This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2314

 

Steven Gary Olson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 10, 2006

Affirmed

Worke, Judge

 

Washington County District Court

File No. K2-01-2830

 

Douglas H.R. Olson, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for appellant)

 

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

 

Douglas H. Johnson, Washington County Attorney, Kari A. Lindstrom, Assistant County Attorney, Jennifer S. Bovitz, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the district court’s denial of appellant’s postconviction petition challenging his 2003 conviction of theft by swindle and diversion of corporate property, appellant argues that (1) the district court erred in a pretrial order; (2) the district court erred in evidentiary rulings; (3) the prosecutor committed prejudicial misconduct in her closing argument; (4) there was insufficient evidence to prove the charges; (5) the district court failed to sufficiently define key elements in its jury instructions; (6) he was denied effective assistance of trial counsel; and (7) the district court erred in ordering full restitution.  We affirm.

FACTS

In 1994, appellant Steven Gary Olson and James Jackson organized and were each 50% shareholders in Elite Roofing and Construction, Inc.  Elite soon evolved into a large commercial roofing contractor, earning $3 million annually.  Appellant was Elite’s president and took care of the day-to-day operations.  Jackson was the vice president and treasurer, and was Elite’s “field guy” and foreman of the roofing crews.  Appellant and Jackson received weekly paychecks and profit-sharing distributions, and under four shareholder-compensation agreements received: (1) a four-wheeler, (2) $10,000 for home improvements, (3) $4,500 for work on their homes, and (4) each of their wives received a vehicle.  Elite had a simple bookkeeping system.  A manual notation was made in the check register and the checks were then recorded in a computer register that was also used to balance the checkbook.  While appellant and Jackson were both authorized to sign Elite’s checks, appellant signed the vast majority. 

In the summer of 2000, appellant’s relationship with Jackson began to break down.  Jackson decided to review Elite’s records to determine its value before approaching appellant about a buy-out.  When Jackson discovered discrepancies in Elite’s records, he confronted appellant, and appellant admitted to destroying some checks.  Jackson later discovered that several computer files, including the check register, had been deleted, and he found records in the dumpster behind the business.  On July 3, 2000, appellant resigned.

Jackson reported appellant’s acts to the Cottage Grove Police Department.  The police department then worked with Elite’s new bookkeeper to reconstruct Elite’s financial records.  Copies of cancelled checks led investigators to various purchases appellant made at electronics and furniture stores.  A review of appellant’s credit-card statements revealed significant advances at casinos and purchases of vacations and personal property.  A search warrant executed at appellant’s home produced a computer disk that contained Elite’s check register.

            The investigation uncovered 221 transactions of theft totaling $334,139.05.  An accounting expert separated the theft from Elite into four categories: (1) Elite checks used for appellant’s personal purchases; (2) Elite’s credit card used for appellant’s personal purchases; (3) Elite checks used to pay appellant’s personal credit-card balances; and (4) alteration of corporate records.  Appellant altered Elite’s financial records by issuing a single check to pay for several invoices and then taking one or more of the invoices and issuing a second check payable to appellant or to “cash.”  This second check was registered as being issued to creditor(s) on the invoice(s); however, records and creditors’ testimony revealed that Elite made no cash payments on its accounts.  Between June 1996 and July 2000, appellant had issued 128 checks to himself and falsely reported them in the check registry.

Appellant was charged with theft by swindle over $35,000 and diversion of corporate assets over $35,000 in violation of Minn. Stat § 609.52, subd. 2(4), (15) (2000).  After a jury found appellant guilty, the district court ordered appellant to pay Elite $334,139 in restitution.  Appellant filed a petition for postconviction relief, which the district court denied, and this appeal follows.

D E C I S I O N

“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  For that reason, this court affords great deference to the postconviction court’s findings and will not reverse those findings unless they are clearly erroneous.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction court’s decision will be upheld absent an abuse of discretion.  State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).

