may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed January 13, 1998
Olmsted County District Court
File No. T6-96-11427
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Terry Adkins, City Attorney, Thomas M. Canan, Assistant City Attorney, 201 Fourth Street Southeast, Room 247, Rochester, MN 55904-3780 (for respondent)
Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Foley, Judge, and Forsberg, Judge.*
Appellant challenges his conviction for fifth-degree assault, arguing the evidence was insufficient to support the conviction, his trial counsel was ineffective, the police failed to follow proper procedures to initiate the prosecution, and the trial court demonstrated bias. We affirm.
The officers were unable to locate Hampton after speaking with the victim. They charged Hampton with fifth-degree assault. Subsequently, prosecutors amended the charge to include a charge of disorderly conduct.
After a court trial, the trial court found Hampton guilty of fifth-degree assault and not guilty of disorderly conduct. Hampton appeals.
Hampton was convicted pursuant to Minn. Stat. § 609.224, subd. 1(1) (1996). Under this section, a person is guilty of assault if the person "commits an act with intent to cause fear in another of immediate bodily harm or death." Id.
Based on the victim's account of the incident at trial, the court reasonably could find that Hampton committed a fifth-degree assault. The victim testified that when she ordered Hampton to leave her apartment, he pulled her hair, struck her on the side of her head, and struck her arm a few times. The responding officers testified the victim was upset and afraid when they arrived at her apartment. Both officers observed a ponytail holder on the floor of the apartment containing hair. The officers also testified that the victim's ear was red and puffy and that her arm was red in the area where she stated Hampton had struck her. Although Hampton presented two witnesses who provided a different account of the incident, on review, the court must assume the finder of fact "believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The state's evidence was sufficient to support Hampton's conviction.
2. Hampton argues his trial counsel was ineffective. To establish a claim of ineffective assistance of counsel, a defendant must affirmatively prove that (1) counsel's representation was below an objective standard of reasonableness, and (2) it is reasonably probable that, but for the unprofessional mistakes of counsel, the outcome of the trial would have differed. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 6694, 104 S. Ct. at 2068).
Hampton claims he waived his right to a jury trial based on the recommendation of his counsel. The trial record, however, indicates that Hampton's counsel advised Hampton against proceeding with a court trial. The court questioned Hampton at length regarding the waiver, and Hampton advised the court that he was knowingly and voluntarily waiving his right to a jury trial. The record does not support this claim.
Hampton argues his counsel failed to present two "vital witnesses." He does not explain how the testimony of these witnesses would have affected his defense. Further, he offers no proof that his counsel failed to investigate these witnesses. Therefore, this claim lacks merit.
Hampton claims his trial counsel was ineffective for failing to present expert testimony concerning the victim's psychiatric condition and the effects of the victim's former drug use. Hampton claims expert testimony would have provided additional support for his theory that the victim's injuries were self-inflicted. The trial court, however, explicitly found that the victim's injuries were inconsistent with self-mutilation. In light of this finding, it was not unreasonable for trial counsel to decide expert testimony would not be helpful.
Finally, Hampton claims his counsel was ineffective at the sentencing hearing because his counsel did not inform the court of errors in the prosecutor's record of Hampton's prior convictions. Hampton does not identify these errors or explain how they affected his sentence. Hampton fails to satisfy his burden for establishing ineffectiveness on this claim.
3. Hampton claims police did not follow proper procedures to initiate the prosecution because he was not arrested and was, instead, advised of the assault charge by mail. Hampton failed to raise this issue in the trial court. Therefore, we will not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, reviewing court only considers issues that were presented to and considered by the trial court) (citing Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)).
4. Hampton claims the trial court was biased against him. Hampton did not seek the trial judge's recusal during the two-day trial, and did not raise the issue of bias in a posttrial motion. Once a defendant has submitted to a trial and other proceedings before a judge without raising the issue of bias, the judgment will be reversed only if the defendant is "able to show actual bias and not just the appearance of bias." State v. Moss, 269 N.W.2d 732, 735 (Minn. 1978). Hampton offers no proof of the trial court's actual bias.