This opinion will be unpublished and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

A03-1700

A03-1819

A03-1820

 

Craig R. Doering,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­­­September 14, 2004

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Hennepin County District Court

File No. 00016075 (A03-1700)

Ramsey County District Court

File No. K4-99-1063 (A03-1819)

File No. T4-99-611478 (A03-1820)

 

Craig R. Doering, 2355 Fairview Avenue, Suite 155, Roseville, MN 55113 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan E. Gaertner, Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315,   St. Paul, MN 55102-1657; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

STONEBURNER, Judge

 

            In this consolidated appeal, appellant Craig R. Doering challenges the denial of three petitions for post-conviction relief.  Because the district court abused its discretion by dismissing the petition in appeal A03-1820 as untimely, we reverse and remand for consideration on the merits.  Because the district court did not abuse its discretion by denying the petitions in appeals A03-1700 and A03-1819 on the merits, without evidentiary hearings, we affirm.

FACTS

 

            Appellant stalked and harassed twin sisters whom he met when the twins worked as bartenders and servers at a Roseville restaurant in the fall of 1996.  On February 12, 1999, the twins reported to the police that appellant had been following them in his silver Mazda.  Appellant failed to stop when police attempted to pull him over.  As a result of this incident, on April 13, 1999, appellant was charged with felony fleeing a police officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (1998).  On April 16, 1999, appellant made his first appearance in court on the fleeing charge and the district court issued an order prohibiting appellant from having any contact, direct or indirect, with the twins.

            On March 15, 1999, the victims obtained, by default, a harassment restraining order against appellant under Minn. Stat. § 609.748, subd. 1 (1998).  Appellant, who claims he was not given notice of the petition or hearing and was not served with the restraining order until April 23, 1999, was charged with violating the retraining order by going to the victims’ place of employment on March 24.

            According to appellant, his attorney believed that a no-contact order was in effect on March 24, and advised appellant that, because the state could charge him with violation of the no-contact order resulting in his immediate arrest, appellant should plead guilty to the charge of violating the restraining order, despite having a defense of lack of service.  Appellant accepted this advice and, on June 17, 1999, appeared with counsel in district court and entered a plea of guilty to misdemeanor violation of the restraining order. 

            Although the original district court file in this case has been destroyed, much of the file has been reconstructed, including a copy of appellant’s written petition to enter a plea of guilty under Minn. R. Crim. P. 15, and a transcript of the plea hearing.  The only plea agreement was that sentencing would be referred to the judge who was handling the fleeing case.  Appellant was eventually sentenced for violation of the restraining order to thirty days in the workhouse, a fine, and one year of probation conditioned on no contact with the victims and obtaining and following a psychological evaluation.

I.          Appeal A03-1820

            By petition for postconviction relief filed February 12, 2003, appellant sought to withdraw his guilty plea to violation of the restraining order.  Petitioner argues that because of ineffective assistance of counsel, who erroneously advised him to waive a viable defense, his plea was not accurate, voluntary and intelligent, constituting a manifest injustice.  The district court denied the petition as untimely.  In appeal A03-1820, appellant challenges dismissal of this petition for postconviction relief.

            On May 21, 1999, appellant appeared in district court with counsel and entered into a plea agreement to resolve the charge of fleeing a police officer in a motor vehicle.  Under the agreement, the state was to file an amended complaint charging appellant with felony pattern of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (1998), and dismiss the charge of fleeing a police officer in a motor vehicle, in exchange for appellant’s plea to the amended charge.[1]  The state also agreed to recommend that appellant be placed on probation, undergo a psychological or psychiatric examination, serve 30 days in jail, and be subject to a no-contact order.

