This opinion will be unpublished and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

A05-674

 

State of Minnesota,

Respondent,

 

vs.

 

Linda Beth Atlas,

Appellant.

 

Filed January 9, 2007

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 03056529

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;

 

Ryan Joseph Wood, 3300 Edinborough Way, Suite 600, Edina, MN 55435; and

 

Thomas F. De Vincke, Bonner & Borhart, LLP, 220 South Sixth Street, Suite 1950, Minneapolis, MN 55402 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges her convictions of obstructing legal process, assault, and disorderly conduct, alleging evidentiary and procedural errors, inadequate jury instructions, and insufficiency of the evidence to support the conviction of obstructing legal process.  Because appellant has failed to demonstrate prejudicial error and because the evidence supports her conviction of obstructing legal process, we affirm.

FACTS

 

            A jury found appellant Linda Beth Atlas guilty of obstructing legal process, assault, and disorderly conduct stemming from an incident at a Target store in Edina on August 7, 2003.

            Trial testimony showed that Atlas went to the store to return some merchandise and to redeem a one-dollar coupon.  A Guest Services employee told another employee that Atlas could not redeem the coupon but would have to speak with a manager.  Atlas claimed this employee called her a “bitch.”

            Atlas located a manager and complained about the Guest Services employee and said she wanted to redeem the coupon.  As the manager conversed with her, Atlas became loud and boisterous, waved her arms, and used obscenities.  A security guard asked her to leave the store and she directed angry remarks toward him.  The incident escalated and caused several checkout lanes to cease operations while workers and customers observed.

            Various employees gathered around.  At one point Atlas took a pen from her purse and started to take down employees’ names.  She continued to be loud and obnoxious and she spit twice on the security guard.  He then informed her that he was making a citizen’s arrest and he attached one handcuff to her wrist.  Atlas began screaming and stabbed the security guard twice in the forearm with her pen.  The guard was able to complete the handcuffing just before an Edina police officer arrived.

            The officer heard Atlas loudly yell obscenities, and he observed two red puncture marks on the security guard’s arm.  When the officer tried to escort Atlas to a store office, she resisted, leaned away from him and dragged her feet.  He eventually placed her in a wristlock and took her into the office.

            Atlas’s testimony was different.  She claimed that she wanted to leave the store but that the employees circled around her and would not let her do so.  She said she felt tense and frightened.  She stated that when the security guard handcuffed her, she became scared.  She denied spitting on the guard but rather said she blew air in his face.  She denied stabbing him with a pen, and she said he attacked her but she was not able to fight back.

D E C I S I O N

Mistrial Motion and Discovery Violations

 

            Atlas first argues that the district court abused its discretion by denying her motion for a mistrial because of a discovery violation at trial.  This court reviews a denial of a mistrial motion under an abuse-of-discretion standard.  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998).  When ruling on a motion for a mistrial based on a discovery violation, the district court must consider the reason for the nondisclosure, the extent of prejudice resulting from the nondisclosure, and the feasibility of rectifying any prejudice by a continuance.  Id.at 53. 

            During cross-examination of the first police officer on the scene, defense counsel asked why the police had not recovered the pen allegedly used to stab the security guard.  When the officer stated that the second officer to arrive had the pen and was waiting to testify, counsel moved for a mistrial.  Defense counsel argued that the discovery reports did not list the pen.  The district court denied the mistrial motion but precluded the introduction of the pen into evidence.

            The state concedes “a technical violation of Rule 9.01” but argues that the violation was “inadvertent and non-prejudicial.”

            Atlas claims she was prejudiced because defense counsel asked a question about the pen that she would not have asked had she known that the police had possession of the pen.  But she fails to show, rather than merely allege, how the asking of the question prejudiced her.  There was no dispute that Atlas took a pen from her purse to write names.  Several witnesses testified to having seen the pen.  Atlas does not contend that she would have tested the pen to attempt to verify the allegation that it punctured the guard’s arm. Thus, even if there was a discovery violation, we fail to see the prejudice of it, and the court properly exercised its discretion in excluding the pen from evidence.

