This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1237

State of Minnesota,

Respondent,

vs.

Kelly Daniel Stepp,

Appellant.

Filed March 25, 1997

Affirmed

Mansur, Judge

[*]

Pennington County District Court

File No. K195665

Hubert H. Humphrey III, Attorney General, Heidi Neff Christianson, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

David M. Olin, Pennington County Attorney, Pennington County Courthouse, First Street and Main Avenue, P.O. Box 396, Thief River Falls, MN 56701 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue SE #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Short, Judge, and Mansur, Judge.

U N P U B U B L I S H E D O P I N I O N

MANSUR, Judge

A jury convicted Kelly Daniel Stepp of first-degree assault in violation of Minn. Stat. § 609.221 (1996). The court imposed a 120-month executed sentence, representing a 34-month upward departure from the 86-month presumptive sentence. On appeal, Stepp argues: (1) out-of-court identification procedures violated his due process rights; (2) he is entitled to reversal due to prosecutorial misconduct; (3) he was denied effective assistance of counsel; and (4) the sentencing court abused its discretion by improperly failing to consider the co-assailant's sentence. We affirm.

D E C I S I O N

I.

Failure to raise an issue, even a constitutional issue, in the district court constitutes a waiver of consideration of the issue on appeal. State v. Beard, 288 N.W.2d 717, 718 (Minn. 1980). If a defendant fails to raise an issue in the district court, this court will set aside a conviction only when the failure to do so would perpetuate an injustice in the sense that an innocent person may have been convicted. Id.

Stepp argues for the first time on appeal that pretrial photographic identification procedures were unconstitutional because the victim saw Stepp and the co-assailant handcuffed together in prisoner's clothing sometime prior to the identification session. By not raising this issue below, Stepp waived consideration on appeal. Furthermore, we conclude that the pretrial photographic identification procedures did not create a substantial likelihood of misidentification because: (1) the victim knew Stepp personally; (2) the victim had ample opportunity to observe his assailants before the assault; (3) prior to the photographic identification session, the victim identified Stepp, by name, as his assailant twice at the hospital and again one week after the assault; and (4) Stepp's co-assailant testified that Stepp assaulted the victim. See State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979) (upholding the conviction where the identification procedures used were not so impermissibly suggestive as to create a "very substantial likelihood of irreparable misidentification").

II.

We apply a two-tier test when deciding whether prosecutorial misconduct was harmless. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994) (citing State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989)). Where the misconduct is "unusually serious," an affirmance of the conviction requires certainty beyond a reasonable doubt that the error was harmless. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). In cases involving less serious misconduct, the test is whether the misconduct played a substantial part in influencing the jury to convict. Id.

Stepp argues that prosecutorial misconduct denied him his right to a fair trial. He objects to the following four sentences taken from ten and one-half pages of trial transcript covering the prosecutor's closing argument:

Ten witnesses for defense. Are you satisfied with their explanation as to who done it? Did it create reasonable doubt? I would respectfully request, ladies and gentlemen of the jury, that the testimony of the defense witnesses did not create that reasonable doubt.

Stepp's attorney objected and the objection was overruled by the trial court. Stepp did not raise the issue of prosecutorial misconduct in his post-trial motion for a new trial. The prosecutor's statements are troubling because of the improper shifting of the burden of proof to Stepp. Later, however, the prosecutor correctly stated the burden of proof as follows:

You have to decide, has the state's case proved to you beyond a reasonable doubt who done it? The state would respectfully submit we have.

In addition, confusion was corrected by: (1) Stepp's attorney highlighting the appropriate burden of proof in his closing argument; and (2) the court's proper burden of proof instructions. Upon careful consideration, we conclude that the misconduct, viewed in light of the whole record, was not so inexcusable and prejudicial as to deny Stepp's right to a fair trial. See id.

