This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Phillip R. Clow,
Filed December 9, 2003
Clay County District Court
File No. K7021037
Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, Cassandra O. O’Hern, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, Minnesota 55101-2128; and
Lisa Borgen, Clay County Attorney, P.O. Box 280, Moorhead, Minnesota 56561 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Phillip Ray Clow, Sr., was convicted by a jury of terroristic threats, two counts of assault in the second degree, dangerous weapon, and felon in possession of a handgun. On appeal, Clow seeks a new trial on the grounds that: (1) the trial court’s evidentiary rulings constitute reversible error; (2) his 132-month sentence is excessive; and (3) he received ineffective assistance of counsel because his attorney entered into a stipulation which mentioned his prior felony burglary conviction, rather than a stipulation simply informing the jury that he was not entitled to possess a weapon. In his pro se supplemental brief, Clow asserts a separate ineffective-assistance-of-counsel claim related to his attorney’s failure to object to the admission of “other crimes” evidence, and the jury instructions. We affirm, but preserve Clow’s right to pursue an ineffective-assistance-of-counsel claim in a petition for postconviction relief, solely on the propriety of the burglary conviction stipulation.
“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). Where a defendant fails to object to the admission of evidence, our review is under the plain-error standard. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The plain-error standard requires the defendant show: (1) error, (2) that was plain, and (3) it affected the defendant’s substantial rights. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)). “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotations omitted).
Clow argues that he was denied a fair trial because the trial court admitted evidence that he had been convicted of a crime of violence, and that he had been in jail and prison. Clow also contends that the trial court erred by admitting a taped statement provided by Solis, in which she stated that Clow served time in “blood alley” (referring to a Washington state prison), where he learned to defend himself like an “animal or savage.” In addition, Patricia testified that Clow was also incarcerated in county jail and in Washington state prison. Defense counsel objected to Patricia’s testimony, and the objection was sustained. But Clow contends the trial court erred because it did not immediately instruct the jury, sua sponte, to disregard the evidence. These claims are without merit.
Significantly, defense counsel had the opportunity to redact Solis’s statement before trial, and Clow admits that the parties in fact redacted parts of Solis’s statement prior to playing it for the jury. Apparently, defense counsel did not believe Solis’s comments were unduly prejudicial. With regard to Patricia’s testimony and defense counsel’s sustained objection, defense counsel did not request the answer be stricken or request any curative instruction. We note, however, that in its opening instructions to the jury, the trial court instructed the jury to disregard any question to which an objection was sustained.
Moreover, apart from the references to Clow’s past criminal record or fighting ability, the result would have been the same had the evidence not been admitted. See State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (holding that test for whether evidence was erroneously admitted is “whether there is any reasonable doubt the result would have been different if the evidence had not been admitted”) (citing State v. Naylor, 474 N.W.2d 314, 319-20 (Minn. 1991)). Here, the bulk of the testimony focused on the events occurring in May and June 2002, when Clow made oral threats to Patricia, shot a hole in her ceiling, appeared at her house with a firearm and a can of gasoline, and broke the window on her door. Thus, we conclude that the trial court did not commit plain error by admitting evidence of Clow’s previous incarceration or his fighting ability, and the evidence did not affect Clow’s substantial rights.
Clow urges this court to modify the three consecutive sentences to run concurrently, or modify the consecutive sentences on the assault convictions to run concurrently. Clow notes a district court may, but is not required to, impose consecutive sentences where the offenses involve crimes against persons. Clow further contends the trial court gave no weight to the fact that he never acted on his threats, and also argues that there is a lack of evidence supporting Patricia’s claim of a second assault.
This court will only reverse a district court’s decision to impose the presumptive sentence if the district court abused its discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). A district court’s decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). “A trial judge sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender’s conduct and weigh sentencing options.” Id.
The trial court had the discretion to impose consecutive sentences without departing from the guidelines, as the crimes occurred on different dates and were all separate crimes. Therefore, the only issue is whether Clow’s resulting sentence unfairly exaggerated the criminality of his conduct. See id. at 397. The trial court evaluated Clow’s conduct, noting that Clow’s history is “horrible” and “this whole situation was horrible.” It also appears the trial court weighed the sentencing options, noting that it “wouldn’t be just to have [Clow] serve these [sentences] concurrently.” The trial court’s sentence was within the presumptive range, and the sentence did not exaggerate the criminality of Clow’s conduct here.
