This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).


James Robert Simons,


State of Minnesota,

Filed August 20, 1996
Randall, Judge

Wabasha County District Court
File No. K2-93-235

Charles L. Hawkins, 2890 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Hubert H. Humphrey, III, State Attorney General, Jonathan C. Audette, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge 1 .


Appellant challenges the postconviction court's denial of his petition for relief, arguing he was denied due process when the court refused to grant him an evidentiary hearing. We affirm.

In 1978, appellant James Simons purchased from his parents a 450-acre farm and house located near Lake City, Minnesota. Due to severe financial problems, appellant was forced to sell all but 8 acres to satisfy his debts. On March 27, 1992, appellant's home burned. A few months prior to the fire, the Lake City State Bank (Bank) foreclosed on the house and farm due to appellant's default on loans. Appellant had until the end of July 1992 to pay approximately $59,000 to the Bank to redeem the property.
By complaint, appellant was charged with one count of arson in the first degree, in violation of Minn. Stat. § 609.561 (1992), and one count of defrauding an insurer, in violation of Minn. Stat. § 609.611(b) (1992). After consulting with counsel, appellant waived his right to a jury trial. Appellant was tried to the court and was convicted as charged. Following sentencing, appellant filed a petition for postconviction relief, alleging ineffective assistance of counsel and insufficiency of evidence. The postconviction court denied appellant's petition for relief without an evidentiary hearing. This appeal followed.

A petitioner seeking postconviction relief must establish, by a fair preponderance of the evidence, facts that merit a reopening of the case. State v. Rainer , 502 N.W.2d 784, 787 (Minn. 1993). On appeal, this court reviews the postconviction court's decision under an abuse of discretion standard, and "the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings." Id. Absent an abuse of discretion, a postconviction court's decision will not be disturbed. Id.
As a preliminary matter, we note that appellant correctly argues that he does not have to prove his case to get an evidentiary hearing. He merely has to allege facts that if proven, would entitle him to relief. See Hanley v. State , 534 N.W.2d 277, 278 (Minn. 1995) ("An evidentiary hearing is not required unless petitioner alleges facts which, if proven, would entitle petitioner to the requested relief.") (emphasis added). However, "[t]he facts alleged must be more than bald assertions or conclusory allegations without factual support." Berg v. State , 403 N.W.2d 316, 318 (Minn. App. 1987), review denied (Minn. May 18, 1987).
Appellant argues that he is entitled to postconviction relief based on his claim that he was denied effective assistance of trial counsel. To establish a right on this claim, appellant must prove that counsel's representation "fell below an objective standard of reasonableness" and a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hanley , 534 N.W.2d at 279 (citing Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). The standard to determine whether an attorney provides effective representation is whether he or she exercises "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." State v. Gassler , 505 N.W.2d 62, 70 (Minn. 1993). Appellant alleged that his counsel failed (1) to investigate and present evidence "of unexplained fires in the Wabasha area" and "regarding the jealous husband of [appellant's] former girlfriend * * * who had been a suspect in at least one previous arson for profit" and (2) to interview or subpoena favorable defense witnesses, including character witnesses. The postconviction court found that these allegations failed to meet either prong of the Strickland test.
There is a strong presumption that a counsel's performance falls within the wide range of "reasonable professional assistance." State v. Jones , 392 N.W.2d 224, 236 (Minn. 1986). Questions of which witnesses to call at trial and what information to present to the jury "lie within the proper discretion of the trial counsel." Id. Disagreement over trial strategy does not constitute ineffective assistance of counsel. State v. Gobely , 366 N.W.2d 600, 603 (Minn. 1985), cert. denied 474 U.S. 922 (1985). On this record, we cannot say that appellant's trial counsel's failure to investigate the "unexplained fires" or to interview certain witnesses clearly falls below competent representation, because these decisions involve trial strategy. See Jones , 392 N.W.2d at 236 (holding that trial counsel's failure to hire investigator and interview prospective witnesses related to trial strategy and did not violate defendant's right to effective assistance of counsel). See also Scruggs v. State , 484 N.W.2d 21, 26-27 (Minn. 1992) (holding that trial counsel's failure to call three potential defense witnesses did not violate defendant's right to effective assistance of counsel). Further, appellant failed to show how trial counsel's failure to investigate actually prejudiced him. See Gates v. State , 398 N.W.2d 558, 562-63 (Minn. 1987) (holding that defendant's right to effective assistance of counsel was not violated where defendant failed to show he was actually prejudiced by trial counsel's alleged failure to investigate). Appellant did not allege facts necessary to show that but for his trial counsel's errors that there was a reasonable probability that the outcome of his trial would have been different. Fratzke v. State , 450 N.W.2d 101, 102 (Minn. 1990); see also Strickland , 466 U.S. at 694, 104 S. Ct. at 2068 (a "reasonable probability" is a probability sufficient to "undermine confidence in the outcome" of the proceeding).
Appellant argues next that the evidence offered by the State was insufficient to support his conviction of arson in the first degree. Specifically, he argues that the circumstantial evidence offered at trial was consistent with a rational hypotheses other than guilt.
On appeal, this court does not retry the facts, but must take the view of the evidence most favorable to the state and must assume that the fact-finder believed the state's witnesses and disbelieved any contradictory evidence. State v. Turnipseed , 297 N.W.2d 308, 313 (Minn. 1980). The state often relies on circumstantial evidence to prove an arson case because "usually no one is on the premises at the time the fire is discovered." State v. Jacobson , 326 N.W.2d 663, 665 (Minn. 1982). Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt. State v. Berndt , 392 N.W.2d 876, 880 (Minn. 1986), cert. denied 479 U.S. 1046 (1987). The evidence as a whole need not exclude all possibility that the defendant is innocent, it must only make such theory seem unreasonable. State v. Anderson , 379 N.W.2d 70, 78 (Minn. 1985), cert. denied 476 U.S. 1141 (1986). A fact-finder is in the best position to evaluate circumstantial evidence surrounding the crime, and its verdict is entitled to due deference. Berndt , 392 N.W.2d at 880.
This court has analyzed a defendant's motive, means, and opportunity in reviewing the sufficiency of circumstantial evidence to sustain an arson conviction. See State v. Conklin , 406 N.W.2d 84, 87 (Minn. App. 1987) (evidence demonstrating motive, means, and opportunity sufficient to sustain arson conviction). Here, the postconviction court found that the state produced substantial circumstantial evidence, which included: (1) evidence of appellant's motive, including his severe financial crisis and his ability to extinguish his debts and to profit from the arson; (2) evidence of appellant's means and opportunity to commit the crime, including the fact that appellant was home on the day of the fire, had sole access to the house, and always locked the house doors; (3) evidence that there was no sign of forced entry; (4) evidence that the explosion was caused by gasoline vapors collecting in the house and that four empty five-gallon gas cans owned by appellant were found on the property; and (5) evidence that appellant removed several personal items from the house before the fire, including a leather jacket, a six-box Playboy magazine collection, and tickets to the NCAA Final Four basketball tournament. Although the trial court and the postconviction court were the same judge, the fact-finder could have reasonably inferred from this evidence that appellant was guilty of first-degree arson.
We conclude that although it would not have been improper for the postconviction court to grant the requested evidentiary hearing, we do not find it reversible error to have denied it.

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Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.