            Although appellant admitted some of the conduct underlying the charge, his plea was in the form of an Alford plea, acknowledging that the state’s evidence was sufficient for a conviction.  On the record, the district court thoroughly explained what an Alford plea is, and that such a plea is treated exactly as if appellant admitted all of the elements of the offense charged.  Appellant pleaded guilty to the amended charge of pattern of harassing conduct under Minn. Stat. § 609.749, subd. 5, on the record and in a written petition.  In response to questioning, he agreed that a jury would believe the victims’ testimony about what occurred in the February incident and admitted that he left an unwanted message on the victims’ telephone.  Appellant also admitted that the state had evidence that the victims were stalked and that appellant was the stalker.  Appellant agreed that he chose to take advantage of the plea agreement rather than face trial.  The district court accepted the plea, stayed imposition of sentence, and placed appellant on probation for a period not to exceed ten years, subject to standard conditions, including serving 30 days in the workhouse, completing a psychiatric evaluation, and having no contact with the victims.

II.        Appeal A03-1819

            By petition for postconviction relief filed February 12, 2003, appellant sought to withdraw his plea of guilty to harassment, arguing ineffective assistance of counsel, prosecutorial misconduct, that the plea was not knowingly, intelligently or accurately made, and that there was new evidence exculpating appellant.  The postconviction court denied the petition on the merits and as untimely.  In appeal A03-1819, appellant challenges denial of this petition.

III.       Appeal A03-1700

            On February 18, 2000, appellant was charged again with a pattern of harassing conduct, and the complaint was later amended to include a misdemeanor charge of violating the restraining order.  A jury found appellant guilty of both charges.  The district court sentenced appellant to 28 months in prison for the felony harassment conviction, 90 days for violation of the restraining order, and executed a concurrent 18-month sentence for the prior harassment conviction in which sentence had been stayed.

            Appellant, through counsel, filed a notice of appeal in May 2001, but appellant dismissed the appeal and then dismissed his attorney.  By petition for postconviction relief filed June 25, 2003, appellant requested a new trial on the February 2000 charges of harassment and violation of a restraining order, alleging ineffective assistance of counsel, prosecutorial misconduct, false testimony by state witnesses, and denial of the right to be present for all stages of trial.  The district court denied the petition on the merits without an evidentiary hearing.  In appeal A03-1700, appellant challenges denial of this petition.

This court consolidated the appeals.

D E C I S I O N

 

Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court will not disturb the decisions of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The scope of review is limited to determining whether there is sufficient evidence in the record to support the findings of the postconviction court.  Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).

I.          Appeal A03-1820

            The district court relied on Minn. R. Crim. P. 15.05, under which a district court “shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof . . . that withdrawal is necessary to correct a manifest injustice,” to conclude that appellant’s petition for postconviction relief, in which he sought to withdraw his guilty plea to violation of a restraining order, was untimely.  But appellant did not bring a motion under the rules of criminal procedure, he petitioned for postconviction relief under Minn. Stat.  §§ 590.01–06 (2002).  “Timeliness is not required by the postconviction statute, although it is a factor to be considered when determining whether relief should be granted.”  Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998), review denied (Minn. July 16, 1998).

            “Although there may be extreme cases in which an excessive delay, without excuse, may alone justify denial of postconviction relief . . . we again emphasize that convicted defendants are generally entitled to at least one right of review.”  Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996) (citation omitted).  Because we conclude that the district court abused its discretion by denying appellant’s postconviction petition solely on the basis of untimeliness under Minn. R. Crim. P. 15.05, we reverse the district court’s denial of the petition and remand to the postconviction court with instructions to address appellant’s claim of ineffective assistance of trial counsel on the merits using timeliness as only one of the factors to be considered.

II.        Appeal A03-1819

            For the reasons stated above, the district court’s decision that appellant’s petition for postconviction relief from the 1999 harassment conviction was untimely constitutes an abuse of discretion.  But the error in this case is harmless because the district court also addressed the merits of the petition.  See Sykes, 578 N.W.2d at 814.   

            a.         Ineffective assistance of counsel

            Appellant first argues that his guilty plea to the charge of felony pattern of harassment was involuntary and unintelligent because he received ineffective assistance of counsel.  A claim of ineffective assistance of counsel requires a defendant to show: (1) that defense counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  There is a strong presumption that counsel’s performance fell within the wide range of reasonable assistance.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  A defendant seeking to withdraw a guilty plea must show that, absent defense counsel’s errors, the defendant would not have pleaded guilty and would have insisted on a trial.  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).

