This opinion will be unpublished and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,
Danelle Marie Olson,
Filed July 20, 2004
Clay County District Court
File No. K3-03-87
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Jodie Lee Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
James T. Diamond, Jr., Special Assistant State Public Defender, 44 Montgomery Street, Suite 3830, San Francisco, CA 94194 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
Following a jury trial, appellant Danielle Marie Olson was acquitted of one count of first-degree controlled substance crime (sale of methamphetamine), but convicted of one count of first-degree controlled substance crime (possession) and two counts of aiding and abetting first-degree controlled substance crime. Appellant urges this court to reverse her conviction, arguing that she was denied effective assistance of counsel when her trial attorney elicited testimony concerning appellant’s morals and bad character, and argued to the jury that appellant was a “meth whore” who traded sexual favors for drugs.
Based on the record before us, we conclude that appellant’s counsel employed a reasonable trial strategy, in which appellant acquiesced, designed to negate the allegation that appellant possessed or sold drugs. We therefore affirm.
This court reviews claims of ineffective assistance of counsel de novo, as a mixed question of law and fact. Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004). A person asserting ineffective assistance of counsel must prove (1) that counsel’s assistance was so deficient that it failed to meet the standard of a reasonably competent criminal defense attorney; and (2) but for counsel’s incompetence or errors, there is a “reasonable probability” that the result of the proceeding would have been different. State v. Smith, 476 N.W.2d 511, 514 (Minn. 1991) (quotation omitted).
The appellate court assesses counsel’s competence using an objective standard of reasonableness. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Generally, matters involving trial tactics, including defenses to be raised at trial and which witnesses to call, lie within trial counsel’s discretion and are not reviewed for competence. Id. The reviewing court must consider the totality of evidence and must avoid relying on hindsight when evaluating the effectiveness of trial tactics. State v. Bergerson, 671 N.W.2d 197, 205 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).
Appellant asserts that her attorney pursued an unreasonable trial strategy. Appellant’s counsel introduced evidence of her drug usage, referred to her as a “meth whore,” elicited testimony that she traded sexual favors for drugs, and attacked her lack of morals, employment, mothering skills, and character. Appellant argues that at the close of the state’s case, none of this evidence was before the jury and that counsel’s choice to present it to the jury unreasonably prejudiced her.
The transcript reveals that appellant’s counsel sought to portray appellant as a drug addict, with no money to acquire and thus possess drugs, and without the business acumen to be a drug dealer. This strategy appeared to be an attempt to negate key elements of the state’s case, which was to prove that appellant constructively possessed the drugs discovered in her motel room, either for her own use or for sale. To show constructive possession, the state had to demonstrate a strong probability that appellant was consciously exercising dominion and control over the drugs. Comm’r of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992). This is a “fact driven” analysis. Id. Proximity is an important consideration and constructive possession need not be exclusive, but may be shared with others. State v. Smith, 619 N.W. 2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). Thus appellant’s counsel had to show that appellant was not exercising dominion and control over the drugs, or sharing possession of the drugs with her companion. This strategy has successfully negated allegations of constructive possession in other cases. See Fort, 479 N.W.2d at 47. Under the facts of this case, we conclude this was a reasonable trial strategy and we decline to second-guess trial counsel.
Further, based on the record, appellant acquiesced in this strategy. Generally, defense counsel may not concede a defendant’s guilt without the defendant’s consent. State v. Jorgensen, 660 N.W.2d 127, 132 (Minn. 2003). Although defense counsel here did not concede guilt, except perhaps to a lesser charge of possession, the Jorgensen analysis is appropriate. If defense counsel admits a defendant’s guilt without his or her consent, counsel’s performance is deficient and prejudice is presumed. Id. If the defendant permits counsel to concede his or her guilt throughout trial without objecting, however, the defendant acquiesces in the concession. Id. “We have also held that the defendant acquiesces when admitting guilt was an understandable strategy, and the defendant was present at the time the concessions were made and admits that he understood that his guilt was being conceded, but did not object.” Id. at 133 (quotation omitted). Here, appellant permitted counsel to execute this strategy without objection; the fact that the jury acquitted appellant of first-degree sale of methamphetamine suggests that counsel’s strategy was at least partially successful.
We therefore conclude that the trial strategy pursued by appellant’s counsel was reasonable within counsel’s discretion, and that appellant received representation that meets the standard of a reasonably competent criminal defense attorney.