This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





David Paul Peterson,



Filed December 24, 2002


Kalitowski, Judge


Nicollet County District Court

File No. KX01341


Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Michael K. Riley, Sr., Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent)


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant David Paul Peterson challenges his convictions and sentence for second-degree assault and felon in possession of a firearm, arguing that (1) the prosecutor committed plain error by improperly asking appellant “were they lying” questions during cross-examination; (2) appellant was deprived of the effective assistance of counsel because his attorney did not request an intoxication instruction where there was evidence appellant was drunk, and the assault offense required specific intent; and (3) the district court abused its discretion in imposing a double upward departure based on the career offender statute because appellant’s seven prior convictions did not constitute a “pattern of criminal conduct.”  We affirm.




            Appellant did not object to the allegedly improper questions at trial.  Failure to object ordinarily forfeits a criminal defendant’s right to review.  State v. Coleman, 373 N.W.2d 777, 783 (Minn. 1985).  But a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.  State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994); see also Minn. R. Crim. P. 31.02.  The test for plain error has three parts:  (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 1549 (1997)).  If the three prongs are met, then we assess whether the error needs to be addressed to ensure fairness and the integrity of the judicial proceedings.  Johnson, 520 U.S. at 1469-70, 117 S. Ct. at 1550. 

            Appellant does not meet the three-part test for plain error.  It is not always improper to ask “were they lying” questions because Minnesota has not adopted a blanket rule prohibiting these questions.  See State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999).  Moreover, in situations where the witness “flatly denies the occurrence of events” testified to by other witnesses, “were they lying” questions have probative value.  Id.  And “were they lying” questions also have probative value when evaluating the credibility of a witness who claims that “everyone but the witness lied.”  Id.

            Here, one of the prosecution’s witnesses, Simmons, testified that appellant asked him to testify falsely.  Later, appellant’s attorney asked appellant if he attempted to persuade Simmons to change his story or testify falsely.  Appellant responded, “No, I did not.”  This is a flat denial of the occurrence of an event testified to by another witness, and, therefore, the prosecution’s questions regarding the conflicting testimony of Simmons and appellant were proper.

            Appellant also attacked the credibility of other witnesses for the state.  Appellant testified that he slept at Ms. Schneier’s apartment after February 15, 2001.  So on cross-examination, the prosecution asked appellant whether the people who had testified otherwise were “inaccurate.”  Appellant responded affirmatively.  Thus, because appellant claimed that everyone but appellant was lying, the prosecution’s questions were proper.

            Appellant argues that the defense merely pointed out inconsistencies in the testimony and never argued that the state’s witnesses were lying.  But appellant denied the occurrence of events as related by the state’s witnesses and denied any involvement in the events.  This was enough to open the door to a “credibility contest.”

In a situation where a defendant flatly denies the occurrence of events and his involvement in those events, as testified to by the People’s witnesses in circumstances that exclude the possibility that the prosecution’s witnesses may have been mistaken or testified to events based on assumptions or a faulty memory, the defendant has created a credibility contest.


Pilot, 595 N.W.2d at 517 (quotation omitted).  Thus, the prosecution was also free to ask “were they lying” questions when appellant created a “credibility contest” by denying that he possessed a gun and fired it into the wall on the night in question, in direct conflict with the testimony of the state’s witnesses.

            Because the prosecution’s questions were proper, appellant has not shown plain error.


            In order to show ineffective assistance of counsel, appellant

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.”


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).  To act within an objective standard of reasonableness, defense counsel must exercise the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  And a “reasonable probability” is a probability that is sufficient to “undermine confidence in the outcome.”  Gates, 398 N.W.2d at 561.  Additionally, “[t]here is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). 

            Appellant argues that he was denied effective assistance of counsel because his attorney failed to request a jury instruction on an intoxication defense for the specific-intent crime of second-degree assault.  We disagree.

            Appellant’s counsel’s performance did not fall below an objective standard of reasonableness.  Before an intoxication defense is applicable, a defendant must offer intoxication as an explanation for his actions.  State v. Rainey, 303 Minn. 550, 551, 226 N.W.2d 919, 921 (1975).  But throughout trial, appellant maintained that the events of February 15-16, 2001, as alleged by the prosecution, did not occur.  Appellant testified that he did not possess a gun that night, did not know that there were guns in the apartment, did not fire a gun into the wall, did not see a gun while he was awake that night, and did not touch or handle a .22 caliber pistol or a 9mm pistol.  In light of this testimony, the decision by appellant’s counsel not to risk confusing the jury by raising in the alternative an intoxication defense was a rational, logical decision.  Additionally, appellant’s counsel testified that he researched an intoxication defense and decided not to pursue it because it would have applied only to the assault charge and would not have been a defense to the possession charge.

We conclude that because appellant’s counsel’s representation did not fall below an objective standard of reasonableness, appellant was not denied effective assistance of counsel.


            We will not disturb a district court’s departure from a presumptive sentence absent a clear abuse of discretion.  State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995).  Appellant claims that the district court abused its discretion by sentencing him as a career offender, arguing that his past felonies do not constitute a pattern.  The relevant portion of the statute provides:

Subd. 4. Increased sentence of offender who commits a sixth felony. Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.


Minn. Stat. § 609.1095, subd. 4 (2000). 

            The district court sentenced appellant to 120 months for the felon-in-possession-of-firearm conviction.  This represents a double upward departure from the 60-month mandatory sentence for this crime and is 60 months less than the statutory maximum sentence.  See Minn. Stat. §§ 609.11, subd. 5(b), 624.713, subd. 1(b) (2000).  The district court found the upward departure was appropriate because appellant qualifies as a career offender under the statute.

            Appellant argues that his “disparate criminal convictions” do not amount to a “pattern,” citing State v. Gorman, 546 N.W.2d 5 (Minn. 1996), which indicates that a pattern of criminal conduct is “the organizing principal or relationship binding certain things, in this case incidents of criminal conduct, together.”  Gorman, 546 N.W.2d at 9.  We disagree.

A pattern of criminal conduct may be shown by criminal conduct that is similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.  Id.  Further, a “pattern” is necessary under the statute, but the offenses need not be of a similar type.  Flemino, 529 N.W.2d at 504.  “The [career offender] statute simply targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality.”  Id. at 503. 

            Appellant’s seven felony convictions over a period of 20 years satisfy the statutory requirement of five or more felony convictions.  Moreover, appellant’s multiple convictions for burglary and the previous conviction of unlawful possession of a handgun demonstrate a pattern of violence.  Appellant’s lifestyle has been one of criminality, and he qualifies as a career offender under the statute.  Thus, we conclude the district court did not abuse its discretion by imposing a double upward departure.

            Finally, appellant also submitted a pro se brief raising several issues.  After careful review, we conclude appellant’s claims are without merit.