This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-1807

 

 

State of Minnesota,

Respondent,

 

vs.

 

Curtis Paul Heikkenen,

Appellant.

 

 

Filed September 10, 2002

Affirmed
Toussaint, Chief Judge*

 

Crow Wing County District Court

File No. K5002749

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Donald R. Ryan, Crow Wing County Attorney, 326 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant challenges his conviction for terroristic threats, arguing that he was denied effective assistance of counsel when his attorney failed to request an instruction that self-defense and defense of property were valid and complete defenses to the charge of terroristic threats.  Because appellant only alleges errors with the tactics employed by his trial attorney, and because his attorney raised this defense in his closing argument, we affirm appellant’s conviction for terroristic threats.

FACTS

            At approximately 2:00 a.m., on November 4, 2000, appellant Curtis Paul Heikkenen awoke to the sound of a house window breaking.  Appellant went outside and saw that his fence had been tipped over.  He heard “music booming” from his neighbor Dawn Lewandowski’s house.  He walked to her house and knocked on her door to see if someone from the party had damaged his property.  Michael Moen, a guest at the party, testified that Lewandowski refused to let appellant in because he was angry.  Moen observed appellant walk to the side of the house and throw a rock through Lewandowski’s window.  Appellant, however, testified that when no one answered at the front door he went to the back door, encountered Moen and a woman, and asked them, “Are you guys breaking my windows?”  After the woman suggested that Moen fight appellant, appellant retrieved his hunting knife from his house.  Moen testified that he followed appellant to his backyard to “calm him down,” but appellant pulled out a knife and said, “You want to fight, you want some of me?”  Moen ran back to Lewandowski’s house, saw police officers responding to a disturbance call regarding appellant, and led Sergeant David Holtz to appellant’s backyard.  Appellant testified that he saw only two figures approach and yelled, “Stay off my property.”  Holtz testified that when he and Moen approached appellant’s backyard, appellant was screaming at them, “Come on f---ers.  I’ll kill you, you mother f---ers.”[1]  Holtz repeatedly told appellant to freeze and drop the knife.  Holtz then drew his gun and once again asked appellant to drop the knife.  Appellant testified that Holtz did not identify himself as an officer and that once appellant saw the pistol, he asked Holtz if he was a police officer.  When Holtz stated that he was, appellant dropped the knife, and Holtz arrested him. 

            Appellant was charged with two counts of second-degree assault, terroristic threats, and first-degree criminal damage to property.  He waived an omnibus hearing and pleaded not guilty.[2]  At trial, defense counsel requested self-defense and defense-of-property instructions with respect to the alleged assaults on Moen and Holtz.  The district court found sufficient evidence regarding appellant’s use of force to support a defense-of-person jury instruction for the alleged assaults against Moen and Holtz, but agreed only to instruct the jury on defense-of-property for the alleged assault against Moen.  Defense counsel did not ask the court for a defense-of-person or defense-of-property jury instruction for the charge of terroristic threats and none was given.  A jury found appellant guilty of making terroristic threats and acquitted him on both counts of assault.  The court imposed the presumptive sentence of 18 months in prison, stayed execution of the sentence, placed appellant on supervised probation for five years, and ordered him to pay a $95 fine.  This direct appeal followed.

D E C I S I O N

            Appellant requests a new trial because he claims he received ineffective assistance of counsel.  “Effective assistance of counsel is an integral component of the right to a fair trial, guaranteed by the Sixth Amendment.”  State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984)).  To reverse a conviction for ineffective assistance of counsel, the defendant must prove that (1) defense counsel’s performance “fell below an objective standard of reasonableness;” and (2) “a reasonable probability exists that the outcome would have been different but for counsel[’s] errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  A defendant must show that counsel’s errors “were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  In determining whether the defendant has shown prejudice, a reviewing court considers all the evidence that was before the judge or jury.  Id. at 694, 104 S. Ct. at 2068. 

There is a strong presumption that an attorney acted competently at trial.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  An attorney’s actions are reasonable when the attorney “provides [the] client with ‘the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.’”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citation omitted). 

On direct appeal, matters of trial strategy, including which defenses to raise at trial, will not be reviewed later for competence.  Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001).  The decision not to request an instruction is a matter of trial strategy. Doppler, 590 N.W.2d at 633.  Even if there were errors in counsel’s performance, the defendant still has the burden to show he was prejudiced as a result.  Jones, 392 N.W.2d at 236-37.  Prejudice is determined by examining whether, “under the totality of the circumstances, the result would have been different if counsel had not erred.”  Id. at 237.

            Appellant argues that his constitutional right to effective assistance of counsel was violated because his attorney failed to request a self-defense instruction for his terroristic threats charge.  Appellant contends that this error “cannot be explained as an objectively reasonable exercise of tactical discretion,” because it left appellant “with no defense at all to the terroristic threats charge.”  Appellant’s only alleged error, however, is his trial counsel’s failure to request a self-defense jury instruction, which is a matter of trial strategy.  And “[s]uch trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.”  Jones, 392 N.W.2d at 236.

            Moreover, contrary to what appellant proposes, his trial counsel did attach a self-defense theory to his terroristic threats charge:

Now, there’s a count of terroristic threats hanging out there, and there doesn’t seem to be a defense attached to it.  But again, look at the terroristic threats for what it is.  The whole picture.  What is the specific intent behind the threat?  Or is it a threat, even?  Is it even a threat?  It’s part of his defense.  That’s how he is protecting himself.  He is using words to protect himself.  He is not throwing fists.  He’s using words.  The State is asking you to convict based on words.  These words were used to protect himself and his property, and were entirely appropriate, considering the totality of that circumstance, considering the whole picture.

 

            Thus, any alleged error caused by defense counsel’s failure to ask for a jury instruction was cured by defense counsel’s closing statement where he argued self-defense for the terroristic threats charge.           

           Finally, even if there were errors in counsel’s professional performance, appellant must still show that he was prejudiced as a result.  Appellant argues that if the jury had received self-defense instructions for the charge of terroristic threats it would have acquitted him of this charge.  Appellant bases this assumption on the fact that (1) the conduct underlying the alleged assaults and the alleged terroristic threats was “indivisible”; (2) the jury was instructed on both self-defense and defense-of-property as complete defenses for both alleged assaults but not for the alleged terroristic threats; and (3) the jury acquitted him only of the alleged assaults and not of the terroristic threats. 

            The terroristic threats charge, however, only required the state to prove that appellant made threats “to commit any crime of violence with [the] purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror.”  Minn. Stat. § 609.713, subd. 1 (2000).  And the record contains overwhelming evidence to support a terroristic threats charge, including (1) the consistent testimony given by Sergeant Holtz and Moen that appellant threatened to injure them with his hunting knife, and (2) appellant’s own testimony admitting that he threatened Moen and the officer with a knife.  Thus, appellant has failed to show that his trial counsel’s professional performance was in error and that he was prejudiced as a result. 

            Affirmed.