Pretrial Order

 “[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

            Appellant argues that the district court erred by sua sponte issuing a pretrial order determining what his defenses were going to be and by limiting him from testifying concerning his lack of intent.  Appellant argues that his case is similar to State v. Brechon, 352 N.W.2d 745 (Minn. 1984).  In Brechon, the Minnesota Supreme Court disapproved of a broad exclusionary order that excluded the defendants’ testimony about their intent and motives, and concluded that it is fundamental that criminal defendants have a due-process right to explain their conduct to a jury.  Brechon, 352 N.W.2d at 750-51.  However, the court stated that the district court could impose limitations by excluding irrelevant testimony and by ruling on admissibility as the trial proceeded.  Id. at 751.

Here, the district court’s pretrial order was specific and narrow in scope, providing:    

                        Any defense that asserts that [appellant] cannot be guilty of theft from Elite, because he is a shareholder of Elite and a person cannot steal from himself is insufficient as a matter of law.  A corporation is a separate legal entity with rights distinct from those of its individual directors, officers, and shareholders.  Consequently, any and all evidence that is intended solely to prove that [appellant] merely ‘stole from himself’ is irrelevant and, thus, inadmissible.  Such evidence may be admissible, however, if probative of some other fact that is of consequence to the determination of this case. 

 

(Emphasis added.)  “Evidence which is not relevant is not admissible.”  Minn. R. Evid. 402.  Therefore, appellant had a right to testify regarding his lack of intent, but he did not have a right to present irrelevant or improper evidence.  See State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992) (“A criminal defendant’s right to present evidence in his defense is limited by the rules of evidence, and there is no right to present irrelevant evidence.”), review denied (Minn. Mar. 19, 1992). 

            Appellant was allowed to, and did, testify that he did not intend to steal from Elite.  Appellant testified that it was his belief that he was authorized to write checks for office expenditures and to compensate and reimburse himself.  Appellant also testified that it was his belief that he was not stealing because he was authorized to write checks and use Elite’s credit cards.  The district court merely limited appellant’s testimony regarding his belief that he could not be criminally liable for stealing from himself as a 50% shareholder.  The district court did not err in limiting irrelevant testimony from appellant.  

            Appellant also argues that the district court erred by ruling that evidence regarding Jackson’s alleged “thefts” from Elite was inadmissible.  Appellant contends that evidence regarding Jackson’s alleged “thefts” went to Jackson’s credibility, bias, and motivation for testifying and pursuing charges against appellant.  The scope of cross-examination is always subject to the broad discretion of the district court.  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).  The district court’s discretion, however, is limited by the Sixth Amendment.  Id.at 640(“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” (quotation omitted)). 

Again, the district court’s pretrial order was specific and narrow in scope, providing:

Any defense that asserts that [appellant] cannot be guilty of theft from Elite, because Jackson also committed acts of theft against Elite is insufficient as a matter of law.  Any and all evidence that is probative only as to whether Jackson committed acts of theft against Elite is irrelevant and, thus, inadmissible.  Such evidence may be admissible, however, if probative of some other fact that is of consequence to the determination of this case.   

 

(Emphasis added.)  Appellant was allowed to introduce evidence of Jackson’s use of corporate funds, but was limited in using that evidence solely to show that appellant could not be guilty because Jackson also committed acts of “theft.”  The district court’s order did not deny appellant the opportunity to expose Jackson’s bias or to attack his credibility.  The district court did not err in limiting the scope of appellant’s cross-examination of Jackson.

Evidentiary Rulings

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  

Appellant argues that the district court erred when it prevented appellant from   presenting evidence regarding a civil lawsuit between appellant and Jackson.  If the district court erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).  But if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, the error is prejudicial.  Id.

Appellant contends that evidence regarding the civil lawsuit between Jackson and appellant went to Jackson’s credibility.  Appellant, however, does not offer anything to support his argument that it was prejudicial error for the district court to limit the admission of such evidence.  This is especially true in light of the fact that there are over 60 pages of trial transcript containing cross-examination of Jackson in which his credibility is called into question.  

