This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Sherburne County District Court
File No. K104136
John M. Stuart,
Mark D. Nyvold, Assistant Public Defender, Suite
Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
David E. Schauer, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of third-degree
assault and terroristic threats, arguing that (1) he was denied the right to
present a defense by the exclusion of evidence that his girlfriend, whom he
claimed to have assaulted in self-defense, was pregnant with his child; (2) the
district court erred in failing to instruct the jury sua sponte that self-defense
applied to the terroristic-threats charge as well as to the assault charge; (3)
the district court incorrectly deprived him of the right to represent himself
at sentencing; and (4) the upward sentencing departure violated his
constitutional right to a jury trial. In
a pro se supplemental brief, appellant argues ineffective assistance of counsel
and insufficiency of the evidence.
Because any error in excluding testimony of the victim’s pregnancy was
harmless, the district court did not err in jury instructions, appellant waived
his right to pursue self-representation at sentencing, and appellant’s
arguments of ineffective assistance of counsel and insufficiency of evidence
are without merit, we affirm the convictions.
Because sentencing violated Blakely
Appellant; his girlfriend, Renee Geshick; his girlfriend’s
sister, Carol Geshick; Carol’s ex-boyfriend, Craig Person; and the Geshicks’
cousin, Charles Hanks, indulged in a night of drinking that began on a trip
Appellant’s aunt, Lou Ann Jackson, and her boyfriend,
Chuck Phillips, lived with appellant and were sleeping when the group
arrived. They left when they heard
raised voices, but Lou Ann Jackson testified that as she was leaving she saw
Renee Geshick run at appellant and try to hit him at least three times,
screaming and yelling something about “the native mob.”
Appellant testified that after he kicked Renee Geshick, he told her to stay down because he was afraid that she would try to hold him down while the others attacked him. He testified that Carol Geshick and Hanks had verbally threatened him during the evening.
Eventually, appellant took some money out of Renee Geshick’s purse and told everyone to leave. Carol Geshick and Renee Geshick went to the neighbor’s house to call 911. Hanks and Person left appellant’s residence, and appellant also left.
Appellant was charged with second-degree assault, third-degree assault, and terroristic threats. Before trial, the state moved to exclude any testimony that Renee Geshick was pregnant with appellant’s child at the time of the assault, arguing that evidence of the pregnancy was not relevant to the issue of whether an assault occurred and was prejudicial. Appellant opposed the motion, contending that as part of his self-defense theory he would argue that because he knew Renee Geshick was carrying his child, he would not have done anything to harm her or the child unless he feared for his own safety. The district court excluded the evidence of Renee Geshick’s pregnancy as not relevant to proving “whether or not an assault occurred.” At trial, appellant testified twice that Renee Geshick was pregnant with his child, but the district court sustained the state’s objection each time and ordered the jury to disregard the testimony.
The jury was instructed on self-defense in connection with the assault against Renee Geshick. During deliberations the jury asked if self-defense applied only to the assault on Renee Geshick or to all three charges. The district court, with approval of both counsel, answered that it was up to the jury to review all of the jury instructions and determine their application to the facts. The jury acquitted appellant of second-degree assault and found him guilty of third-degree assault against Renee Geshick and terroristic threats.
After the trial but before sentencing, appellant filed a post-trial petition to proceed pro se, waiving his right to a public defender. Appellant also filed two pro se motions for a new trial. At a post-trial hearing, the district court addressed new criminal charges against appellant and briefly addressed appellant’s petition to proceed pro se and his new-trial motions. During this hearing, appellant was removed from the courtroom prior to the district court’s ruling on these issues due to appellant’s use of profanities and insults directed to the district court. At his later sentencing hearing, appellant did not refer to or renew his request to represent himself, and his attorney argued for imposition of the presumptive sentence. The district court denied appellant’s new-trial motions as untimely and granted the prosecution’s motion for an upward durational sentencing departure based on its findings that Renee Geshick was particularly vulnerable and that the assault was committed with particular cruelty. The district court sentenced appellant to 45 months for the assault, a 30-month upward durational departure from the presumptive guidelines sentence. This appeal followed.