Stepp argues pro se that the prosecutor committed additional misconduct by: (1) suggesting in the opening argument that the state knew if and how Stepp would testify in his own defense; (2) allowing conflicting and perjurious testimony by state witnesses; (3) allowing the state's main witnesses to be held in the same room prior to testifying; (4) failing to charge a state witness with obstruction of justice; and (5) allowing state witnesses to testify that defense witnesses were "nut cases." These claims are without merit. There is no evidence in the record that the prosecutor knowingly presented perjured testimony to the court and Stepp failed to demonstrate how any of his allegations prejudiced his right to a fair trial.

III.

The Minnesota Sentencing Guidelines are intended to

reduce sentencing disparity and insure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender's criminal history.

State v. Garcia, 302 N.W.2d 643, 646 (Minn. 1981) (summarizing the Statement of Purpose and Principles, Minn. Sent. Guidelines I), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996). The purpose of the guidelines will not be served if judges avoid following the guidelines in "general" cases. Id. at 647. It is clear, nonetheless, that the guidelines allow judges to depart from the presumptive sentence when individual cases involve "substantial and compelling circumstances." Id. This court will reverse a sentence that: (1) is based solely on improper considerations and cannot be justified by additional, valid factors disclosed by an independent review of the record; or (2) constitutes a clear abuse of discretion. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (allowing for reversal of sentences when the record does not establish the existence of any proper aggravating factors); Garcia, 302 N.W.2d at 647 (reviewing a sentencing decision, based partially on valid sentencing considerations, for a clear abuse of discretion).

Stepp argues that the sentencing court abused its discretion by sentencing him to a greater sentence than his co-assailant. He claims the trial court should have ensured that the two offenders received similar sanctions. We disagree. The record establishes, and the trial court cited, the existence of proper aggravating factors, including: (1) the assault took place in the victim's home; (2) multiple blows were inflicted with a baseball bat; and (3) the assault subjected the victim to probability of death, serious disfigurement and permanent impairment. See, e.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (invasion of the victim's home is an aggravating factor); State v. Kisch, 346 N.W.2d 130, 133 (Minn. 1984) (departure justified where multiple blows were inflicted); State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (injury subjecting victim to high probability of death, permanent disfigurement or impairment, and other serious harm justified upward departure), review denied (Minn. Sept. 29, 1987). Further, it is not a per se abuse of discretion for the trial court to sentence an assailant to a longer sentence than the co-assailant. See State v. Williams, 337 N.W.2d 387, 390-91 (Minn. 1983) (upholding defendant's sentence despite its nonconformance with the lenient plea agreement sentence of accomplice).

IV.

An attorney provides effective representation by exercising the "customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances." Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (citations omitted). The defendant bears the burden of proving his attorney did not provide effective representation and of showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "Trial tactics, however, are not to be confused with competence." State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990) (quoting Morgan v. State, 384 N.W.2d 458, 460 (Minn. 1986)).

Stepp argues pro se that he was denied effective assistance of counsel because his counsel vigorously questioned a friendly witness and damaged her credibility. We conclude that Stepp's ineffective assistance of counsel claim concerns matters of trial tactics which lie within the discretion of counsel. See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (trial tactics should not be reviewed by an appellate court and counsel must have the flexibility to represent a client to the fullest extent possible).

In addition, appellant argues pro se that the district court erred by: (1) failing to include the criminal history of crucial state witnesses; and (2) admitting hearsay. He also claims his trial was tainted by: (1) an inexplicable lapse of time (one and one-half weeks) between the assault and the arrest of suspects by the police; and (2) the disappearance of a taped statement by witness Christine Shetler. Stepp's arguments are without merit. See State v. Sebasky, 547 N.W.2d 93, 97 (Minn. App. 1996) (prior bad acts are admissible to show intent, plan or preparation only when the evidence is relevant and material to the state's case, clear and convincing, and more probative than its potential for unfair prejudice), review denied (Minn. June 19, 1996); see also State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991) (decisions regarding the admission of evidence rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion); State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981) (defendant claiming error in the trial court's evidentiary rulings must show a reasonable possibility the error substantially influenced the jury to convict).

Affirmed.

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