Appellant next argues that the district court erred when it excluded an IRS audit report from evidence.  Appellant claims that this report supported appellant’s belief that what he did was acceptable because the IRS reviewed Elite’s financial records.  Appellant did not introduce an IRS audit report; rather, appellant wanted to testify that the IRS found no wrongdoing following an audit.  The district court did not allow appellant to testify as such because it was hearsay.  “Evidentiary rulings concerning . . . foundation . . . are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.” Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  Because appellant only offered that he could provide hearsay foundation for the IRS report, the district court did not abuse its discretion in determining that appellant could not lay proper foundation for an IRS audit report. 

Finally, appellant argues that the district court erred by admitting evidence in the form of schedules from an expert accountant summarizing the methods appellant used to steal from Elite.  Appellant challenges the title of one schedule, arguing that it is prejudicial, argumentative, and forms a conclusion that is a fact determination for the jury.  If the district court erred in admitting evidence, this court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict[.]”  Post, 512 N.W.2d at 102 n.2.  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id. 

The contents of voluminous writings may be presented to the court in the form of a chart or summary if it is inconvenient for the writings to be introduced individually.  Minn. R. Evid. 1006.  Here, a forensic accounting expert testified regarding the methods appellant used to steal from Elite.  The expert prepared several schedules that provided summaries of the information extracted from Elite’s records to present a clear, easy-to- follow format.  Appellant objected to the admission of one schedule entitled: “Schedule of Corporate Funds Diverted to Pay Non-corporate Expenses.”  Appellant argues that this title is conclusory and prejudicial because it was for the jury to determine whether appellant diverted corporate funds.

The admissibility of summarized evidence is a matter within the discretion of the district court and will not be reversed absent an abuse of that discretion.  Adrian v. Edstrom, 304 Minn. 52, 60, 229 N.W.2d 161, 166 (1975). 

As a general rule, such charts are admitted in long, complicated cases where they accurately represent the proponent’s testimony or theory and where the court determines that such would be an aid to the jury and instructs the jury to use the exhibit only as an aid and not as the evidence itself.

 

State v. Ruud, 259 N.W.2d 567, 576 (Minn. 1977).  In Ruud, the defendants challenged the admission of a chart that purported to summarize an auditor’s testimony of the defendants’ alleged personal expenses.  Id. at 575.  The supreme court held that in the absence of a specific objection to the title and a request for a limiting jury instruction, the admission was not reversible error.  Id. at 576.  The court also determined that the chart was helpful as an accurate summary and the jury had access to all of the original exhibits that went into making the chart.  Id.

Here, appellant objected to the title of the schedule at trial, but even if admitting the schedule as titled was error, it was not reversible error.  The schedule was prepared from Elite’s records and is a summary of Elite checks registered as being issued for office supplies/equipment but that were discovered to be written by appellant for personal purchases, e.g., CDs, DVDs, furniture, a game table, TVs, and a camera.  Appellant admitted during his testimony that he made these purchases.  Appellant also testified that he purchased the DVDs for training purposes, but most of the DVDs purchased were of popular motion pictures that were found at appellant’s home.  The schedule was an accurate summary, it was helpful to the jury and the jury had access to all of the original exhibits that went into the chart.  The district court did not commit reversible error in admitting the schedule as it was titled. 

Prosecutorial Misconduct

Prosecutorial misconduct occurs when the state appeals to passion or prejudice and distracts a jury from determining whether the evidence provides proof beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  In reviewing claims of misconduct, this court will reverse only if the misconduct, considered in light of the whole trial, impaired the defendant’s right to a fair trial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  In cases involving less-serious misconduct, this court will reverse only if the misconduct “played a substantial part in influencing the jury to convict.”  State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

Appellant argues that the prosecutor committed misconduct by making disparaging comments about appellant in her closing argument.  Misconduct cannot be based on a few isolated statements but must be considered in the context of the entire closing argument.  Powers, 654 N.W.2d at 678.  Here, the prosecutor stated, “playing dumb is not a defense,” “the defendant sits up on the stand and says, ‘I don’t know why I’m here,’” and made comments regarding appellant’s inability to find anything to support his case in 22 boxes of discovery.  Appellant argues that these comments are disparaging.  It is improper to disparage the defense in closing argument.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997).  But appellant’s counsel neither objected to the remarks nor requested a curative instruction.  Defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001).  Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” comments.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Failure to object implies that the comments were not prejudicial.  Id.  Appellant failed to object or to seek a curative instruction.  Therefore, relief will be granted only if the prosecutor’s conduct was unduly prejudicial. 