In his pro se supplemental brief, Clow first claims his trial counsel was ineffective because his counsel failed to object when the prosecution raised evidence of Clow’s “other crimes” at trial. Clow also argues his counsel was not knowledgeable of the Minnesota Rules of Criminal Procedure, citing his counsel’s failure to object to the jury instructions. Clow contends that his counsel’s errors affected his substantial rights, which deprived him of the right to counsel.
Claims of ineffective assistance are generally raised in a petition for postconviction relief rather than on direct appeal. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But where further development of the record is not required to assess an appellant’s ineffective-assistance claim, an appellate court will review such a claim on direct appeal. See State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999). To prevail, Clow must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). “There 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).
With regard to defense counsel’s failure to object to the instances when Clow’s “other crimes” were raised at trial, no further development of the record is required to assess this claim. See Thomas, 590 N.W.2d at 759. Defense counsel’s failure to make proper objections is not a sufficient basis to find ineffectiveness of counsel. Sanderson v. State, 601 N.W.2d 219, 226 (Minn. App. 1999), review granted (Minn. Jan. 18, 2000) and review denied (Minn. Mar. 28, 2000). Moreover, defense counsel’s decision not to object was a tactical choice, which this court will not review for competence. See Jones, 392 N.W.2d at 236 (“trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight. Counsel must, after all, have the flexibility to represent a client to the fullest extent possible.”); see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that matters of trial strategy will not be reviewed for competence); Morgan v. State, 384 N.W.2d 458, 460 (Minn. 1986) (explaining that trial tactics “are not to be confused with competence”). We see no basis to conclude that defense counsel was ineffective by not objecting to the “other crimes” evidence admitted at trial.
Clow’s second ineffective-assistance claim involves the stipulation concerning Clow’s prior burglary conviction, which specifically mentioned his prior felony burglary conviction, even though current case law permits a defendant to simply stipulate to his ineligible status when the charge is felon in possession of a firearm. See State v. Davidson, 351 N.W.2d 8, 11-12 (Minn. 1984). Here, Clow was charged with felon in possession of a firearm. To present evidence to support the prior-conviction element of that offense, the defense counsel and the prosecutor stipulated to Clow’s conviction, which was read to the jury, and stated that Clow was “convicted of a burglary, which is a felony, and that ten years have not elapsed since he was restored to his civil rights and that the burglary occurred in the state of Washington.” Clow argues that his counsel was ineffective for not seeking the kind of stipulation allowed in Davidson, where the district court instructed the jury that “under Minnesota law [appellant] was not entitled to possess a pistol.” Id. at 12. Respondent counters by noting that defense counsel had ample opportunity to object to the court’s jury instruction, which was based on the joint stipulation. Further, respondent suggests that defense counsel’s agreement to the stipulation was a tactical decision in that he must have believed it was less prejudicial to inform the jury of the exact nature of the conviction than to have the jury speculate on its nature. Respondent posits that a prior “burglary” would sound less culpable to the jury than a prior “crime of violence.”
However, without a more developed record, it is difficult to see what tactical advantage Clow received from a stipulation that highlighted for the jury that Clow had been convicted of a crime of violence, specifically a burglary, and that at the time he possessed the gun, his civil rights were not yet restored. Because the record is not fully developed on this issue, we cannot review this claim on direct appeal. See Gustafson, 610 N.W.2d at 321 (noting that postconviction hearings provide reviewing courts with “additional facts to explain the attorney’s decisions,” enabling courts to properly consider whether an attorney’s performance was deficient).
 This argument was actually raised by Clow’s appellate counsel in appellant’s main brief. There, appellate counsel argued that the trial court committed plain error by accepting the stipulation. Because we find this issue is more appropriately addressed as an ineffective-assistance-of-counsel claim, we have chosen to address it here, along with Clow’s other pro se ineffective-assistance claims.