may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Alvin Schultz,
Filed July 20, 1999
Faribault County District Court
File No. K6-98-115
Cortlen G. Cloutier, Elizabeth A. Cloutier, Cloutier & Cloutier, L.L.P., 900 Nicollet Mall, Suite 716, 63 South 9th Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Brian D. Roverud, Faribault County Attorney, 125 North Main Street, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
Considered and decided by Willis, Presiding Judge, Harten, Judge, and Thoreen, Judge.[*]
Appellant challenges his convictions, arguing that the district court's refusal to grant a continuance was an abuse of discretion that deprived appellant of effective assistance of counsel and that the refusal to instruct the jury on a lesser-included offense was also an abuse of discretion. Because we see no abuse of discretion in the refusal to grant a continuance or to instruct on a lesser-included offense and because appellant was not deprived of the effective assistance of counsel, we affirm.
On May 28, 1998, the public defender filed a demand for a speedy trial. The trial, which had been scheduled for July 8, was rescheduled as the first backup trial on Monday, June 29. On Friday, June 26, after appellant and the public defender were notified that the trial would be the first trial on June 29, appellant said he wanted to retain private counsel. Before trial on the morning of June 29, the private counsel chosen by appellant phoned the district court to say he would represent appellant if a continuance were granted.
Appellant's public defender moved for the continuance, telling the district court that appellant realized that seeking a continuance waived his right to a speedy trial and that appellant was dissatisfied with the public defender's representation. The prosecutor argued against the continuance, telling the court that appellant wanted the continuance so he would have a different prosecutor because that prosecutor was leaving the county two days later.
The district court denied the continuance and trial proceeded with the public defender. Appellant testified on his own behalf. The jury was instructed on first-degree burglary and assault and found appellant guilty on all counts.
Appellant now claims that the district court abused its discretion and deprived him of the effective assistance of counsel by denying his request for a continuance and by refusing to instruct the jury on fourth-degree burglary as a lesser included offense.
It is within the trial court's discretion to rule on a defendant's request for continuance. We cannot reverse the trial court absent a showing of prejudice by the defendant, but reversal is required where denial of a continuance deprives defendant's counsel of adequate trial preparation.
In re Welfare of L.B., 404 N.W.2d 341, 344 (Minn. App. 1987) (citation omitted). L.B. involved a juvenile petitioned for delinquency who chose to retain private counsel shortly before trial. Counsel agreed to represent the juvenile if a continuance were granted. Id. at 343. The continuance was denied, in part because the juvenile had failed to contact the substitute attorney until shortly before trial. Id. at 345. This court upheld the denial, finding that the juvenile "has shown little or no prejudice from the denial," even though the juvenile had to proceed without an attorney except for a court-appointed attorney who assisted in an advisory capacity. Id. Here, appellant also waited until shortly before trial to contact private counsel; he can show even less prejudice than the juvenile in L.B., because appellant had an attorney present and prepared to represent him. We conclude that there was no abuse of discretion in denying the continuance.
2. Ineffective Assistance of Counsel
The defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
To support his claim of ineffective assistance, appellant argues that counsel failed (1) to tell him he had the right not to testify, (2) to argue self-defense, and (3) to call other witnesses. The record provides no support for the alleged failure to tell appellant he did not need to testify; appellant appears to have testified voluntarily. Moreover, appellant must show that these failures resulted from something more than tactical decisions of counsel. See State v. White, 349 N.W.2d 603, 605 (Minn. App. 1984) ("defendant must show that the action complained of was so patently erroneous that it could only have been ineffectiveness of counsel and not trial tactics.").
Appellant cannot meet this burden in regard to not arguing self-defense or not calling other witnesses--both were tactical decisions. Appellant testified that he was angry, that he forcibly entered the victim's home, and that he sought out the victim. These facts would defeat a claim of self-defense because the first element of self-defense is the absence of aggression or provocation on the part of a defendant. See State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997). None of the three individuals appellant wanted to call as witnesses had been present at the alleged assault, and appellant testified at his sentencing hearing that the attorney had explained that these individuals would only harm appellant. The decision not to call them as witnesses was tactical, and tactical decisions do not rise to the level of ineffective assistance. See White, 349 N.W.2d at 605.
We conclude that appellant has not shown that he was deprived of the effective assistance of counsel.
3. Jury Instructions
The decision to instruct on a lesser-included offense is within the discretion of the trial court. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). The test for instructing on a lesser-included offense has two parts--whether the lesser offense is necessarily included, and whether the evidence would permit the jury rationally to acquit on the greater offense and convict on the lesser. State v. Gorman, 532 N.W.2d 229, 233 (Minn. App. 1995), aff'd, 546 N.W.2d 5 (Minn. Apr. 19, 1996).
The jury was instructed that first-degree burglary includes entering a dwelling in which another person, not an accomplice, is present, pursuant to Minn. Stat. § 609.582, subd. 1(a) (1996), and also includes assaulting a person within the building under subdivision 1(c) of that statute. Appellant argues that the jury should also have been instructed that fourth-degree burglary includes entering a building without consent with intent to commit a misdemeanor other than to steal, pursuant to Minn. Stat. § 609.582, subd. 4 (1998).
Because appellant testified that he entered the trailer home knowing it was a dwelling, seeking its occupant whom he then assaulted, the jury could not rationally have acquitted him of entering a dwelling but convicted him of entering a building, nor acquitted him of assault and convicted him of a misdemeanor other thanstealing. The district court did not abuse its discretion in refusing to instruct the jury on fourth-degree burglary as a lesser-included offense.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant's reliance on In re Welfare of T.D.F., 258 N.W.2d 774 (Minn. 1977), and City of Minneapolis v. Price, 280 Minn. 429, 159 N.W.2d 776 (1968) (both finding an abuse of discretion in denial of a continuance) is misplaced because both cases are readily distinguishable. In T.D.F., the denial resulted in a juvenile being represented by attorneys new to his case who had no time to prepare; in Price, the original counsel had withdrawn on short notice.
 As a threshold matter, we note that this issue is more appropriately raised in a postconviction hearing because "the reviewing court does not have the benefit of all the facts concerning why defense counsel did or did not do certain things." Roby v. State, 531 N.W.2d 482, 484 n. 1 (Minn. 1995) (quotation omitted).