Jury Instructions

            Atlas argues that the district court erred in failing to give a self-defense instruction to the jury.  She contends that self-defense applies to all three charges of disorderly conduct, assault, and obstructing legal process.  Appellate courts will not reverse a district court’s decision as to a jury instruction unless the instruction constituted an abuse of discretion.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  District courts are allowed considerable latitude in selecting the language in jury instructions.  Id.  Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial.  Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

            The district court informed counsel that Atlas would be entitled to a self-defense instruction on the assault charge if the facts so warranted.  But the court ruled that, because Atlas testified that she used no force to defend herself and did not stab the security guard, the facts did not support the giving of a self-defense instruction.

            A self-defense instruction is appropriate when the evidence shows that a defendant has used reasonable force to resist an offense being committed against the defendant.  10 Minnesota Practice, CRIMJIG 7.06 (2006); State v. Johnson, 310 N.W.2d 96, 97 (Minn. 1981).  But when the defendant denies having used any force and so testifies, there is no basis for a self-defense instruction.  The court did not err in refusing to give the instruction as to the assault charge.

            As to the disorderly conduct charge, self-defense applies only if the claimed aggressive actions toward the accused are considered an offense of a physical nature, carrying the potential to cause bodily harm, that is, an offense against the person . . . .”  State v. Soukup, 656 N.W.2d 424, 429 (Minn. App. 2003) (quotation omitted).  Once again, according to Atlas in her sworn testimony, she did not use force of any sort against anyone in this incident.  She had the burden of presenting evidence that would support her defense.  State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985).  She did not meet her burden.

            Finally, Atlas has failed to show any authority that self-defense is available to a charge of obstructing legal process or that she has any right or privilege to resist an ostensibly lawful arrest.

Were-They-Lying Questions

            Atlas next argues that she was denied a fair trial when the prosecutor committed misconduct by asking her to comment on the truthfulness of the state’s witnesses during her cross-examination.  “A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt.”  State v. Lasnetski, 696 N.W.2d 387, 396 (Minn. App. 2005).  An error is harmless beyond a reasonable doubt only if the verdict rendered was “surely unattributable to the error.”  State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005) (quotation omitted). 

            Atlas urges this court to reverse the verdicts because the prosecutor asked her whether witnesses who testified that she had spit on the security guard and screamed loudly during the incident were lying about their recollection of the events.  Atlas bases her argument on State v. Morton, which clarified the rule that “were they lying” questions are usually improper as they lack probative value and do nothing to assist the jury in assessing witness credibility.  Id.at 233-35.  Morton held that “were they lying” questions are appropriate in a purely factual context, but not “whether anyone . . . intended to perpetuate a falsehood.”  Id.at 234. 

            Since the “were they lying” questions asked Atlas whether she believed that the witnesses in question were perpetuating a falsehood in their testimony, we hold that they were improper. 

            When there has been no objection to such questions, the standard of review is that described in State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (holding that “the burden would continue to be on the nonobjecting defendant to demonstrate both that error occurred and that the error was plain.”).  But defense counsel did object here, and, thus, we apply the standard in State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).

            In Swanson, the supreme court streamlined the approach to questions of misconduct, holding that

[w]hen reviewing claims of prosecutorial misconduct, we reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.  If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt.  We will find an error to be harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.

 

Id.(quotations and citations omitted). 

          The evidence shows that the error was harmless.  Throughout her testimony, Atlas denied committing the alleged offenses, claiming that she never assaulted the security guard.  When asked about the veracity of the witnesses, her answers were vague but consistent with her testimony that she did not stab or spit at the guard.  If the state had not asked these questions, there’s no reasonable likelihood that the jury verdict would have been different.  In Swanson,the court held that the prosecutor’s misconduct during the rebuttal closing argument did not impair the defendant’s right to a fair trial, noting that the impermissible questions and comments were “confined to roughly two pages of transcript of a record comprising over 1,200 pages.  More importantly, the state’s case was very strong.”  Id.   Here, the prosecutorial misconduct is confined to a few questions within approximately 570 pages of transcript of a three-day trial in an even more extensive record.  More importantly, the evidence against Atlas, corroborated by several witnesses, was very strong.  Atlas denied the incident, while every other witness substantiated the allegations and contradicted Atlas’s interpretation of the events.   

