reversal of a * * * verdict so long as the evidence taken as a whole makes such theories seem unreasonable.” State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997) (quotation omitted).
Minnesota law defines first-degree tampering with a witness as conduct that
intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding, or inquiry authorized by law.
Minn. Stat. § 609.498, subd. 1(a) (1998). With respect to aggravated first-degree tampering with a witness,
[a] person is guilty of [this offense] if the person causes or, by means of an implicit or explicit credible threat, threatens to cause great bodily harm or death to another in the course of committing any of the following acts intentionally:
(1) preventing or dissuading or attempting to prevent or dissuade a person who is or may become a witness from attending or testifying at any criminal trial or proceeding.
Minn. Stat. § 609.498, subd. 1b(a) (1998). Appellant argues that the record indicates that he merely wanted to deter Gunderson from committing perjury on the stand and that he lacked the specific intent of preventing Gunderson from testifying.
But, based on this record, the trial court reasonably inferred that appellant had the specific intent to keep Gunderson from testifying. The trial court noted that appellant’s version of events surrounding his wife’s case differed from Gunderson’s. The court found that appellant would believe that Gunderson was lying if Gunderson testified consistently with his report. Therefore, the trial court found that Gunderson properly interpreted appellant’s statements not as a warning against perjury, but as a warning against testifying. The circumstances surrounding appellant’s statement also give rise to a reasonable inference that appellant’s intent was to keep Gunderson from testifying. Appellant has a history of assaultive behavior against police officers; appellant was tense, angry, and intoxicated when he made the statements; and appellant placed Gunderson in fear. Instilling fear is a means of dissuading someone from testifying. Viewed in its totality, the trial court’s conclusion that appellant intended to deter Gunderson from testifying is reasonable and supported by the evidence.
2. Appellant’s pro se brief does not present grounds for a new trial.
Appellant’s pro se brief presents a variety of arguments in support of his request for a new trial. Appellant alleges that the trial court was biased against him, Gunderson was biased against him, his statements to Gunderson were constitutionally protected free speech, and his counsel provided him with ineffective representation by failing to call several witnesses on his behalf. None of these arguments have merit. Appellant did not raise the issues of bias or free speech in the trial court and, therefore, may not raise them on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Regarding appellant’s ineffective-assistance-of-counsel argument, the record plainly indicates that appellant personally waived his right to call additional witnesses on his behalf.