            Appellant claims that defense counsel was ineffective by misinforming him of the elements required to prove a pattern of harassment, and by diluting the specific intent requirement.  A pattern of harassing conduct is defined as “two or more acts within a five-year period that violate” 12 listed provisions, including harassment under section 609.749 (defining harassment as conduct that causes the victim to feel frightened, threatened, oppressed, prosecuted, or intimidated), and obscene or harassing phone calls under section 609.79.  Minn. Stat. § 609.749, subd. 5(b) (1998).  Appellant argues that counsel failed to advise him of the specific intent requirement under section 609.79, and that his phone message left on the victims’ answering machine was insufficient to satisfy this element.  But appellant ignores the fact that his message could also be characterized as harassment under section 609.749, which does not include a specific intent requirement.  See Minn. Stat. § 609.749, subd. 1(a) (1998).  Therefore, counsel did not misinform appellant.

            Appellant asserts that counsel failed to show him the anonymous letters he was accused of sending and that, after viewing the letters, he believes someone else was responsible for them.  But appellant entered an Alford plea, under which he admitted that the state’s evidence was sufficient to support a conviction.  See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (discussing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)).  At the plea hearing, appellant acknowledged that a jury could reasonably convict him based on the state’s evidence.  Therefore, appellant’s current assertion that he was not responsible for the letters is not relevant to the accuracy of his plea.

            Appellant also asserts that counsel failed to show him police reports allegedly included in discovery, and claims that he later discovered there were not “a number of reports” on file.  But the “reports” discussed during plea-hearing questioning referred to the victims’ anticipated testimony that they had reported to the police numerous times that a silver Mazda was following them.  The record does not imply that these reports resulted in documents that were filed at the police department.  Appellant’s argument concerning these reports is without merit.

            Appellant asserts that counsel misled him into believing he had been charged with fleeing a police officer and harassment, when the original charge was only fleeing.  But the record indicates that appellant would have faced both charges if he had proceeded to trial.  At the plea hearing, the prosecutor informed the district court that he had provided appellant’s counsel with a proposed amendment to include a charge of pattern of harassment.

            Appellant asserts that defense counsel also misled him into believing that he would only serve two years of probation under the stay of imposition for the harassment charge before the charge would be reduced to a misdemeanor.  And appellant argues that he would only have received three years of probation for a conviction of fleeing a police officer.  Appellant, however, was not offered the possibility of pleading only to the fleeing charge and has therefore failed to establish that, even if his counsel gave him erroneous advice about the sentence, the outcome would have been different had appellant gone to trial.

            Appellant relies on a transcript of a telephone conversation he had with counsel after he entered his plea to assert that counsel failed to fulfill an ethical obligation to represent him with the advocacy and skill expected of attorneys.  But this transcript is not part of the postconviction record and cannot be considered.  See Minn. R. Civ. App. P. 110.01 (record on appeal includes the papers filed in the trial court, exhibits, and transcripts of proceedings.).

            Because none of appellant’s assertions meet both prongs of the Strickland test, the postconviction court did not abuse its discretion by finding that appellant did not establish ineffective assistance of counsel.

            b.         Inducement by prosecutor

            Appellant also argues that his guilty plea to felony harassment was involuntary because it was improperly induced by the prosecutor.  A plea may be vacated if inducements by the prosecutor are unfulfilled.  Santobello v. New York, 404 U.S. 257, 261, 92 S. Ct. 495, 498 (1971); State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988).  “[I]f a guilty plea is induced by a government promise, such a promise must be fulfilled or due process is violated.”  State v. Wukawitz, 662 N.W.2d 517, 522 (Minn. 2003).