Sufficiency of Evidence - Obstructing Legal Process

 

            Atlas argues that the state’s evidence was insufficient as a matter of law to sustain her conviction of obstructing legal process.  She does not contest the credibility of the witnesses and concedes that, at least for this argument, the first police officer’s testimony was true; rather, she states that the testimony does not support her conviction.  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 a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  

            The fact-finder has the exclusive function of judging witness credibility and weighing the evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  We 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).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

            Here, the jury convicted Atlas of obstructing legal process under Minn. Stat. § 609.50, subd. 1(1) (2002), which states that a defendant is guilty of that crime when she intentionally “obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense.”  Atlas argues that this issue must be given de novo review because case law has altered the statute to require that that an individual “not merely interrupt[] an officer but substantially frustrat[e] or hinder[] the officer in the performance of his duties.”  State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988). 

            However, de novo review is unnecessary because the statute is not ambiguous and there is no issue of statutory construction for this court to analyze.  “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous.  A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616, N.W.2d 273, 277 (Minn. 2000) (quotation and citations omitted).  The case that Atlas cites to support a de novo review upheld the statute on constitutional grounds and held that it was neither vague nor overbroad.  Krawsky, 426 N.W.2d at 878-79.  By adding the language questioned by Atlas, the Krawsky court attempted to specify that the statute was aimed at physical and not merely verbal “interruptions” of a peace officer’s duty, while in no way stating the language in question was ambiguous.  Id.at 877.

            Even though an analysis of what type of evidence is sufficient to convict under this statute was subject to de novo review in State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001), there is no evidentiary question before this court, as there was physical conduct sufficient that a jury could reasonably conclude the Atlas was guilty of the charged offense.  Atlas does not dispute the testimony of one of the officers that Atlas physically obstructed his ability to perform his job.  And she concedes that she pulled away while he was escorting her, that he was forced to place her in a wristlock so that she would comply with his requests, and that he essentially had to hold her up as she was using her body weight to prevent him from walking to the security office.  These actions constitute physical interference as prohibited by the statute.  Because this court must defer to a jury’s finding of witness credibility, and since overturning a jury’s verdict is a heavy burden, the determination that Atlas obstructed legal process is affirmed.    

Ineffective Assistance of Counsel

 

            Atlas argues in a pro se brief that she was denied a fair trial because she was denied effective assistance of counsel.  To show ineffective assistance of counsel, an appellant “must affirmatively prove that [her] counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)) (citation omitted). 

Atlas argues that her trial counsel (1) lacked attention to detail as to supposed Miranda violations; (2) failed to adequately cross-examine witnesses; (3) failed to  properly enlarge photographs of the alleged victim; (4) failed to properly advise her of the right not to testify; (5) failed to call exculpatory witnesses; (6) failed to impeach testimony that was harmful to her case; (7) failed to return phone calls; and (8) failed to properly question her and lead her testimony, thus omitting crucial evidence.  Generally, appellate courts give particular deference to counsel’s decisions regarding trial strategy.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (appellate court, having benefit of hindsight, should not review trial tactics; trial counsel must be given flexibility to represent client to the fullest extent possible). 

Most of the issues that Atlas raises as error on behalf of trial counsel relate to trial strategy, e.g., the direction of Atlas’s testimony, cross-examination of witnesses, evidentiary presentation, and scope of argument.  “Which witnesses to call at trial and what information to present to the jury” are within the discretion of trial counsel and will not be reviewed on appeal.  Jones, 392 N.W.2d at 236.  Also, Atlas completely fails to establish that counsel’s representation fell below an objective standard or that it in any way affected the outcome of the case.  She recites numerous examples of what she considers to be errors in her representation without explaining how they affected the jury’s decision; therefore she fails to show ineffective assistance of counsel.

            Affirmed.