This opinion will be unpublished and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
Michael Neal Vance,
Dakota County District Court
File No. K4-04-2033
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom,
John Stuart, State Public Defender, Theodore Sampsell-Jones, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of third-degree assault and terroristic threats, appellant argues that the trial court committed plain error in failing to instruct the jury on the definition of assault and failing to instruct on the reasonable use of force to prevent the victim from driving while impaired. In the alternative, appellant argues that his attorney’s failure to request these instructions denied him effective assistance of counsel. Finally, appellant argues that the evidence is insufficient to support the terroristic-threats conviction because the victim, contrary to the prosecutor’s statement in closing argument, did not testify that appellant threatened to kill her on the date charged. We affirm.
As a result of events that occurred on June
19, 2004, appellant Michael Vance was charged with one count of third-degree
assault in violation of Minn. Stat. § 609.223 (2004), and one count of
terroristic threats in violation of
At trial, both appellant and the victim, Cynthia Sobaszkiewicz, testified as to their accounts of the alleged assault. Sobaszkiewicz testified that on the morning of June 19, she and appellant were involved in a verbal altercation that escalated when appellant backhanded her in the mouth. According to Sobaszkiewicz, when appellant went to the kitchen to get some ice for her, she grabbed her purse and headed for the front door. As she was running away from the house, Sobaszkiewicz turned around to see appellant lunging off the front steps toward her. Sobaszkiewicz testified that the next thing she remembers is standing in the bathroom in unbearable pain holding her shoulder.
Sobaszkiewicz testified that after the incident, her friend Bonnie Gisch drove her to the hospital. According to Sobaszkiewicz, she suffered a broken collarbone, bruising on her left temple and right lip, and lacerations on her back as a result of the altercation. When asked why she initially fled the bedroom, Sobaszkiewicz stated that she was scared of appellant. Sobaszkiewicz further testified that she was scared of appellant because he had threatened her on numerous occasions in the past. Although Sobaszkiewicz admitted to having a romantic relationship with appellant in the past, she stated that when appellant moved in with her in March or April of 2004, their relationship was no longer romantic.
Contrary to Sobaszkiewicz’s testimony, appellant testified that Sobaszkiewicz was his girlfriend. Appellant claimed that when he came home from work on June 18, Sobaszkiewicz was locked in the bedroom. Appellant testified that when Sobaszkiewicz came out of the bedroom, he realized that she had been smoking methamphetamine, which led to an argument about Sobaszkiewicz’s drug use. According to appellant, the argument persisted into the early morning hours of June 19, at which time Sobaszkiewicz decided that she wanted to drive to a friend’s house. Appellant stated that although he told Sobaszkiewicz that it was not safe to drive, she eventually ran out the front door. Appellant testified that in an effort to prevent her from driving, he ran after Sobaszkiewicz, and when he reached the front porch step, he jumped at her. According to appellant, Sobaszkiewicz started to stumble, which caused him to fall on top of her. Appellant testified that when he took Sobaszkiewicz inside, he realized that she was badly injured. Appellant claimed that he was going to take her to the hospital, but Gisch and Sobaszkiewicz convinced him to go to work instead and let Gisch take her to the hospital.
The jury returned a guilty verdict on October 25, 2004. Appellant was subsequently sentenced to a term of 24 months, which is the presumptive sentence for third-degree assault, with a criminal-history score of four. This appeal followed.
D E C I S I O N
argues that the district court erred by failing to instruct the jury on the
definition of assault and failed to instruct on the reasonable use of force to
prevent the victim from driving while impaired.
District courts are allowed “considerable latitude” in the
selection of language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (
reflects that appellant failed to
object to the instructions at the time of trial. Generally, “an appellate court will not
consider an alleged error in jury instructions unless the instructions have
been objected to at trial.” Baird, 654 N.W.2d at 113. Nevertheless, even without objection, this
court “could reverse if the instructions were misleading or confusing on fundamental
points of law such as burden of proof and presumption of innocence.” State v.
