Filed September 6, 2005

Affirmed

Toussaint, Chief Judge

St. Louis County District Court

File No. K3-03-300899

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Alan Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 1810 12th Avenue East, Room 107D, Hibbing, MN 55746 (for respondent)

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

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

TOUSSAINT, Chief Judge

On appeal from his convictions of two counts of obstructing legal process and one count of disorderly conduct, appellant contends that: (1) the evidence presented was insufficient to establish proof beyond a reasonable doubt; (2) the district court erred in imposing separate sentences for each of the convictions because they arose from a single behavioral incident; (3) he was denied effective assistance of counsel; (4) his right to counsel was violated when he was denied counsel at his arraignment; and (5) the admission of his confession at trial was a violation of his Fifth Amendment privilege against self-incrimination. Because we conclude that there was sufficient evidence to support appellant’s conviction, the district court did not err in imposing separate sentences, appellant has not met his burden to show that he was denied effective representation, appellant was represented by counsel at his arraignment, and the use of appellant’s confession did not violate his right against self-incrimination, we affirm.

D E C I S I O N

Sufficiency of Evidence

Appellant Michael Roland Starry argues that the evidence presented at trial was insufficient to establish proof beyond a reasonable doubt to support his three convictions. When considering a claim of insufficient evidence, this court’s review is limited to a careful assessment of the record to determine whether “a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.” State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000). When reviewing the record, this court must view the evidence in the light most favorable to a jury’s verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Determining the weight and credibility of witness testimony is a matter for the jury. Id. Here, we must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” Id.

Appellant was convicted of misdemeanor obstructing legal process (at the scene) and gross-misdemeanor obstructing legal process (at the jail). Under Minn. Stat. § 609.50, subd. 1(2) (2002), whoever intentionally obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties is guilty of a misdemeanor. Further, if the act is “accompanied by force or violence or the threat thereof,” the offense becomes a gross misdemeanor. Minn. Stat. § 609.50, subd. 2(2). Appellant was also convicted of disorderly conduct. Under Minn. Stat. § 609.72, subd. 1 (2002):

Whoever does any of the following in a public or private place, . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor: (1) [e]ngages in brawling or fighting; or . . . (3) [e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Appellant specifically argues regarding the obstructing-legal-process convictions that the state failed to prove beyond a reasonable doubt that appellant, by his words and actions, substantially frustrated or hindered the officers in the performance of their duties as required by the statute. According to the testimony of the officers at trial, they arrived at the scene of a “possible domestic assault.” When the officers entered the duplex, they observed three females and a male standing on the landing outside the apartment. One of the women, L.M., told the officers that appellant had punched her in the head, to which appellant responded, “Yes, I did punch her but she punched me back as well.” Because appellant appeared angry and agitated, the officers asked appellant to step outside, but appellant refused. When the officers asked again, appellant responded, “F--k that, I ain’t going anywhere.” Appellant resisted when the officers attempted to handcuff him for refusing to cooperate. Once the handcuffs were secured, appellant used his shoulder to push the officer, who was escorting him outside, into the wall. The officer restrained appellant against the door and repeatedly instructed him to quit resisting. Once outside, the officer restrained appellant on the ground to search him for weapons. While being searched, appellant attempted to head-butt and kick the officer, and looked directly into the officer’s eyes when he told him, “I know your family, I know where you live, and I’m going to f--k you up when I get out.”

At the jail, appellant told the officers, “I have a third degree black belt and I’ll kick both of your f-----g a--es.” Appellant was brought to a cell, and when officers ordered him to sit on the bed, appellant swung at one of the officers as if to punch him. When the officers determined that it would be necessary to move appellant to another cell because the cell door would not close, appellant jumped up and told the officers, “I’ll kick your f-----g a--.” One of the officers grabbed appellant by the shoulders to block any punches and delivered a knee strike to appellant’s thigh which brought appellant to the floor long enough for the officer to gain control of appellant’s limbs and move him safely to another cell. The officer received a bleeding injury to his hand and an injury to his back as a result of his confrontation with appellant. Under the applicable standard of review – the weight and credibility of the witnesses’ testimony at trial is for the jury to determine – we must assume that the jury believed the officers’ testimony. Moore, 438 N.W.2d at 108. Thus, there was sufficient evidence to support appellant’s obstructing-legal-process convictions.

