This opinion will be unpublished and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

A05-1253

 

State of Minnesota,
Respondent,

vs.

Richard Peter Grenewich, Jr.,
Appellant.

 

Filed June 20, 2006

Affirmed

Peterson, Judge

 

St. Louis County District Court

File No. K7-05-100015

 

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

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802 (for respondent)

 

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

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from his conviction of felony domestic assault, appellant Richard Peter Grenewich, Jr., argues that (1) a new trial must be ordered because the district court denied his right to be present at an in-chambers hearing before trial; and (2) the evidence was insufficient to support the conviction.  We affirm.

FACTS

            The victim, C.E., was appellant’s girlfriend.  In January 2005, appellant was living with C.E. but looking for a place to rent.  Appellant admitted assaulting C.E. on three occasions before the incident that resulted in the current conviction. 

            On January 3, 2005, C.E. returned to her apartment with a friend, L.V.  When C.E. entered the apartment, appellant grabbed her by the back of the neck, bent her over, and called her names.  L.V. left the apartment and contacted the police.  At about 8:55 p.m., Virginia Police Officer Daniel Hanson spoke to L.V., who reported that C.E. and appellant had been arguing, she believed appellant posed a threat to C.E., and she was concerned about C.E.’s safety.  Hanson went to the apartment, and as he approached C.E.’s unit, he heard an argument coming from within.  C.E. and appellant were in the apartment.  Hanson noticed no fresh injuries on either one of them.  Believing that the two should be separated, Hanson asked appellant to leave, and when appellant agreed, Hanson gave him a ride downtown.  Hanson dropped appellant off at the police station, told him to call a friend for a place to stay, and told him not to go back to C.E.’s apartment that night. 

            After appellant left with Hanson, C.E. drank about four cans of beer.  Before going to sleep, C.E. took medications that were not supposed to be used with alcohol.  At about 2:45 a.m., C.E. woke up and saw appellant standing above her.  C.E. testified, “[Appellant] took his knee and stuck it on the front of my throat.  I couldn’t breathe, so I finally turned my head to the right.”  Appellant then began hitting C.E.’s temple and her ear with his fist.  A downstairs neighbor, D.A., who was awakened by the yelling, banged on the ceiling with a broom handle and told appellant and C.E. to be quiet.  After a short period of quiet, the yelling started again, and D.A. heard C.E. telling her to call 911.

            Hanson was dispatched to C.E.’s apartment in response to D.A.’s 911 call.  When Hanson arrived, he saw red marks on C.E.’s right cheek, redness on the left side of her face, and redness on her neck.  Those marks had not been there when Hanson came to the apartment the previous evening.  C.E. told Hanson that appellant had assaulted her.  Appellant denied assaulting C.E. and claimed that any injuries he caused to her were the result of him acting in self-defense after C.E. hit him in the eye and tried to hit him again. 

            Appellant was charged by complaint with one count of felony domestic assault, and the case was tried to a jury.  During an in-chambers conference immediately before trial began, the district court made two evidentiary rulings and accepted defense counsel’s stipulation that appellant had at least two prior domestic-assault convictions for assaults against C.E. that elevated the current charge to a felony.  Defense counsel explained that he was stipulating to the convictions “as a tactical decision . . . because I believe it would be more prejudicial for the jury to hear those convictions, especially considering the fact that they concern the same victim.”  The district court also ruled that C.E.’s 1992 felony controlled-substance conviction would not be admissible for impeachment purposes and that evidence of the relationship between appellant and C.E. was admissible under Minn. Stat. § 634.20 (2004). 

 

D E C I S I O N

I.

            Appellant argues that because he was not present at the in-chambers conference immediately before trial, he was deprived of his constitutional and procedural rights to be present at all stages of a criminal proceeding and a new trial must be ordered.  The Confrontation Clause of the Sixth Amendment to the United States Constitution grants a defendant the right to be present at all critical stages of trial.  Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987).  Minnesota provides an even “broader right by requiring that a defendant be present at every stage of the trial.”  State v. Charles, 634 N.W.2d 425, 432 (Minn. App. 2001) (citing Minn. R. Crim. P. 26.03, subd. 1(1)). 

            Citing State v. Thompson, 430 N.W.2d 151, 152 (Minn. 1988), respondent State of Minnesota argues that because neither appellant nor his attorney requested that appellant be allowed to be present at the in-chambers conference and neither objected to his absence, appellant has forfeited this issue on appeal.  See id. (when defendant’s attorney did not request that defendant be allowed to be present or object to defendant’s absence at a hearing to determine the competency of a child witness, the issue was forfeited);  see also State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005) (when defendant was not included in in-chambers conference at which a summary of defense witness’s testimony was prepared but neither defendant nor his attorney objected to the creation or use of the summary and no objection to defendant’s exclusion from the conference was raised at trial, issue was waived).

            Appellant acknowledges that a defendant can waive his right to be present at an in-chambers conference and forfeit the issue on appeal, but he argues that there cannot be a valid waiver when the record does not establish that the defendant knew about the in-chambers conference.  Appellant contends that waiver and forfeiture cannot be presumed on the record before us because the record does not indicate that appellant knew that counsel and the district court judge met in chambers.  But in Thompson, the supreme court stated that “[s]ince the defendant’s attorney did not request that defendant be allowed to be present [at a hearing to determine the competency of a child witness] or object to defendant’s absence, the court of appeals should have held simply that the issue was forfeited.”  430 N.W.2d at 152.  This statement suggests that an attorney’s failure to assert a client’s right to be present at a hearing is sufficient to forfeit the issue on appeal.

