This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Scott William Nace,


Filed March 13, 2007


Stoneburner, Judge


St. Louis County District Court

File No. K402601378


Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Melanie S. Ford, St. Louis County Attorney, St. Louis County Courthouse, Suite #501, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)


John M. Stuart, State Public Defender, Benjamin Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


Scott William Nace, CHUM Drop-In Center, 125 North First Avenue West, Duluth, MN 55802 (pro se appellant)


            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his conviction of fourth-degree assault, arguing that the district court abused its discretion by denying his request for a different public defender, that the evidence was insufficient to support his conviction, and that a jury instruction erroneously stated the law.  We affirm.



            Appellant Scott William Nace was charged with fourth-degree assault of a peace officer and obstructing legal process after he scuffled with a Duluth police officer who was attempting to question Nace near the scene of a sounding burglar alarm at a downtown business.

            Nace was tried and convicted in May 2003, but this court reversed his conviction and remanded the case for a new trial solely because a judicial officer had presided over portions of the trial.[1]  On remand, the district court conducted a pretrial conference to address Nace’s request to discharge his public defender.  Nace’s attorney informed the court that Nace wanted to fire him because he refused to call witnesses who would provide irrelevant testimony about a pretrial suppression issue that had already been decided.  The district court told Nace that he could proceed with his current attorney or represent himself.  Because Nace did not indicate that he wanted to proceed pro se, the district court did not discharge his attorney.

            Nace was found guilty of both charges and was convicted of and sentenced for fourth-degree assault.  This appeal followed.



I.          Request for substitute counsel

            Nace first argues that the district court should have appointed substitute counsel and that the court subjected him to an unconstitutional choice of proceeding with unacceptable counsel or representing himself.  We disagree.

            The district court’s decision not to appoint substitute counsel is reviewed for abuse of discretion.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  “Criminal defendants have a constitutional right to an attorney and a corollary constitutional right to choose to represent themselves in their own trial.”  State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998).  “The right to counsel includes a fair opportunity to secure an attorney of choice, but an indigent defendant does not have the unbridled right to be represented by the attorney of his choice.” 278.  “A court will grant [a defendant’s] request for different counsel only if exceptional circumstances exist and the demand is timely and reasonably made.”  Id.(quotation omitted).  In Gillam, the supreme court defined “exceptional circumstances” as “those that affect a court-appointed attorney’s ability or competence to represent the client.”  629 N.W.2d at 449.  Mere disagreement with a court-appointed attorney about trial strategies and general dissatisfaction with representation do not require a substitute attorney.  See id. at 449-50 (holding that the district court did not abuse its discretion by denying Gillam’s request for a substitute attorney where Gillam was “generally dissatisfied”).  Nace does not argue that exceptional circumstances existed in this case nor has he challenged his attorney’s ability or competence to represent him.  He only cites his disagreement with the attorney about what witnesses to call, clearly a matter of trial strategy.

            Nace asserts that because the district court stated that the Chief Public Defender did not have to assign a different public defender if Nace did not like the one assigned, the court did not exercise any discretion and deferred to the Chief Public Defender’s policy.  We disagree.  The district court stated the law correctly and did not imply that it was without authority to appoint another attorney under appropriate circumstances.[2]

            Nace also asserts that the district court should have offered to let him represent himself with appointed standby counsel.  But Nace never expressed an interest in representing himself and did not discharge his attorney.  Nace cites no authority for his assertion that the district court was obligated to discuss with him the option of self-representation with standby counsel because there is no such obligation.  The district court did not abuse its discretion in denying Nace’s request for substitute counsel or in any other manner with regard to Nace’s representation.

II.        Sufficiency of evidence

            In considering a claim of insufficient evidence, appellate courts are “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Appellate courts “will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            Nace’s argument is based on the mistaken assertion that the assault charge was based solely on his attempt to hit the officer.  Nace argues that because the demonstrable harm suffered by the officer was a skinned knee and a cut hand, the state did not prove beyond a reasonable doubt that the assault caused the harm.  But the record demonstrates that it was the entire altercation between Nace and the officer that constituted the assault, not separate events within the encounter.

            The officer, who was behind Nace, yelled at him to stop and identified himself as a police officer.  Because Nace did not stop, the officer grabbed Nace’s left arm using a straight-arm-bar takedown technique.  Nace turned and tried to punch the officer, but the officer backed away from the punch and used the takedown technique to bring Nace to the ground.  The officer told Nace to lie flat on the ground, but Nace resisted and grabbed the officer’s legs causing him to fall and scrape his hands and right knee.  Nace did not release the officer’s legs until the officer maced him twice.  The altercation lasted only 15-20 seconds.  There is no merit in Nace’s assertion that the attempted punch was the only basis for the assault charge.

III.       Jury instruction

            Nace’s attorney did not object to the jury instructions at trial.  Unobjected-to jury instructions are reviewed for plain error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The three-pronged test for plain error requires (1) an error; (2) that is plain; and (3) that affects substantial rights.  Id.  The defendant bears the heavy burden of proving the third prong.  Id. at 741.  That burden is not met unless “there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Id. (quotation omitted).

            Nace asserts that the district court erred by instructing the jury that they would have to answer the question: “Did the defendant inflict demonstrable bodily harm on the officer?”  Nace asserts that the jury should have been asked if the assault inflicted demonstrable harm.  Nace’s argument is again based on his mistaken assertion that only the attempted punch constituted the assault.  Nace asserts that the jury could have determined that he caused harm to the officer that did not result from the attempted punch.  Because there is no merit in Nace’s underlying premise, there is no merit in his argument.  Nace has not shown error, let alone plain error.

IV.       Pro se arguments

            We have carefully reviewed Nace’s pro se arguments and find them to be without merit.


[1] State v. Nace, No. A03-1308 (Minn. App. June 24, 2004) (order op.).

[2] In a 1987 appeal on an unrelated matter, this court stated in response to a similar argument by Nace that “[t]he public defender’s office has a reasonable rule that it does not exchange counsel merely because a party is unhappy with the counsel appointed.”  State v. Nace, 404 N.W.2d 357, 361 (Minn. App. 1987), review denied (Minn. June 25, 1987).