Even considering the merits, after examining the prosecutor’s closing argument in its entirety, the misconduct was harmless beyond a reasonable doubt.  See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (noting, in dicta, that a “defendant is not entitled to a new trial where it can be said with certainty that the misconduct was harmless beyond a reasonable doubt”).  In State v. Hoppe, this court held that the prosecutor committed misconduct by disparaging the defense when it referred to the defense’s argument as “ridiculous,” and told the jury not to be “snowed” by the defense.  State v. Hoppe, 641 N.W.2d 315, 321 (Minn. App. 2002), review denied (Minn. May 14, 2002).  The prosecutor in Hoppe also commented that the defendant’s previous convictions demonstrated a propensity to commit the charged crime, urged the jury to find the defendant guilty by suggesting that a conviction would protect society and the jury’s loved ones, and implied that the only way to end the defendant’s behavior was to find him guilty.  Id.  This court held that the prosecutor’s comments, taken in the totality of the closing argument, were not harmless beyond a reasonable doubt and that the defendant was denied the right to a fair trial.  Id. at 322; see also State v. Ray, 659 N.W.2d 736, 747 (Minn. 2003) (concluding the prosecutor’s attempt to supply race-based explanation for witnesses’ behavior improperly invited the jury to apply racial and socio-economic considerations in determining guilt).  However, in State v. Buggs, the supreme court concluded that reversal was not warranted because although the prosecutor improperly attacked the defendant’s character when she referred to him as a “coward” with a “twisted” thought process, the comments were isolated and did not contribute to the jury’s verdict.  State v. Buggs,581 N.W.2d 329, 342 (Minn. 1998); see alsoState v. Ives, 568 N.W.2d 710, 713-14 (Minn. 1997) (concluding the prosecutor improperly attacked the defendant’s character by commenting that the defendant was a “would-be punk[]” with a “pathetic little li[fe]” but that the comments were not so prejudicial as to require a new trial because the comments were harmless beyond a reasonable doubt).  In this case, the comments were isolated, and given the amount of evidence of appellant’s guilt, the comments did not influence the jury verdict.  Thus, the prosecutor did not engage in prejudicial misconduct.

   Appellant next argues that the prosecutor argued facts outside the record by blaming the theft on appellant’s gambling.  Evidence of appellant’s gambling was admitted into evidence.  Appellant and his wife admitted to gambling, and credit-card statements showed several withdrawals made at casinos.  Also, appellant’s tax returns reported gambling winnings and losses.  The prosecutor’s comment on appellant’s gambling was not prejudicial misconduct.  

Next, appellant argues that it was misconduct for the prosecutor to suggest that      appellant had not produced witnesses or evidence to support his defense. 
Despite waiver of this argument, review of the record demonstrates that this claim is without merit.  See State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002) (stating that “the failure to object or request a curative instruction weighs against reversal[]”).  “A prosecutor may challenge a defendant’s rebuttal theory without shifting the burden of proof to the defense.”  Hoppe, 641 N.W.2d at 320.  The prosecutor did not give a personal opinion of anyone’s credibility and the statement “the story is in the documents here, or, in [appellant’s] case, the lack thereof” is not the type of comment that has been found to be objectionable belittling of a defense.  See State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994) (“The prosecutor [is] free to specifically argue that there [is] no merit to the defense[.]”). 

Finally, appellant argues that the prosecutor committed misconduct by impermissibly interjecting herself as a witness by offering her own assertions regarding appellant’s claim that he had been denied access to documents.  Appellant fails to argue what specifically the prosecutor did that constituted misconduct.  Further, appellant failed to object at trial and, therefore, has waived this issue on appeal.  See Taylor, 650 N.W.2d at 208. 