I. Exclusion of evidence of victim’s pregnancy
Under the due process clauses of the Fourteenth Amendment
to the United States Constitution and Article I, section 7 of the Minnesota
Constitution, every criminal defendant has the right to be afforded a
meaningful opportunity to present a complete defense. State
v. Richards, 495 N.W.2d 187, 191 (
Appellant sought to present evidence that Renee Geshick was pregnant with his child at the time of the assault to bolster his claim of self-defense, based on his assertion that, knowing she was pregnant with his child, he would only have assaulted her in self-defense. The district court held that the pregnancy was not relevant to whether or not an assault occurred.
Relevant evidence is evidence that has any tendency to
make the existence of any fact of consequence to the determination of the
action more probable or less probable than it would be without the
The elements of self-defense are: (1) an absence of aggression or provocation
on the part of the defendant; (2) defendant’s actual and honest belief that
imminent death or great bodily harm would result; (3) a reasonable basis for
this belief; and (4) an absence of reasonable means to retreat or otherwise
avoid the physical conflict. State v.
Basting, 572 N.W.2d 281, 285 (
At issue in this case were the questions of who was the aggressor, whether appellant had a reasonable belief in the need to repel an assault by Geshick with force, how much force he actually used, and whether the amount of force appellant used was reasonable. We conclude that evidence of Renee Geshick’s pregnancy had some probative value because it may have affected the jury’s view of who was the aggressor and what appellant reasonablybelieved about the need to use force and the amount of force to use. See State v. Carlson, 268 N.W.2d 553, 559 (Minn. 1978) (stating that evidence is relevant and has probative value when it, in some degree, advances the inquiry); State v. Upson, 162 Minn. 9, 12-13, 201 N.W. 913, 914 (1925) (stating that a fact is relevant if it warrants a jury in drawing a logical inference assisting, even if remotely, the determination of the issue in question).
Even if evidence is logically relevant, however, Minn. R.
Evid. 403 permits the exclusion of evidence that the district court finds is
substantially more prejudicial than probative.
Prejudice has been defined as “the unfair advantage that results from
the capacity of the evidence to persuade by illegitimate means.” State
v. Townsend, 546 N.W.2d 292, 296 (
The party claiming the court erred in admitting evidence
has the burden of showing error and any resulting prejudice.
In this case, the jury found appellant guilty of third-degree assault against Renee Geshick. The jury, therefore, must have believed that the state disproved appellant’s claim of self-defense by disproving one of the four elements of self-defense. There was some dispute about whether Renee Geshick was the aggressor, and there was a great deal of evidence that appellant repeatedly kicked Renee Geshick, causing multiple facial fractures, even after Renee Geshick was on the floor unconscious. Based on the record as a whole, we conclude that overwhelming evidence established, at a minimum, that the level of force appellant used was unreasonable, defeating his claim of self-defense, and that exclusion of evidence of Renee Geshick’s pregnancy was harmless beyond a reasonable doubt.
II Jury instruction
Appellant argues that the
district court committed plain error in not sua sponte instructing the jury
that self-defense applied to the charge of terroristic threats. Generally, a defendant’s failure to object to
jury instructions before they are presented to the jury is a waiver of the
right to appeal the instructions. State
v. Cross, 577 N.W.2d 721, 726 (
This court applies the
plain-error test for determining whether unobjected-to errors require reversal,
asking whether the instructions: (1) contain error; (2) that is plain; and (3)
that affects the defendant’s substantial rights. State Griller, 583 N.W.2d 736, 740 (
An instruction is erroneous
if it materially misstates the law. State v. Ihle, 640 N.W.2d 910, 916 (
In State v. Gustafson, the supreme court held it was not error for a
district court to fail to sua sponte give the jury a self-defense instruction
when, although the evidence suggested self-defense could have been raised, the
defendant failed to request a self-defense instruction, failed to object to the
omission of a self-defense instruction, and did not argue self-defense at trial
or suggest reliance on self-defense in questioning witnesses. 610 N.W.2d 314, 320 (
III. Request to proceed pro se at sentencing
The Sixth and Fourteenth Amendments provide criminal
defendants the right to represent themselves in state criminal
proceedings. Faretta v.
When a defendant seeks to represent himself, the district
court must base its decision on: “(1) whether the request is clear,
unequivocal, and timely, and (2) whether the defendant knowingly and
intelligently waives his right to counsel.”