The district court instructed the jury on the assault count as follows:
asserts that although the district court instructed the jury on the elements of
assault, the court failed to give the 10
To support his claim, appellant cites
State v. Charles, where the
defendant was convicted of felony murder with the predicate felony being
second-degree assault. 634 N.W.2d 425,
This case is distinguishable from Charles because the instructions in Charles
were apparently confusing and inadequate, given the jury’s repeated requests
for clarification of the instructions.
Appellant also contends that because
he claimed that his force was justified by the need to prevent Sobaszkiewicz
from driving while impaired, the district court erred by failing to instruct
the jury on reasonable use of force. But
appellant concedes that he failed to request the reasonable use-of-force
instruction. Generally, a defendant
waives his right to have a claim of failure to give a jury instruction
considered on appeal when he fails “to propose specific jury instructions.” State v. Cross, 577 N.W.2d 721, 726 (
At trial, appellant testified that he jumped at Sobaszkiewicz in order to prevent her from driving while impaired and thereby unintentionally injured her. But other than appellant’s testimony, there is no reference to appellant’s “reasonable-force” defense. During closing arguments, appellant’s trial counsel neglected to refer to appellant’s testimony that he was attempting to prevent Sobaszkiewicz from driving while impaired. Instead, defense counsel argued that Sobaszkiewicz’s injuries were accidental and stressed witness credibility to support the argument. Although a reasonable-force instruction may have been appropriate, appellant did not argue this theory of defense or request the instruction, and the district court did not commit plain error by failing to sua sponte provide the reasonable-force instruction. See Charles, 634 N.W.2d at 433 (stating that although the details of the case suggested that a defense-of-dwelling instruction would have been justified, the district court did not commit plain error by choosing to only instruct the jury on self-defense under CRIMJIG 7.06). We conclude that the district court did not commit plain error in instructing the jury on the third-degree assault charge.
argues that his appointed trial counsel rendered ineffective assistance by
failing to object to the instructions at trial.
Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction hearing
rather than on direct appeal because “[a] postconviction hearing provides the
court with additional facts to explain the attorney’s decisions, so as to
properly consider whether a defense counsel’s performance was deficient.” State v. Gustafson, 610 N.W.2d 314, 321 (
Appellant argues that there is
insufficient evidence to support his conviction of terroristic threats. In considering a claim of insufficient evidence, this
court’s review is limited to a “painstaking analysis of the record to determine
whether the evidence, when viewed in a light most favorable to the conviction,
[is] sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (
The complaint alleged that on or about June 19, 2004, appellant made terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004). A person is guilty of making terroristic threats against another if that person “threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror . . . .” Minn. Stat. § 609.713, subd. 1.
contends that the evidence was insufficient to sustain his conviction of
terroristic threats because there is no evidence that appellant threatened
or about June 19. We disagree. At trial, Officer Patricia Kressley stated that: “I was advised that [Sobaszkiewicz] was receiving phone calls throughout the night from [appellant] threatening her.” When asked what appellant said to threaten Sobaszkiewicz, Officer Kressley replied that “[s]he was afraid that he was going to kill her because she made mention that he may be going to prison because of this.” Additionally, Officer Phillip Oeffling testified that “[Sobaszkiewicz] said that [appellant] threatened to kill her if she reported the incident to our office. And then subsequently she has had conversations with him since he has been in jail that she spoke to me about.” Sobaszkiewicz further testified as to numerous occasions where appellant threatened to kill her, including threatening phone calls she received right after she got home from the hospital.
acknowledges this testimony, but argues that the testimony fails to prove that
the threats occurred on or about June 19.
However, when the statements are read in context with the testimony of
the witnesses, it would be reasonable to find that the testimony concerns
threats that were made on or about June 19/June 20. If believed, the testimony is sufficient to
prove that appellant committed terroristic threats on or about June 19. The jury apparently believed the state’s witnesses
and disbelieved any
contrary evidence. See
State v. Profit, 591 N.W.2d 451, 467 (
that the jury believed the state’s witnesses). Accordingly, there was sufficient evidence for the jury to reasonably conclude that appellant was guilty of terroristic threats.