STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1945

State of Minnesota,
Respondent,

vs.

Isaac Leon Hale,
Appellant.

Filed November 14, 2006

Affirmed in part and reversed in part

Stoneburner, Judge

Winona County District Court

File No. 85KX05357

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

Charles MacLean, Winona County Attorney, Carmaine Sturino, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for respondent)

John M. Stuart, Minnesota Public Defender, Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

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

STONEBURNER, Judge

On appeal from conviction of two counts of felony fifth degree assault, appellant challenges the sufficiency of the evidence, asserts that the district court committed reversible error by instructing the jury not to draw adverse inferences from his failure to testify, and argues that the district court erred by entering two convictions and imposing two sentences for a single behavioral incident. Because the evidence is sufficient to support guilty verdicts on both counts of assault, and the district court’s failure to obtain appellant’s personal consent to the jury instruction was harmless error, we affirm the verdicts. Because both counts arose out of a single behavioral incident, we reverse and vacate the conviction on, and sentence for count II, violation of Minn. Stat. § 609.224, subd. 1(2) (2004).

FACTS

Appellant Isaac Leon Hale was charged with two counts of felony fifth degree assault, one count of gross misdemeanor obstruction of legal process, and one count of petty misdemeanor possession of marijuana. Hale pleaded guilty to the obstruction and possession charges and went to trial on the assault charges.

At trial, Mariea Jones testified that on returning home from running errands on the day in question, she observed Hale, whom she knew as “Doe,” sitting in a parked car outside of her neighbor, C.T.’s house. Jones described “Doe” as C.T.’s boyfriend and the father of C.T.’s child.

Jones testified that immediately after she entered her house, C.T. came to her door screaming, “Let me in! Let me in!” Jones opened the door, and C.T., who appeared frantic and crying, said, “Doe just beat my ass.” While Jones was calling 911, Hale pushed on her door and looked in the windows. C.T. told Jones her baby was with Hale. A short time later, Hale placed the baby in a baby carrier on Jones’s front steps. Jones testified that C.T. screamed, “Don’t open up the door! Don’t open up the door!”

Winona police officer Edward Wooden testified that he was dispatched to a “domestic situation,” and he was the first officer to arrive at the scene. He observed a baby in a car seat carrier on the front steps of Jones’s residence and several people milling about the yard. He was told that Hale had left on foot. Wooden talked to C.T., whom he described as “hysterical . . . crying very loudly, screaming, sobbing.” Wooden testified that C.T. appeared fearful that Hale was going to come back. She provided Hale’s name and description to Wooden, who directed other officers to search for Hale in the area.

Wooden testified, without objection, to statements C.T. made to him at the scene. C.T. told Wooden that Hale had come to see her where she was staying at a friend’s house and asked her “what the f-ck she was doing.” C.T. said Hale had been drinking that day and appeared to be intoxicated. Wanting to avoid an altercation at her friend’s house, C.T. said that she took Hale and their baby out to the car. C.T. told Wooden that when they got into the car, Hale called her a “dumb bitch” and started striking her with his fist. C.T. said that Hale drove around with her in the passenger seat, grabbing her hair, holding her head down, and hitting her until she escaped by jumping out of the vehicle, without the baby, when Hale pulled in front of her apartment. C.T. told Wooden that she had been struck on the face, the back of her head, and her neck and complained of pain in those areas. Wooden testified that there was some discoloration on the right side of C.T.’s face where she was complaining of pain, but it was difficult to determine whether there was actual bruising.

Hale was apprehended a few blocks from the scene. Wooden testified that when officers brought Hale to Jones’s home for identification, C.T. refused to go out and identify Hale because she said she did not want him to see her.

The testimony of officers Rasmussen, Bittle, and Anderson corroborated Officer Wooden’s testimony. Bittle also testified that he located Hale a few blocks from C.T.’s apartment. Bittle asked Hale to talk to him, but Hale continued walking. When Bittle followed, Hale swore at Bittle and said he had not done anything wrong and did not want to talk. Bittle and another officer arrested Hale and drove him back to Jones’s house where Jones identified him. C.T.’s keys were in Hale’s possession at the time of his arrest. Rasmussen testified that after Hale was arrested, C.T. was no longer afraid and said that she was happy that Hale was not coming back.

