This opinion will be unpublished and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
Robert Wayne Allers,
Filed August 22, 2006
Otter Tail County District Court
File No. K4-04-1972
Mike Hatch, Attorney General, 1800
David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)
John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
Robert Allers appeals from his convictions of aiding and abetting theft and second-degree assault, arguing that the state failed to adequately rebut his duress defense and that he received ineffective assistance of counsel because his attorney did not obtain, on the record, a waiver of his right to testify. Because we conclude that the state presented sufficient evidence to establish that Allers’s participation in the crimes was not the product of duress and that the absence of an on-the-record waiver of defendant’s right to testify does not amount to ineffective assistance of counsel, we affirm.
F A C T S
A jury found Robert Allers guilty of
aiding and abetting theft and assault for his participation in a series of
events that began at the Purple Palace in Vining, Minnesota, on October 22,
2004. Shortly before the
first man, later identified as Jeremiah Raper, asked to use the bathroom. Within a few minutes, a second man, later
identified as Gordon Bell, approached Whiting and asked for directions. A third man, Robert Allers, entered the
off-sale area to ask Whiting about a vehicle for sale. Allers was a previous
Whiting’s wife saw Raper jump into
the passenger side of a car and noted the direction in which the car was
traveling. Whiting told his wife to call
911, got into his van, and pursued the car in a high-speed chase. When Whiting caught up with the car, he
pulled alongside it. Allers, who was
driving the car, moved it toward the van and forced the van off the road into a
ditch. The car stopped. Raper, swinging a hammer, got out of the
front-seat passenger side and broke one of the van’s windows. Raper then returned to the car, which continued
a short way down the road before pulling over.
After the car stopped, Raper left the car and ran into the nearby
woods. Allers and a second passenger,
Police responding to the 911 call located Whiting and secured the area where the three men had run into the woods. After four hours of searching, they found Raper and Allers walking across a field bordering the woods. They told police that they had friends in the area and were out for a walk. In a later search through the woods, police found cash rolled up into a ball. The Whitings found the deposit bags and checks in a ditch along the roadway.
The state charged Allers with aiding and abetting in the commission of theft and two counts of second-degree assault. Allers did not testify at trial. He relied on the defense of duress and requested that the district court instruct the jury on the defense. The court included the duress instruction in its charge to the jury. The jury returned a guilty verdict on aiding and abetting theft and second-degree assault. Allers appeals arguing that the evidence is insufficient to rebut his duress defense and that he received ineffective assistance of counsel because his attorney did not obtain, on the record, a waiver of Allers’s right to testify.
D E C I S I O N
To establish that a defendant aided and
abetted the commission of a crime, the state must demonstrate “some knowing
role in the commission of the crime by a defendant who takes no steps to thwart
its completion.” State v. Ostrem, 535 N.W.2d 916, 924 (
Aiding and abetting requires specific intent. See
Minn. Stat. §§ 609.02, subd. 9 (explaining when criminal intent is
element of crime), .05, subd. 1 (specifying that aiding and abetting includes
intent element) (2004); see also Charlton, 338 N.W.2d at 30 (specifying that aiding and abetting
requires specific intent). When a
defendant raises duress as a defense to a specific-intent crime, he is not
obligated to bear the burden of persuasion for the defense because duress
negates the intent element of the crime, and the state has the constitutional
obligation to prove each element of the crime.
State v. Hage, 595 N.W.2d 200,
In determining whether the state has presented sufficient
evidence to establish the intent element of the offense and rebut the defense
of duress, we examine “whether the jury could reasonably find the
defendant guilty given the facts in evidence and the legitimate inferences
which could be drawn from those facts.” State
v. Miles, 585 N.W.2d 368, 372 (
Allers met his initial burden of providing sufficient
evidence of duress to make the defense an issue in the case. The record shows that Allers initially told
investigating officers that he participated in the theft and assault only
The state introduced evidence that Allers had been friends
with both Raper and
The record also includes evidence that Allers’s fear did
not continue throughout the commission of the crime and that he had several
opportunities to safely withdraw. Even
if he initially drove away from the
Based on the evidence in the record, the jury could reasonably conclude that Allers was not under a present, reasonable apprehension of death, that his fear did not continue throughout the commission of the crime, and that he could have safely withdrawn from the crime. We therefore conclude that the state offered sufficient evidence to disprove the elements of duress and permit the jury to reasonably conclude that Allers was guilty of the charges.
A claim of ineffective assistance of
counsel must ordinarily be raised in a postconviction proceeding rather than on
direct appeal. State v. Gustafson, 610 N.W.2d 314, 321 (
defendant has the burden of establishing that his attorney’s representation “fell
below an objective standard of reasonableness” and that a reasonable probability
exists that, but for the attorney’s error, the result of the proceeding would
have been different. Gates v. State, 398 N.W.2d 558, 561 (
Allers asserts that he received ineffective assistance of counsel because
his attorney failed to secure an on-the-record waiver of his right to testify. Both the
The record does not contain any discussion of Allers’s waiver of his right to testify. Nor does anything in the record suggest that his attorney deprived him of the opportunity to testify. In the absence of any reference to Allers’s right to testify, we presume that his failure to testify represents a voluntary and intelligent waiver of this right.
On this record, Allers’s claim of ineffective assistance of counsel fails for three reasons. First, Allers’s failure to testify is presumed to be a valid waiver and does not demonstrate that his attorney’s representation fell below an objective standard of reasonableness. Second, in the absence of any obligation to secure a waiver on the record, his attorney’s failure to do so does not represent ineffective assistance. Finally, Allers has failed to demonstrate that, even if his attorney’s representation was ineffective, the result of the proceeding would have been different. No evidence suggests that if Allers had waived his right on the record, the result would have changed. Allers does not assert that he would have testified; he simply claims that his testimony was necessary to his defense. But the jury had evidence of his claimed defense, and Allers has not demonstrated that his testimony could have altered the jury’s decision. Allers has therefore failed to establish ineffective assistance of counsel.