Richards, 456 N.W.2d at 263 (citing Faretta, 422
If a defendant requests to represent himself after the
beginning of trial, however, the right is not as inviolable and the district courts
must balance the right of the defendant against the possibility of disruption
and undue delay. Christian, 657 N.W.2d at 191; see also
In this case, appellant’s request was made days after the verdict was rendered. When the district court attempted to conduct a hearing on appellant’s competency to proceed pro se at sentencing, appellant responded with insulting language and ultimately told the district court it could “piss on” his motions for all he cared. Appellant’s conduct was improper and disruptive and resulted in his being removed from the courtroom. The motion for self-representation was not renewed or reasserted at the time of sentencing, and we conclude that the request was abandoned or waived and the district court did not err by failing to rule on it. Furthermore, appellant presents no authority for his argument that, because his post-trial request to represent himself at sentencing was not granted, his convictions should be reversed.
Appellant argues that the district court’s upward
durational departure warrants reversal because it was based on a fact found by
the court—and not the jury—in violation of Blakely v. Washington, 124
S. Ct. 2531 (2004). Although
appellant was found guilty and sentenced before Blakely was decided, he
is entitled to a review of his sentence in light of Blakely because Blakely announced a new rule of
constitutional criminal procedure while his right to direct appeal was
pending. See O’Meara v. State,
679 N.W.2d 334, 339 (
In Blakely, the
Supreme Court held that the sentencing judge may not impose a sentence greater
than “the maximum sentence [that may be imposed] solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” 124
Appellant’s sentence in this case violated Blakely because the upward departure was based on findings made by the district court rather than by a jury. We therefore reverse the sentence imposed and remand for resentencing in accord with Blakely.
V. Appellant’s pro se supplemental claims
Appellant raises pro se claims of insufficient evidence and ineffective assistance of counsel.
a. Insufficiency of the evidence
In assessing a claim
attacking the sufficiency of evidence, the evidence is viewed in the light most
favorable to the verdict to determine “whether the facts in the record and the
legitimate inferences drawn from them would permit the jury to reasonably conclude
that the defendant was guilty beyond a reasonable doubt of the offense of which
he was convicted.” Davis v. State, 595 N.W.2d 520, 525 (
Appellant claims that “the extent of the injuries sustained by the alleged victim do not show that [he] repeatedly struck or kicked her [therefore] the force used . . . was reasonable under the circumstances.” But Carol Geshick testified that she saw appellant kick Renee Geshick in the face “too many [times] to count.” This is clearly evidence that the jury could have relied on in determining that appellant used unreasonable force under the circumstances.
also contends that Carol Geshick testified that, “Renee went after appellant .
. . .” But this testimony does not
appear in the transcript. Appellant
points to inconsistencies between the version of events Carol Geshick gave to the
police and her in-court testimony. But
the conflicting evidence was for the jury to weigh in making its factual
determination as to who started the violence and whether appellant reacted
reasonably. Inconsistencies in Renee
Geshick’s and Carol Geshick’s versions of the events were heard by the jury,
which obviously resolved credibility issues in favor of the state’s theory of
the case. This court does not interfere
with the fact-finder’s credibility determinations or resolution of conflicting
evidence. See State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (
b. Ineffective assistance of counsel
Generally, an ineffective-assistance-of-counsel claim
should be raised in a postconviction petition for relief, rather than on direct
appeal. See Robinson v. State,
567 N.W.2d 491, 495 & n.3 (
Appellant contends his counsel: (1) failed to effectively cross-examine Carol Geshick and Renee Geshick; (2) lacked familiarity with discovery materials and failed to interview witnesses; (3) failed to seek instruction on “no duty to retreat” in one’s home; (4) elicited “incriminating statements” from appellant on direct examination; (5) failed to seek introduction of “exculpatory” blood-alcohol level, mental-health status, and medical reports showing Renee Geshick’s injuries were pre-existing from her “barroom brawls”; (6) failed to object to the state’s in limine motion; and (7) failed to subpoena two eyewitnesses (presumably Hanks and Person).
bears the burden of proof on his claims of ineffective assistance of counsel. State
v. Lahue, 585 N.W.2d 785, 789 (
assignment of error based on mere assertion and not supported by any argument
or authorities in appellant's brief is waived and will not be considered on
appeal unless prejudicial error is obvious on mere inspection.” Balder v. Haley, 399 N.W.2d 77, 80 (
Affirmed in part, reversed in part, and remanded.
 Appellant had given this money to Renee Geshick earlier in the evening.