Moreover, the alleged misconduct was not “unduly prejudicial.”  See Whittaker, 568 N.W.2d at 450 (stating that relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” misconduct).  First, appellant failed to object to the prosecutor’s comments at trial.  A defendant’s failure to object implies that the misconduct is not prejudicial and “weighs heavily against granting any remedy.”  Ives, 568 N.W.2d at 713.  Second, the district court diminished the effect of the prosecutor’s comments by instructing the jury that counsel’s arguments were not evidence, and that they must decide the case without prejudice or emotion.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that jury instructions are relevant in determining whether the jury was unduly influenced by improper comments).  Third, the evidence strongly supported the verdict.  See Ives, 568 N.W.2d at 714 (considering “overwhelming evidence of [the defendant’s] guilt” in holding that the prosecutor’s misconduct did not influence the jury’s determination of guilt).  The prosecutor did not commit prejudicial misconduct. 

Sufficiency of the Evidence

On an insufficient-evidence claim, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict [that] they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “This is especially true where resolution of the case depends on conflicting testimony[.]”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  “[This court] will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and [the requirement of] proof beyond a reasonable doubt, could reasonably conclude that [the] defendant was proven guilty of the offense charged.”  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

To obtain a conviction of theft by swindle, the state had the burden of proving beyond a reasonable doubt that appellant obtained property or services from another person by swindling, whether by artifice, trick or device.  Minn. Stat. § 609.52, subd. 2(4) (2000).  The elements of theft by swindle as applied in this case are:  (1) Elite gave up possession of money to appellant because of the swindle; (2) appellant acted with the intention of obtaining for himself the possession of money from Elite; and (3) appellant’s act was a swindle.  10 Minnesota Practice, CRIMJIG 16.10 (1999).  The essence of a swindle is the cheating of another person by a deliberate artifice or scheme accomplished by false representation as to either past or future facts, and may include a trick or a scheme consisting of mere words or actions.  Id.  It does not require the use of some mechanical or other device.  Id.

Appellant argues that the evidence is insufficient to support his convictions.  Specifically, appellant argues that as half-owner of Elite he could not swindle himself, his check-writing authority was limitless, Elite had no approval process for issuing checks, a corporation is not a person, and he was authorized to reimburse himself for money he put into Elite.  During trial, evidence of 221 theft transactions was admitted, including unauthorized use of Elite checks for personal purchases that benefited appellant, receipts, fraudulent check registers, altered invoices, and credit-card statements.  The evidence was sufficient for the jury to convict appellant of theft by swindle because Elite gave up possession of money to appellant, appellant obtained the money for himself, and he did this through a scheme that he concealed from Jackson. 

To obtain a conviction of theft of corporate property, the state had the burden of proving that appellant, “with intent to defraud, divert[ed] corporate property other than in accordance with general business purposes or for purposes other than those specified in the corporation’s articles of incorporation.”  Minn. Stat. § 609.52, subd. 2(15) (2000).    The elements of theft of corporate property as applied to this case are: (1) appellant diverted Elite’s money to himself; (2) the diversion of Elite’s money was not in accordance with general business purposes, or was for purposes other than those specified in Elite’s articles of incorporation; and (3) appellant acted with an intent to defraud.  10 Minnesota Practice, CRIMJIG 16.32 (1999).  “‘[I]ntent to defraud’ is an intent to deceive another to gain some material advantage.”  Id. 

Appellant argues that the evidence was insufficient to find him guilty of diversion of corporate funds because Elite’s articles do not specify or limit Elite’s business or expenditures, compensation is a general business purpose, there were no restrictions on appellant’s spending, and he did not have the requisite intent to defraud as half-owner.  Elite’s bylaws do not include the acts committed by appellant in Elite’s general business purpose.  Specifically, the chief financial officer is responsible for disbursing corporate funds and issuing checks in the name of the corporation as ordered by the board.  The board, as Jackson testified, did not approve of appellant issuing checks to himself, issuing checks payable to cash, or to his numerous credit cards.  Appellant testified that he had authority to write checks in this manner, but we must assume the jury believed Jackson’s testimony. The evidence was sufficient to show that appellant used Elite’s money for himself, outside of the corporation’s business purposes and with an intent to deceive Elite to gain additional compensation for himself. 