            Appellant does not assert that the prosecutor improperly induced him to plead guilty with a promise that was not fulfilled, but claims that the prosecutor misrepresented the facts when he stated that the victims had “turned in a number of reports” to the police about his car following them, because no such police reports exist.  But the prosecutor asked appellant if he understood that the victims would testify that they had made numerous reports to the police that a silver Mazda had been following them.  Appellant does not dispute that the victims would have so testified.  Because there was no misrepresentation by the prosecutor, who made no promises in connection with appellant’s guilty plea, the postconviction court did not abuse its discretion in rejecting appellant’s claim of improper inducement.

            c.         Factual basis

            Appellant asserts that his plea to felony harassment was inaccurate because a sufficient factual basis was not established during the plea hearing.  A plea is inaccurate if the court fails to establish an adequate factual basis.  Ecker, 524 N.W.2d at 716.  An adequate factual basis requires “sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty.”  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted).

            Appellant claims that, because an element listed in the amended complaint is factually inaccurate, the factual basis supporting his guilty plea was inadequate.  But defects in a complaint do not cause manifest injustice when the elements of the charged crime are adequately set forth and the defendant acknowledges during questioning that he understands the charge and discussed it with counsel.  State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).  During questioning at the plea hearing, appellant admitted that the victims would testify about at least two incidents of contact with him that they found offensive: (1) that a silver Mazda had been repeatedly following them including the night of February 12, 1999 and (2) that appellant had left an unwanted telephone message on their answering machine.  See Minn. Stat.     § 609.749, subd. 5(b) (stating pattern of harassment means “two or more acts within a five-year period”).  The postconviction court did not abuse its discretion in finding the factual basis adequately supported appellant’s plea.

d.         Newly discovered evidence

            Appellant argues that he was entitled to an evidentiary hearing to prove his newly discovered evidence.  Evidentiary hearings on postconviction petitions are unnecessary where there is no factual dispute and the issues present only questions of law.  Bailey v. State, 414 N.W.2d 503, 505 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).

A petitioner for postconviction relief claiming newly discovered evidence must establish: (1) that the evidence was not known to him or his counsel at the time of [the plea], (2) that his failure to learn of it before [entering the plea] was not due to lack of diligence,  (3) that the evidence is material (or as we may have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal at a [trial] or a result more favorable to the petitioner.

State v. Rhodes, 657 N.W.2d 823, 845 (Minn. 2003) (quotation omitted).  Appellant claims that he has a recorded conversation with his probation agent in which the agent tells him that a third party admitted to the agent to giving one of the victims one of the anonymous letters and the agent states he would be willing to tell this to a judge.  But this double-hearsay evidence would not be admissible at trial.  The district court did not err by denying an evidentiary hearing after concluding that appellant’s claim of newly discovered evidence is without factual basis.

III.       Appeal A03-1700

            Appellant sought postconviction relief from conviction of harassment and violation of a restraining order in 2000, in the form of a new trial, asserting ineffective assistance of counsel, prosecutorial misconduct and violation of his right to be present at every stage of his trial.

            a.         Ineffective assistance of counsel

            A defendant must prove both 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 trial would have been different.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  A reasonable probability is a probability great enough to undermine confidence in the outcome of the trial.  Gates, 398 N.W.2d at 561.  Counsel’s performance is strongly presumed to fall within the wide range of reasonable professional assistance.  State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998).  Appellant alleges two instances of ineffective assistance of counsel in this case.