            However, as authority for this statement, the supreme court cited United States v. Gagnon, 470 U.S. 522, 529, 105 S. Ct. 1482, 1485-86 (1985).  In Gagnon, the Supreme Court held that a criminal defendant’s failure to invoke his right to be present at an in-chambers conference that the defendant knows is taking place constitutes a valid waiver of the defendant’s right to be present.  Also, the supreme court has recognized that the “decision to waive [the right to be present] is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.”  State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).  Consequently, because the recitation of the facts in Thompson does not indicate whether the defendant knew about the hearing that he did not attend, it is not clear whether the supreme court intended to simply apply Gagnon to a case in which the defendant knew about the hearing that he did not attend or intended to set forth a broader forfeiture rule than was recognized in Gagnon or intended something else.  Because the holding of Thompson is not clear, we are reluctant to conclude that appellant’s right to attend the in-chambers conference has been forfeited as an issue on appeal when the record does not demonstrate that appellant knew before the end of trial that the in-chambers conference occurred.

            But “[e]ven if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless.  If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001) (citations omitted).  Therefore, even if we assume that appellant has not forfeited this issue and that appellant was wrongfully denied his right to be present at the in-chambers conference, appellant is not entitled to a new trial if this error was harmless.  In deciding whether error was harmless, this court looks at the record as a whole and considers “what the defendant would have contributed to his defense if he had been present.”  State v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001).

            Appellant argues that if he had been present at the in-chambers conference he likely would not have stipulated to his prior convictions because the district court ruled that evidence about the incidents was admissible as relationship evidence and because the court was considering admitting his prior felony conviction as impeachment evidence if appellant testified.[1]  But appellant does not explain how refusing to stipulate to his convictions would have affected the guilty verdict.  Appellant does not dispute the existence of the prior convictions, and there is no challenge to the accuracy of the conviction records.  Because of the stipulation, the jury learned about only one prior conviction for domestic assault against C.E., which was admitted for impeachment purposes, rather than two.  Also, although appellant admitted assaulting C.E. on three previous occasions in addition to the prior conviction, the assaults were referred to as incidents rather than convictions.  See id. at 282 n.1 (noting that it is typically to defendant’s advantage to avoid presenting the question of prior convictions to the jury).  We see no basis for concluding that the verdict was attributable to the stipulation, which was, according to appellant, attributable to his absence from the in-chambers conference.[2] 

II.

            Appellant argues that because there is no credible evidence that he assaulted C.E., his conviction must be vacated.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow 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 contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).  The reviewing 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 guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues that because C.E. had used alcohol and medications that were not supposed to be used with alcohol, her testimony about the assault lacked credibility.  A witness’s state of intoxication at the time of events about which the witness testifies goes to the credibility of her testimony, and witness credibility is an issue for the jury to determine.   State v. Pendleton, 706 N.W.2d 500, 512 (Minn. 2005); see also State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002) (stating that even when a witness’ credibility is seriously called into question, “weighing the credibility of witnesses is a function exclusively for the jury”).  In Pendleton, the supreme court rejected the defendant’s argument that the supreme court should consider witness credibility in determining the sufficiency of the evidence to uphold a conviction.   The Pendleton court stated:

We acknowledge, as appellant asserts, that the credibility of the state’s witnesses was a significant concern in these cases.  Many witnesses were intoxicated when the shooting occurred.  Gang involvement could have motivated some witnesses to testify falsely or made others reluctant to testify.  Some witnesses may have been threatened or coerced into testifying by the gangs involved in the case.  Given the general confusion, conflicting statements, and biases of the witnesses, there were certainly grounds for the jury to doubt the credibility of the trial witnesses.

 

            The evidence regarding credibility, however, was presented and argued to the jury, and it is for the jury, not this court, to determine the credibility and weight to be given to the testimony of witnesses.

 

706 N.W.2d at 511-12.   As in Pendleton, the credibility of C.E.’s testimony was an issue for the jury, not this court, to resolve.

            Appellant cites inconsistencies in the trial testimony and C.E.’s statement to police.  At trial, C.E. testified that appellant spit on her, and in her statement to police, she said he poured beer on her.  Hanson testified that he did not remember seeing spit on C.E. and that he did not have anything in his report about beer being poured on C.E. but that “[t]here may have been some beer tossed around.”  C.E. testified that when Hanson first came to the apartment, she told him that appellant had grabbed and pushed her.  Hanson did not testify that C.E. reported an assault during that visit.  These differences between C.E.’s trial testimony and her statement to police and Hanson’s recollection of events amount to at most minor inconsistencies.  Minor inconsistencies between a victim’s testimony and prior statements are not grounds for reversal.  State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987), review denied (Minn. June 25, 1987).

            Although appellant cites evidence that is consistent with his theory of the case, our standard of review requires that we view the evidence in the light most favorable to the
verdict.  Viewed in the light most favorable to the verdict, the evidence was sufficient to support appellant’s conviction.

            Affirmed.