STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Allen Charles Eliason,
Filed July 13, 1999
Ramsey County District Court
File No. K198782
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Clayton Robinson, St. Paul City Attorney, Daniel Vlieger, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (for respondent)
Mark E. Wersal, 7841 Wayzata Boulevard, Suite 201, Minneapolis, MN 55426 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.
This appeal is from a conviction for gross misdemeanor indecent exposure and possession of a dangerous weapon and indecent exposure. See Minn. Stat. §§ 609.66, subd. 1(a)(5), 617.23, subd. 1(a)(1) (1996). We conclude that the evidence supporting the conviction is sufficient and that Eliason received effective assistance of counsel. Accordingly, we affirm.
Appellant Allen Eliason was charged with exposing himself in the driveway of a home, then spraying its residents and their guest with mace after they pursued him. The complaint charged Eliason with indecent exposure, enhanced to a gross misdemeanor because Eliason had a prior indecent exposure conviction, and possession of a dangerous weapon, enhanced to a gross misdemeanor because Eliason possessed a "dangerous article or substance" (mace) within a school zone. Retaining a private attorney to represent him, Eliason waived his right to a jury trial and tried the matter to the court.
The victim of the indecent exposure testified that she was looking out her window when she saw a man in dark clothes standing on the carport, facing her house, exposing himself and engaging in self-manipulation. The victim’s husband, daughter, and guest rushed to confront the offender. Following footprints in the freshly fallen snow, they went to a nearby residence and found Eliason crouched in hiding.
Eliason claimed he had only been urinating. But when informed that police had been called, he fled. During the ensuing chase, Eliason maced all three of his pursuers before being subdued. At trial, the court found Eliason guilty of both offenses and sentenced him to concurrent stayed sentences of one year in jail.
Eliason argues that his attorney’s performance was so deficient that it deprived him of his constitutional right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (Sixth Amendment right to counsel encompasses right to actual assistance from counsel); Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995) (defendant claiming ineffective assistance must show that attorney’s representation fell below an objective standard of reasonableness). A defendant must show that but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Hanley, 534 N.W.2d at 279.
Eliason claims that his attorney was confused about certain elementary rules; used questionable language and tactics, particularly in cross-examination; and was unable to enter certain exculpatory video tape into evidence. In order to establish ineffective assistance, a defendant must show prejudice. See State v. Banks, 379 N.W.2d 168, 173 (Minn. App. 1985) (noting defendant must show prejudice from counsel’s alleged deficiencies), review denied (Minn. Feb. 14, 1986). Eliason has not shown that a videotape of the scene, taken at a different season of the year, in different light, would have been admissible even if trial counsel had properly disclosed the videotape and shown more familiarity with process of laying foundation.
Several of Eliason’s claims concern trial tactics, which themselves cannot support an ineffective assistance claim. See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (claim of ineffective assistance may not be based on hindsight review of trial tactics). The rest of Eliason’s claims fail for lack of a showing of prejudice. Unfettered outbursts and ad hominem attacks on witnesses are not acceptable trial tactics. But because the state’s evidence here was overwhelming, we find no prejudice. Moreover, trial was to the court, which, by training and experience, is better equipped than a jury to separate counsel’s flaws from the merits of the client’s case. Eliason has not shown a reasonable probability that absent counsel’s errors the result of the proceeding would have been different. Hanley, 534 N.W.2d at 279.
Eliason argues that the evidence is insufficient to support his conviction for indecent exposure and possession of a dangerous weapon. In reviewing a claim of insufficient evidence, this court must determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the factfinder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the factfinder believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The standard of review is the same for a trial to the court as for a jury trial. State v. Davis, 540 N.W.2d 88, 90 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996).
In challenging the indecent exposure conviction, Eliason questions the credibility of the victim. This court defers to the trial court’s assessment of credibility and the weight to be given her testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Moreover, the victim’s failure to use the statutory terminology of a "lewd" exposure does not undermine the state’s proof.
Eliason’s challenge to the conviction for possession of a dangerous weapon is legal rather than factual in nature. He argues that mace is not a dangerous weapon, and therefore should not be considered a "dangerous article or substance," for purposes of the statute under which he was convicted. See Minn. Stat. § 609.66, subd. 1(5) (1998) (prohibiting the possession of any "dangerous article or substance" for use as a weapon against another).
Minnesota law regulates the possession and use of tear gas, including the substance oleoresin capsicum (OC), the type of tear gas compound Eliason used. Minn. Stat. § 624.731 (1998). Federal case law recognizes that mace, although a relatively nontoxic substance with little lasting health effects, may be dangerous, particularly when used in excessive quantities. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (discussing justified uses of dangerous and nondangerous quantities of chemical agents); Estate of Bryant by Bryant v. Buchanan, 883 F. Supp. 1222, 1227, 1230 (D. Ind. 1995) (citing manufacturer’s statement that CS gas is relatively nontoxic, but noting that police officers’ excessive use of it caused unconsciousness, although it did not cause the asphyxiation that resulted in the person’s death). Minnesota law itself requires that mace be labeled with or accompanied by instructions on "the dangers involved in its use." Minn. Stat. § 624.731, subd. 2(a) (1998).
These recognized dangers may not satisfy the statutory definition of "dangerous weapon," which would require at least a capacity to create protracted impairment. Minn. Stat. § 609.02, subds. 6, 8 (1998). But mace, which is designed to produce temporary impairment, and may cause serious injury, does fit within the broader term of "dangerous article or substance." Thus, the evidence is sufficient to support the conviction for possession of a dangerous article or substance.