            The district court, in a thorough and thoughtful memorandum of law, addressed each of appellant’s claims of ineffective assistance of counsel after correctly stating at length the standard of review on such claims.  We concur with the district court’s analysis that appellant has failed to prove by a preponderance of the evidence that his trial counsel’s performance fell below objective standards of reasonableness.  As the district court notes, counsel challenged the use of Spreigl evidence and was successful in preventing the admission of anonymous letters allegedly sent by appellant to the victims.  The jury was properly instructed on the use of Spreigl evidence.  And the district court correctly found that there is no merit in appellant’s contention that counsel admitted appellant’s guilt in closing argument, because counsel did not concede anything that appellant had not already testified to.  The district court did not abuse its discretion by rejecting appellant’s claim of ineffective assistance of counsel.

            b.         Prosecutorial misconduct

            The district court addressed each of appellant’s four claims of prosecutorial misconduct, concluding that two of them were so meritless as to warrant no discussion.  In this appeal, appellant has briefed only his claims that the prosecutor elicited false testimony and improperly commented on appellant’s post-arrest silence in the Spreigl fleeing incident.

                        1.         Eliciting false testimony

            Appellant asserts that the prosecutor elicited testimony from one of the victims that she immediately called the police when she identified appellant in the Hamline University parking lot in violation of a restraining order, when a police report shows that she actually called the police four days later.  Appellant also claims that a police officer testified that he went to Hamline the same day that the victim saw appellant, but the report indicated that the officer went to Hamline four days later.  The record, however, shows that the victim did not testify that she called the police immediately, and that one officer testified that he went to Hamline on the day the victim saw appellant and another officer testified that he went to Hamline four days later.  The district court correctly found appellant’s claim of eliciting false testimony about the Hamline incident to be without merit.

            Appellant also asserts that the prosecutor elicited false testimony about the number of times the victims reported to the police having seen appellant’s car, because appellant’s later examination of written police reports did not refer to any such reports.  We agree with the district court’s assessment that this claim of eliciting false testimony is without merit.

                        2.         Prosecutor’s comments

            Appellant’s allegation that the prosecutor made comments on his post-arrest silence is based on cross-examination of appellant by the prosecutor concerning the Spreigl incident that led to his first conviction for harassment  The questioning had to do with the reason appellant was taken to the hospital after the incident.  The prosecutor’s questions attempted to elicit testimony that appellant was taken to the hospital because, as he was being transported to the police station, he “suddenly became non-communicative,” was “unresponsive” and “stopped talking to anybody.”  Appellant’s testimony was that he was taken to the hospital because “I got the crap kicked out of me.”  Appellant’s counsel did not object to the questions except on the basis of “asked and answered” when the prosecutor asked a second time about the reason appellant was taken to the hospital.

            Where a defendant fails to object to questioning, our review is under the plain error standard.  Minn. R. Crim. P. 31.02; State v. Johnson, 672 N.W.2d 235, 239-40 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004).  “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and, (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  “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.”  Id. (quotation omitted).

            We agree with the district court’s analysis that the line of questioning was not an impermissible comment on appellant’s exercise of his right to be silent, and further agree that because the questions involved a Spreigl incident, there is no possibility that the verdict in this case was affected.  Appellant has failed to establish that the prosecutor’s questions constituted misconduct.

            Appellant has failed to brief any other claimed incidents of prosecutorial misconduct.  Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  We note, however, from our thorough review of the record, that the district court did not abuse its discretion by concluding that all of appellant’s claims of prosecutorial misconduct are without merit.

c.         Right to be present at all stages of trial

            During jury deliberations, the district court, with consent of both counsel but without appellant’s personal consent, made two written responses to questions from the jury.  The district court candidly admits that its decision to respond in this manner was error.  See Minn. R. Crim. P. 26.03, subd. 1(1) (providing that, with exceptions not at issue in this case, defendant shall be present at every stage of trial); State v. Sessions, 621 N.W.2d 751, 755-56 (Minn. 2001) (stating that generally any communications between the court and jury after deliberations have begun should take place in open court and in defendant’s presence.); State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993) (stating that right to be present during a stage of trial is a personal one that only defendant can waive).

