This opinion will be unpublished and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

A05-1509

 

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Wayne Allers,

Appellant.

 

 

Filed August 22, 2006

Affirmed

Lansing, Judge

 

 

Otter Tail County District Court

File No. K4-04-1972

 

 

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

 

David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414(for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Robert Allers appeals from his convictions of aiding and abetting theft and second-degree assault, arguing that the state failed to adequately rebut his duress defense and that he received ineffective assistance of counsel because his attorney did not obtain, on the record, a waiver of his right to testify.  Because we conclude that the state presented sufficient evidence to establish that Allers’s participation in the crimes was not the product of duress and that the absence of an on-the-record waiver of defendant’s right to testify does not amount to ineffective assistance of counsel, we affirm.

F A C T S

            A jury found Robert Allers guilty of aiding and abetting theft and assault for his participation in a series of events that began at the Purple Palace in Vining, Minnesota, on October 22, 2004.  Shortly before the Purple Palace opened for business on that day, Glenn Whiting, one of the owners, came into the bar and restaurant to prepare the bank deposit for the off-sale receipts.  While Whiting was counting the money for deposit, three men separately approached him. 

The first man, later identified as Jeremiah Raper, asked to use the bathroom.  Within a few minutes, a second man, later identified as Gordon Bell, approached Whiting and asked for directions.  A third man, Robert Allers, entered the off-sale area to ask Whiting about a vehicle for sale.  Allers was a previous Purple Palace customer who had been at the establishment on mornings when Whiting, consistent with his established pattern, counted the receipts and prepared the bank deposit in the off-sale area.  After Whiting had finished preparing the deposit, Raper returned to the off-sale area and told Whiting he wanted to buy an eighteen-pack of beer, which was kept in the cooler.  While Whiting was retrieving the beer, Raper grabbed the bank deposit from the counter and fled.

            Whiting’s wife saw Raper jump into the passenger side of a car and noted the direction in which the car was traveling.  Whiting told his wife to call 911, got into his van, and pursued the car in a high-speed chase.  When Whiting caught up with the car, he pulled alongside it.  Allers, who was driving the car, moved it toward the van and forced the van off the road into a ditch.  The car stopped.  Raper, swinging a hammer, got out of the front-seat passenger side and broke one of the van’s windows.  Raper then returned to the car, which continued a short way down the road before pulling over.  After the car stopped, Raper left the car and ran into the nearby woods.  Allers and a second passenger, Bell, then followed Raper into the woods.

            Police responding to the 911 call located Whiting and secured the area where the three men had run into the woods.  After four hours of searching, they found Raper and Allers walking across a field bordering the woods.  They told police that they had friends in the area and were out for a walk.  In a later search through the woods, police found cash rolled up into a ball.  The Whitings found the deposit bags and checks in a ditch along the roadway.  

The state charged Allers with aiding and abetting in the commission of theft and two counts of second-degree assault.  Allers did not testify at trial.  He relied on the defense of duress and requested that the district court instruct the jury on the defense.  The court included the duress instruction in its charge to the jury.  The jury returned a guilty verdict on aiding and abetting theft and second-degree assault.  Allers appeals arguing that the evidence is insufficient to rebut his duress defense and that he received ineffective assistance of counsel because his attorney did not obtain, on the record, a waiver of Allers’s right to testify.

D E C I S I O N

I

To establish that a defendant aided and abetted the commission of a crime, the state must demonstrate “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation omitted).  Although Allers does not dispute that he aided and abetted the commission of the theft and the assault, he contends that he did so under duress.  The defense of duress requires that the defendant “was under a present reasonable apprehension of instant death should he refuse to participate in the crime,” that his “fear of instant death must have continued throughout the commission of the crime,” and that he could not safely withdraw from the crime.  State v. Charlton, 338 N.W.2d 26, 31 (Minn. 1983).

Aiding and abetting requires specific intent.  See Minn. Stat. §§ 609.02, subd. 9 (explaining when criminal intent is element of crime), .05, subd. 1 (specifying that aiding and abetting includes intent element) (2004); see also Charlton, 338 N.W.2d at 30 (specifying that aiding and abetting requires specific intent).  When a defendant raises duress as a defense to a specific-intent crime, he is not obligated to bear the burden of persuasion for the defense because duress negates the intent element of the crime, and the state has the constitutional obligation to prove each element of the crime.  State v. Hage, 595 N.W.2d 200, 204-05 (Minn. 1999).  The defendant has only the burden of producing “sufficient evidence on duress to make the defense one of the issues of the case.”  Charlton, 338 N.W.2d at 30.  After this initial showing by the defendant, the burden then shifts to the state to prove beyond a reasonable doubt the lack of duress.  Id. at 30-31; Hage, 595 N.W.2d at 206. 

