This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Helen Mae Malenke,
Filed August 8, 2006
Hennepin County District Court
File No. 05010241
Steven M. Tallen,
Tallen and Baertschi, 4560 IDS Center,
Glenn P. Bruder, Mitchell, Bruder & Johnson, 4005 West 65th Street, Suite 110, Edina, MN 55435 (for appellant)
Considered and decided by Minge, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.
In this appeal from a conviction of violating a harassment restraining order, appellant argues that the evidence was insufficient to support the conviction, that the district court erred in ruling inadmissible reverse-Spreigl evidence, and that she was denied the effective assistance of counsel. We affirm.
Appellant Helen Mae Malenke and her husband Myron Malenke have been neighbors to Susan and Matthew Aspelund for approximately 13 years. On February 28, 2003, the district court issued a restraining order against the Malenkes restraining them from any repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of Susan Aspelund. The restraining order also prohibited the Malenkes from contacting Susan Aspelund in person, by telephone, or by other means or persons, and remained in effect until February 25, 2005.
On November 23, 2004, Matthew Aspelund reported to police that at approximately 6:45 a.m. he heard a banging noise, looked outside and saw appellant banging on a plastic bucket with an object she was holding in her hand. Appellant was charged by complaint with misdemeanor violation of a harassment restraining order in violation of Minn. Stat. § 609.748, subd. 6 (2004).
At appellant’s court trial, Susan Aspelund testified that the noise she heard on November 23 was the sound of banging on a bucket, a sound she had heard on numerous occasions. She also heard appellant’s patio door open and close, but she did not see appellant. Matthew Aspelund testified that when he heard the banging at approximately 6:15 or 6:30 a.m., he went outside and saw appellant on the deck beating a five gallon bucket six times.
The district court found appellant guilty of violating the restraining order. This appeal followed.
court applies the same standard of review when reviewing a case tried to the
court as when reviewing a jury verdict. State v. Totimeh, 433 N.W.2d 921, 924
(Minn. App. 1988), review denied
(Minn. Feb. 22, 1989). 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 the
light most favorable to the conviction, is sufficient to allow the fact-finder
to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (
court must assume that the fact-finder believed the state’s witnesses and
disbelieved any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (
Appellant was charged with violating a restraining order by banging on a bucket in the early morning hours. The only issue is whether or not the incident of banging on a plastic bucket occurred. Appellant argues that the district court erred in discounting the video from the four surveillance cameras installed on the property. The camera facing the front of the house was the main camera, and the others were activated by a motion detector. The videotape from the morning of November 23, 2004, was submitted into evidence and the district court reviewed it on the record. Although appellant contends that the video from the surveillance camera indicates that no one was on the deck, the district court properly rejected this argument because Myron Malenke admitted that, based on the videotape, there was no way to know if the camera facing the deck was working properly. It is undisputed that the camera on the deck was not activated at any point during the videotape. Therefore, the lack of evidence of someone on the deck in the video is not conclusive because it is uncertain that had someone been on the deck, the video camera would have activated and recorded the event.
presented testimony from a neighbor who lives on the opposite side of the
Aspelunds. The neighbor testified that
he has never heard any pounding noises coming from the Malenkes’ home. Appellant maintains that she was sleeping at
the time the Aspelunds allegedly heard the banging noise. The Aspelunds testified that they heard the
banging, and Matthew Aspelund testified that he saw appellant on the deck that
morning banging on the bucket. The
district court believed the Aspelund’s testimony and disbelieved
appellant. This court defers to the
fact-finder’s determinations regarding the weight and credibility of individual
witnesses. State v. Miles, 585 N.W.2d 368, 373 (
argues that Matthew Aspelund’s testimony was inconsistent with his report to
the police. The complaint notes that
Matthew Aspelund heard the banging at 6:45 a.m., but he testified that he heard
the noise at 6:15 or 6:30 a.m. Inconsistencies
in the testimony of the state’s witnesses do not require reversal.
courts review evidentiary rulings on appeal, such as the exclusion of reverse-Spreigl evidence, for an abuse of
discretion. State v. Profit, 591 N.W.2d 451, 463 (
appellant argues that the district court erred in requiring notice of reverse-Spreigl evidence. “Spreigl”
is Minnesota’s label for evidence of other crimes, wrongs, or acts offered for
a relevant, noncharacter purpose, under Minn. R. Evid. 404(b). See
State v. Spreigl, 272
Appellant sought to introduce evidence of the Aspelunds’ allegations against another neighbor to show their willingness to make false allegations to the police, and evidence of charges the Aspelunds brought against her husband. However, appellant failed to provide notice as required. Appellant relies on Minn. R. Crim. P. 7.02 to argue that the prosecutor is required to provide notice to bring in Spreigl evidence, but the rule does not mention reverse-Spreigl evidence or any defense obligation. Appellant does not cite to any cases to support this argument. In Profit, the supreme court noted that “the defense’s burden in introducing reverse-Spreigl evidence should be no less than the state’s burden in introducing Spreigl evidence.” 591 N.W.2d at 464 n.3. Thus, reverse-Spreigl evidence requires the same level of procedural protections as Spreigl evidence. Moreover, appellant’s reasons for admitting evidence that the Aspelunds also complained to the police about others do not appear to meet the standards of reverse-Spreigl.
Ineffective Assistance of Counsel
ineffective assistance of counsel, appellant “must affirmatively prove that [her]
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 proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Gates v. State, 398
N.W.2d 558, 561 (
argues that trial counsel erred in failing to question the veracity of the
Aspelunds and failed to rebut critical testimony given by Matthew Aspelund that
he saw appellant on her deck at 6:15 or 6:30 a.m. Appellant contends that trial counsel erred
in failing to show that the shrubs around the deck made it improbable that if
appellant had been on the deck she would have been visible. Appellant also argues that trial counsel
failed to show that, according to astronomical data, sunrise in Minneapolis on
November 23, 2004 occurred at 7:22 a.m.; thus, appellant could not have been
seen on the deck. Generally, appellate
courts give particular deference to counsel’s decisions regarding trial strategy.
v. Lahue, 585 N.W.2d 785, 789 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.