Jury Instructions

Despite the fact that appellant made no jury-instruction requests, he argues that the instructions were inadequate.  Generally, “an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.”  State v. Baird, 654 N.W.2d 105, 113 (Minn.  2002); see also Minn. R. Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.”).  However, even without objection, this court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.”   State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).  The supreme court has adopted a three-prong test for plain error to determine whether the court should review an unobjected-to error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the test, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id.  If this test is met, the court must consider whether it should address the error to ensure the fairness and integrity of the judicial proceedings.  Id.

Appellant argues that the district court failed to adequately instruct the jury on “property of another” and should have instructed the jury on appellant’s claim of right and entitlement.  A district court is given considerable latitude in selecting the language of jury instructions, but instructions may not materially misstate the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  Appellant argues that along with the instruction: “The money involved in this case is property.  The money may be the property of a person other than the defendant, even though the defendant was a co-owner of Elite[,]” the district court should have instructed the jury regarding appellant’s claim of right or entitlement to the money.  Appellant did not ask for an instruction of this nature and it was not necessary for the district court to instruct the jury in this manner because the evidence was contrary to appellant’s assertion.  Jackson testified that appellant did not have authority to use Elite’s money in the manner that he did and that the partners did not have an agreement allowing appellant reimbursement for money he put into Elite.  The district court did not err in not instructing the jury on appellant’s claim of right. 

Appellant also argues that the district court erred by not defining “general business practices” in the context of the corporate-diversion statute.  Appellant did not request such an instruction, therefore, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Griller, 583 N.W.2d at 740.  When reviewing the jury instructions, this court must assume that the jurors were intelligent and practical people.  State v. Edwards, 269 Minn. 343, 350, 130 N.W.2d 623, 627 (1964).  The district court’s failure to define “general business practices” was neither so confusing nor so prejudicial as to mislead intelligent and practical people.  The jury instructions viewed in their entirety fairly and adequately explained the law of the case.  See State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984).

Ineffective Assistance of Counsel

We review de novo decisions by the postconviction court concerning claims of ineffective assistance of counsel.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).  To prevail on an ineffective-assistance-of-counsel claim, a defendant must allege facts that demonstrate that “his counsel[’s] performance 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.”  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (quotation omitted).  “Both prongs must be satisfied to grant relief.”  Kaiser v. State, 621 N.W.2d 49, 54 (Minn. App. 2001), aff’d on other grounds, 641 N.W.2d 900 (Minn. 2002). 

Generally, we indulge a strong presumption that counsel’s performance falls within “the wide range of professionally competent assistance.”  Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); accord State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  The supreme court has stated that “[t]o act within an objective standard of reasonableness, an attorney must provide his or her client with the representation that an attorney exercising the customary skills and diligence . . . [that a] reasonably competent attorney would perform under similar circumstances.”  State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (quotation omitted).

Appellant argues that counsel failed to comply with pretrial orders and failed to subpoena records and witnesses.  The record, however, indicates the opposite regarding pretrial orders and counsel’s own filing of numerous pretrial motions.  Appellant’s further assertions are critical of his trial counsel’s trial tactics and not incompetence.  See State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (stating that an appellate court will not review defense counsels’ trial tactics such as decisions to call certain witnesses).  Appellant concedes that “throughout pretrial proceedings and throughout trial, a recurrent defense theme was that the defense was blocked in its efforts to obtain records and information.”  This theme was used to attack Jackson’s credibility.  Appellant also asserts that his trial counsel should have requested a continuance to review 22 boxes of discovery the defense received a week before trial.  Counsel not requesting a continuance was consistent with appellant’s theme of attacking Jackson’s credibility—by asserting that there was nothing useful in the boxes because Jackson destroyed documentation.  

Appellant next argues that his trial counsel failed to effectively cross-examine Jackson.  As noted previously, there are over 60 pages of trial transcript containing the cross-examination of Jackson.  Additionally, while the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront and cross-examine a witness, it only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”  Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985).