Finally, the evidence supports appellant’s disorderly-conduct conviction in two ways. First, the officers were called to the scene due to appellant’s physical altercation with L.M., and when the officers arrived at the scene, appellant admitted to striking L.M. Second, when the officers attempted to find out what had happened, appellant began arguing with L.M. in the presence of the officers. Again, we must assume that the jury believed the officers’ testimony. Thus, there was sufficient evidence to support appellant’s convictions.

Single Behavioral Incident

Appellant argues that the district court erred in imposing separate sentences for each of the convictions because they arose from a single behavioral incident. When a person’s conduct constitutes more than one criminal offense, he may be punished for only one of the offenses. Minn. Stat. § 609.035, subd. 1 (2002). The purpose of this statute is to limit punishment to a single sentence where a single behavioral incident results in the violation of multiple criminal statutes. State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999). Multiple punishment means that multiple sentences, including concurrent sentences, are barred when Minn. Stat. § 609.035 applies. Id. When determining if the offenses arose from a single behavioral incident, courts generally consider the factors of time, place, and whether the defendant was motivated by a single criminal objective. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The district court’s decision on whether multiple offenses are part of a single behavioral incident is a fact determination and should not be reversed unless clearly erroneous. State v. Heath, 685 N.W.2d 48, 61 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

The facts of this case lead to the reasonable conclusion that the offenses were separated in time, place, and criminal objective. The disorderly conduct charge resulted from appellant’s physical altercation with L.M. prior to the officers’ arrival and arguing with L.M. in the presence of the officers. The charge of obstructing legal process at the scene arose when the officers asked appellant to step outside, appellant refused and resisted arrest while verbally assaulting the officers. Finally, the charge of obstructing legal process at the jail arose when appellant refused to cooperate when the officers attempted to place him into his cell. Each offense was committed at a different time, at a different place, and had a different criminal objective. Because it was reasonable for the district court to conclude that the offenses did not arise from a single behavioral incident, the district court did not err in imposing separate sentences for the convictions.

Ineffective Assistance of Counsel

Appellant argues that his public defender acted with “gross negligence and incompetence” by failing to introduce evidence that supported his case. To succeed on a claim of ineffective assistance of counsel, appellant must show that his trial counsel’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” Boitnott v. State, 631 N.W.2d 362, 370 (Minn. 2001). This court need not address either of these elements “if the defendant makes an insufficient showing on one.” Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984). There is a strong presumption that counsel’s performance was reasonable. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Appellant has made no attempt to show how the outcome of his case would have been different but for the instances of his trial counsel’s alleged errors, and therefore he has not met his burden to show that he was denied effective representation of counsel.

Right to Counsel

Appellant also argues that his right to counsel was violated when he was denied counsel at his arraignment. This issue, however, is meritless, considering that a review of the record shows that appellant applied for and was appointed a public defender to defend him at his arraignment hearing. Appellant completed an application for a public defender on the date of the arraignment, and an order appointing the public defender was issued. Further, a memorandum from a probation officer regarding release recommendations for appellant was submitted to the court at appellant’s arraignment and was copied to appellant’s public defender, who was the only attorney that represented appellant throughout the proceedings.

Privilege Against Self-Incrimination

Finally, appellant argues that the admission of his confession was a violation of his Fifth Amendment privilege against self-incrimination because he was never read his Miranda rights. The Miranda warnings are required in order to protect a defendant’s Fifth Amendment privilege against self-incrimination. Rhode Island v. Innis, 446 U.S. 291, 297 (1980). A Miranda warning is required for custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The test, for whether a person is in custody for purposes of Miranda is whether that person is restrained to a “degree associated with a formal arrest” and whether the person has an objectively reasonable belief that he or she is not free to leave. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). In this regard, the court must examine “all of the surrounding facts to determine whether there is a formal arrest or restraints comparable to [a] formal arrest. . . .” State v. Voigt, 486 N.W.2d 793, 795 (Minn. App. 1992) (citing Rosse, 478 N.W.2d at 484), review denied (Minn. Aug. 4, 1992). Here, appellant was not in custody when he confessed to hitting L.M. The officers had just arrived on the scene and were merely attempting to determine what had occurred. When L.M. told the officers that appellant had assaulted her, appellant admitted that he hit L.M. but stated that she hit him back. Appellant was not taken into custody until he refused to leave with the officers and resisted arrest. The use of appellant’s confession was not a violation of his Fifth Amendment privilege against self incrimination.

Affirmed.

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