            When a defendant is wrongly denied the right to be present at a stage of trial, a new trial is required unless the error was harmless beyond a reasonable doubt.  Sessions, 621 N.W.2d at 756; State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994) (stating a defendant is not entitled to relief if the error was harmless beyond a reasonable doubt).  “The test to determine if the communication was prejudicial is ‘whether or not the error affected the result; if it did not, it is not reversible error.’” Id. (citing State v. Shifsky, 243 Minn. 533, 544, 69 N.W.2d 89, 96 (1955)).  To determine whether such error was harmless, “the court may consider the nature or substance of the communication in addition to the fact that it was ex parte.”  Id. (citing Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 2095 (1975)).  On appeal, the reviewing court must examine “all relevant factors” to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.  State v. Petrich, 494 N.W.2d 298, 300 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993).

            The record contains only one written question from the jury: “can we view the evidence of the case (1) black calender [sic] (Craig’s mom) (2) photocopies of exhibit #5, 6, 7”.  The record contains two written responses from the district court, made with consent of counsel.  One response from the district court states: “I have received your questions.  First, all of the evidence that was admitted in this trial has been provided to you.  Second, if you cannot reach a verdict by 4:00 p.m. we will adjourn to accommodate your schedules.”  The other states:  “The fifth element of CrimJig 13.58 requires that you find that the defendant’s acts took place on or about January 20 and February 12.  A pattern of harassing conduct means two or more criminal acts within a five-year period.  Each act must be proven beyond a reasonable doubt.”[2]

            The district court may give additional instructions to a jury after it has begun deliberations.  Minn. R. Crim. P. 26.03, subd. 19(3); Kelley, 517 N.W.2d at 908-09.  Appellant’s only specific objections to the court’s communication are (1) the use of “on or about” rather than “on” the dates specified, and (2) that the answer did not adequately address the question posed.  We find the first objection without merit and we are unable to analyze the second objection because the question is not in the record provided to this court.  The district court concluded that its error was harmless “when considering that the jury had made their conclusions prior to the question being dispatched, that the question pertained to the Spreigl offenses, which didn’t comprise any elements of the charged offense and that therefore it could not have played a significant role in the verdict.”  Due to an inadequate record, we are unable to analyze the district court’s reasoning.  Because there is no indication in the record, or in appellant’s subsequent investigation into the circumstances surrounding the question, we cannot reach into the minds of the jurors and divine the effect the response had on the jurors.

In addition to examining the context of the judge-jury communication, however, we must also examine the strength of the evidence against appellant.  State v. Hendry, 636 N.W.2d 158, 168 (Minn. App. 2001), review denied (Minn. Jan. 29, 2002).  After examination of the record as a whole, we conclude that the state’s evidence, including the Spreigl evidence, was strong.  Because there is no evidence in the record that would lead us to conclude that the court’s response, which was approved by counsel, played a significant role in the verdict and because the state’s evidence in this case was strong, we conclude that the district court’s error is harmless and the verdict is surely unattributable to the error.  The district court did not abuse its discretion by denying postconviction relief based on its communication with the jury without appellant’s presence.

d.         Insufficient evidence

            Appellant argues that the evidence was insufficient to support the verdict.[3]  In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            As noted above, we have thoroughly reviewed the record and have concluded that the state’s case was strong.  The victims’ testimonies provided direct evidence of the offenses charged, and circumstantial evidence supported their testimony.  Appellant’s primary argument is that the state’s witnesses were not credible, but the jury was in the best position to evaluate witness credibility and weigh the evidence.  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).  There is ample evidence in the record to support the verdict.

            Affirmed in part, reversed in part, and remanded.



[1] The amended complaint was filed on June 3, 1999.

 

[2] There is no record of the question that elicited this response.  Appellant asserted in his memorandum supporting his petition for postconviction relief that his attorney told him that the jury asked whether it had to find him guilty on both allegations in order to convict on count one of the charge.

[3] Appellant did not raise this issue in his petition for postconviction relief, but the issue was preserved when appellant’s direct appeal was dismissed by an “order [that] shall not preclude a later appeal from the postconviction order and shall not limit the issues that may be raised in that appeal.”  See State v. Steele, 449 N.W.2d 157 (Minn. 1989) (allowing review of issues where appeal is dismissed without prejudice).