In determining whether the state has presented sufficient evidence to establish the intent element of the offense and rebut the defense of duress, we examine “whether the 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. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We view the evidence in the light most favorable to the conviction and assume that the jury believed the witnesses’ testimony that supported the verdict and disbelieved any contradicting evidence.  State v. Henderson, 620 N.W.2d 688, 704-05 (Minn. 2001).

Allers met his initial burden of providing sufficient evidence of duress to make the defense an issue in the case.  The record shows that Allers initially told investigating officers that he participated in the theft and assault only because Bell threatened him with a hammer.  The burden then shifted to the state to disprove Allers’s duress defense. 

The state introduced evidence that Allers had been friends with both Raper and Bell and that he was familiar with the Whitings’ routine for preparing the morning deposit of off-sale receipts.  This circumstantial evidence casts doubt on the reasonableness of Allers’s alleged apprehension of force and could have persuaded the jury that he was not participating solely because he feared for his life. 

The record also includes evidence that Allers’s fear did not continue throughout the commission of the crime and that he had several opportunities to safely withdraw.  Even if he initially drove away from the Purple Palace and aggressively tried to drive Whiting’s van off the road because he felt threatened, he had the opportunity to escape when he stopped the car to permit Raper to attack Whiting’s van with the hammer.  Because the hammer was no longer in the car, he could have fled from the car or driven away rather than wait for Raper to return to the car.  The evidence is undisputed that he stopped the car a second time, followed Raper into the woods, and remained with Raper for four hours; neither Bell nor the hammer was present at this time.  This evidence indicates that Allers had sufficient time to escape from any threatening situation, that he was not deterred by any threat that Bell posed, and that his decision to remain with Raper while they attempted to hide the stolen money was not because he feared imminent assault with the hammer.

Based on the evidence in the record, the jury could reasonably conclude that Allers was not under a present, reasonable apprehension of death, that his fear did not continue throughout the commission of the crime, and that he could have safely withdrawn from the crime.  We therefore conclude that the state offered sufficient evidence to disprove the elements of duress and permit the jury to reasonably conclude that Allers was guilty of the charges.

II

            A claim of ineffective assistance of counsel must ordinarily be raised in a postconviction proceeding rather than on direct appeal.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  A reviewing court may, however, consider an ineffective-assistance-of-counsel claim when the record is sufficient to determine the issue without additional factual findings.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001). 

A defendant has the burden of establishing that his attorney’s representation “fell below an objective standard of reasonableness” and that a reasonable probability exists that, but for the attorney’s error, the result of the proceeding would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).  To prevail on a claim of ineffective assistance of counsel, a defendant must overcome the strong presumption that his attorney’s performance was “within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).

            Allers asserts that he received ineffective assistance of counsel because his attorney failed to secure an on-the-record waiver of his right to testify.  Both the United States and Minnesota Constitutions protect a defendant’s right to testify.  State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998).  This right is a personal right and may only be waived by the defendant, not his attorney.  State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979).  The waiver must be both knowing and voluntary.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).  Although district courts often confirm on the record that the defendant’s waiver of his right to testify is voluntary and knowing, the district court is not obligated to obtain an on-the-record waiver.  Id. at 751-52.  Unless the record suggests otherwise, we “must presume that the decision not to testify was made by the defendant voluntarily and intelligently.”  State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). 

            The record does not contain any discussion of Allers’s waiver of his right to testify.  Nor does anything in the record suggest that his attorney deprived him of the opportunity to testify.  In the absence of any reference to Allers’s right to testify, we presume that his failure to testify represents a voluntary and intelligent waiver of this right.

            On this record, Allers’s claim of ineffective assistance of counsel fails for three reasons.  First, Allers’s failure to testify is presumed to be a valid waiver and does not demonstrate that his attorney’s representation fell below an objective standard of reasonableness.  Second, in the absence of any obligation to secure a waiver on the record, his attorney’s failure to do so does not represent ineffective assistance.  Finally, Allers has failed to demonstrate that, even if his attorney’s representation was ineffective, the result of the proceeding would have been different.  No evidence suggests that if Allers had waived his right on the record, the result would have changed.  Allers does not assert that he would have testified; he simply claims that his testimony was necessary to his defense.  But the jury had evidence of his claimed defense, and Allers has not demonstrated that his testimony could have altered the jury’s decision.  Allers has therefore failed to establish ineffective assistance of counsel.

            Affirmed.