At trial, C.T., who testified under subpoena, gave a very different version of what happened. C.T. testified that she and Hale spent much of the day in question together. C.T. testified that later in the day, while Hale was visiting a friend nearby, she received a phone call from another woman Hale was seeing. C.T. testified that she got into her vehicle with her infant son and went to confront Hale about the phone call. C.T. testified that she argued with Hale about the phone call and that she slapped him. She testified that she then went to Jones’s apartment and had Jones call the police because she wanted Hale to leave her house. C.T. denied that Hale was in the car when she went to Jones’s apartment. She testified, “I fabricated more than what it needed to be. I knew what I was doing because I needed him to get away from me. I was fed up.” C.T. testified that her hysteria during Jones’s call to 911 was because she was hurt and upset about Hale’s relationship with the other woman. C.T. said that she lied to officers when she told them that Hale grabbed her hair and began to hit her. She said, “I wanted them to take him to jail to get the hell away from me.” C.T. denied that she had any bruising on her face, and she denied that Hale struck her or threatened her that day.

The jury convicted Hale of both counts of assault. The district court entered convictions on both counts and sentenced Hale to concurrent stayed sentences of a year and a day and 15 months with conditions. This appeal followed.[1]

D E C I S I O N

I. Sufficiency of evidence

Because C.T. recanted her allegation that Hale assaulted her and there were no other witnesses to the assault, Hale argues that the state failed to prove beyond a reasonable doubt that he committed the assaults charged, and his convictions must be reversed.

In considering a claim of insufficient evidence, this court’s review is limited to a careful 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). The reviewing 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 when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke,295 N.W.2d 580, 584 (Minn. 1980). 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 the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

A person is guilty of fifth-degree assault if he acts with intent to cause another to fear immediate bodily harm or death, or if he intentionally inflicts or attempts to inflict bodily harm on another. Minn. Stat. § 609.224, subd. 1(1), (2) (2004). Hale asserts that the state’s case consisted only of circumstantial evidence, requiring stricter scrutiny than convictions based in part on direct evidence. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (holding that a conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence”). But C.T.’s statements made to Jones and to the police were admitted as substantive evidence, either as excited utterances or unobjected-to hearsay, and constitute direct evidence that Hale both threatened and harmed her. See State v. Jackson,655 N.W.2d 828, 833 (Minn. App. 2003) (stating that hearsay admitted into evidence without objection is substantive evidence). Furthermore, the statements C.T. made at the scene were corroborated by Jones and the police officers. Despite Hale’s argument that C.T.’s “trial testimony completely vitiated the value of her unsworn statements to her neighbor and the police,” it is clear from the verdict that the jury credited C.T.’s statements made at the time of the incident and disbelieved the version of events she testified to at trial. The evidence is more than sufficient to support the verdict.

II. No-adverse-inference instruction

Hale argues that the district court committed reversible error by instructing the jury not to draw any adverse inference from his failure to testify. The record reflects that Hale’s trial counsel specifically requested the district court to give this instruction, but the record does not show that Hale personally consented to the instruction.

Because Hale did not object to the instruction during the trial, we review this issue under the three-prong test for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (noting the United States Supreme Court requirement that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights). In this case, the state agrees that giving the instruction without making a record of Hale’s permission was error. See State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1998) (holding that it is error to give a jury instruction on a defendant’s right not to testify without a defendant’s permission on the record). But we have previously held the giving of this instruction to be harmless when an appellant has not met “his heavy burden of showing that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict.” State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).

Hale argues that because the central issue in the case was credibility, the error in his case is not harmless, citing State v. Duncan, in which this court observed that “in light of the fact that the central issue in the case was the credibility of [claimants’] statements, the jury instructions may have had the deleterious effect of emphasizing [defendant’s] failure to take the witness stand and deny the allegations.” 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000). In Duncan, we concluded that giving the no-adverse-inference instruction was not reversible error, but the matter was reversed based on the cumulative effect of trial errors. Id. Here, Hale’s attorney specifically requested the instruction both in writing and orally on the record, and C.T. herself denied the allegations. Based on the entire record, we conclude that Hale has not met the burden of showing that the instruction had a significant effect on the verdict.

III. Single behavioral incident

Hale correctly argues that the two counts of felony fifth-degree assault arose out of a single behavioral incident and that Minn. Stat. § 609.04 (2004) precludes entry of conviction and sentencing on both counts. The state concedes that the district court erred by entering a conviction and imposing a sentence on each count. We therefore reverse and vacate Hales’ conviction of and sentence for count II, assault in the fifth degree in violation of Minn. Stat. § 609.224, subd. 1(2).

Affirmed in part and reversed in part.

[1] Hale does not challenge his convictions or sentences for the obstruction and possession charges and does not challenge the use of prior convictions to enhance the assault charges to felonies.