Finally, appellant argues that his trial counsel failed to object during the prosecutor’s closing argument, to preserve objections, adequately proffer evidence, and failed to make an adequate record for appeal.  Appellant, however, fails to identify any particular instance where his counsel failed.  Because counsel’s representation at trial did not fall below an objective standard of reasonableness, we do not reach the second prong of the ineffective-assistance-of-counsel test.  Given the apparent competence with which appellant’s counsel presented his case, the district court did not abuse its discretion in denying the petition for postconviction relief with respect to the ineffective-assistance-of-counsel claim.

Appellant argues that he should have been granted an evidentiary hearing on his petition for postconviction relief.  A postconviction court is not required to hold an evidentiary hearing unless there are material facts in dispute that must be resolved in order to determine the postconviction claim on the merits.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  “[A]n evidentiary hearing is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.”  Id.(quotation omitted).  “The petitioner’s allegations must be more than argumentative assertions without factual support.”  Id.(quotation omitted). 

Here, appellant argues that he is entitled to an evidentiary hearing based on the alleged error that his trial counsel failed to request and introduce exonerating documents.  The district court determined that many of the claims in appellant’s petition for postconviction relief revolved around which documents were offered into evidence.  The district court determined that the trial evidence included many documents and whether to request a continuance to sort through those documents fell within counsel’s discretionary trial tactics.  The district court did not abuse its discretion in denying appellant’s petition for postconviction relief because his allegations, if proved, would not entitle him to relief. 

Restitution Order

A crime victim has the right to restitution as part of the disposition of a criminal charge that results in conviction.  Minn. Stat. § 611A.04, subd. 1(a) (2000).  The district court has wide discretion to order reasonable restitution, however, there must be a factual basis establishing the victim’s loss.  State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985).  If an order for restitution is challenged, the state must establish the amount of the loss sustained by the victim by a preponderance of the evidence.  Minn. Stat. § 611A.045, subd. 3(a) (2000). 

Appellant argues that the district court should have made a reduction in the restitution amount in light of the fact that appellant owned 50% of Elite and because appellant was entitled to reimburse himself for funds he put into Elite.  Additionally, appellant argues that the court failed to take into account the fact that appellant had little resources available to pay restitution.  When determining the amount of restitution, the court shall consider “the amount of economic loss sustained by the victim as a result of the offense” and “the income, resources, and obligations of the defendant.”  Minn. Stat. § 611A.045, subd. 1(a) (2000).  But the district court has “wide flexibility to structure restitution orders that take into account a defendant’s ability to pay . . . a reduced monthly payment.”  State v. Maidi, 537 N.W.2d 280, 285–86 (Minn. 1995) (affirming $147,251.27 restitution order imposed on a defendant who earned $6.50 per hour because the district court considered the defendant’s resources when it determined the restitution payment schedule). 

The district court rejected appellant’s arguments that he was entitled to (1) offset one-half of Elite’s profits and (2) reimbursement for money he invested in Elite.  The district court determined that it would reconsider whether an amount should be offset from the total amount of restitution in light of a resolution in the civil trial between Jackson and appellant.  However, because the victim was Elite and not Jackson, it was premature to determine whether an amount should be offset.  Further, appellant argues that he has documentation of agreements between appellant and Jackson that show he was entitled to reimbursement for money that he put into Elite.  First, the authenticity of the alleged agreements is questionable.  Second, the amounts reflected in the agreements are minor compared to the total amount appellant was found guilty of stealing from Elite.  The district court had wide discretion in awarding full restitution to Elite and has suggested a willingness to readdress the issue once the civil suit has resolved. 

Appellant also argues that he does not have sufficient funds to pay full restitution.  However, the district court determined that because appellant was currently an employee of a new roofing business that he formerly owned and that is now run by his wife, the court could not easily accept appellant’s proof of wages.  Appellant did not successfully demonstrate an inability to pay the required monthly restitution payments.  The district court did not abuse its discretion in determining that appellant was able to pay restitution to Elite.    

Affirmed.