This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1288

 

 

State of Minnesota,
Respondent,

vs.

Douglas E. Hughes,
Appellant.

 

 

Filed January 16, 2007

Affirmed

Peterson, Judge

 

 

Hennepin County District Court

File No. 04066842

 

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

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414; and

 

Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, 1600 Pioneer Building, 336 North Robert Street, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, 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 convictions of third-degree criminal sexual conduct and second-degree aggravated robbery, and from an order denying appellant’s petition for postconviction relief, appellant argues that the evidence was insufficient to support the convictions and that the postconviction court abused its discretion by denying his petition without a hearing.  We affirm.

FACTS

            J.P. testified that he was looking for drugs when he encountered appellant Douglas Eugene Hughes, who hollered at him from across the street.  J.P. approached Hughes, and Hughes asked him if he was looking for some drugs.  J.P. indicated that he was, and Hughes asked him if he wanted to smoke some crack with him.  After smoking the crack, Hughes told J.P. that he owed him for the drugs.  J.P. responded that Hughes had asked if he wanted to smoke some crack, not if he wanted to buy some, and that he did not have any money.  Hughes said that he knew that J.P. had money because he saw J.P. at the ATM.  Hughes threatened to kill J.P. if he did not come up with a way to pay for the crack. 

            J.P. also testified that Hughes claimed to have a gun in his pocket and made J.P. feel the object in his pocket, which felt like it could be a gun.  Hughes grabbed J.P. by the arm, took him to an ATM, and told him to figure out how to get some money.  When J.P. failed to get cash from the ATM, Hughes told J.P. that he was going to pay for the crack that he took from him, one way or another, and Hughes pulled J.P. by the arm down an alley.  In a secluded area in the alley, Hughes told J.P. to empty his pockets and give him everything he had.  J.P. gave Hughes his wallet, his social security card, and some papers.  Hughes put J.P.’s wallet in his pocket and then told J.P. to get down on his knees.  J.P. thought Hughes was going to kill him.  While J.P. was pleading for Hughes to not kill him, Hughes unzipped his pants, pulled out his penis, and told J.P. to put his mouth on it.  J.P. felt something hard on his head that he believed to be a gun, and he complied with Hughes’s demand.  Hughes eventually removed his penis from J.P.’s mouth and walked away a short distance.  He told J.P. not to move or he would shoot him.  

            Hughes came back, told J.P. to get up and come with him, and then took J.P. by the arm and told him that he still owed him for the crack.  Hughes took J.P. to a pay phone and told him to call someone who would help him.  J.P. was unable to reach anyone.  Hughes grabbed J.P. by the arm and started walking down the street.  At some point, Hughes stopped to look at something, and J.P. was able to get away; he ran to a convenience store and called the police. 

            When the police arrived at the convenience store, J.P. told an officer what had happened.  The officer had J.P. get into the back of the squad car.  The officer testified that J.P. appeared nervous and scared.  J.P. described Hughes, and as they were driving to the police station, J.P. identified Hughes on the street walking with two other people.  The officer approached Hughes and while frisking him, found J.P.’s wallet, but he did not find a gun. 

            A jury convicted Hughes of third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.344, subd. 1(c), and second-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 2 (2004).  Hughes appealed, and this court granted his motion to stay the appeal to permit consideration of his petition for postconviction relief, which alleged that he received ineffective assistance of counsel.  The district court denied the petition for postconviction relief without holding an evidentiary hearing, and this court reinstated the appeal.

D E C I S I O N

1.         Hughes argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he committed third-degree criminal sexual conduct and second-degree aggravated robbery.  When the sufficiency of the evidence is challenged, 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).  This court assumes that the jury, which exclusively has the function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  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).

            A.         Criminal Sexual Conduct

            “A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor uses force or coercion to accomplish the penetration[.]”  Minn. Stat. § 609.344, subd. 1(c) (2004).  Hughes argues that although the evidence was sufficient to prove that there was sexual penetration, it was insufficient to prove that force or coercion was used to accomplish the penetration because when he was arrested, nothing that resembled a gun or a hard object was found on him or at the scene.  But J.P. testified that he felt something in Hughes’s pocket that felt like it could be a gun and that Hughes claimed that he had a gun.  J.P. also testified that during the assault, he felt something hard on his head that he believed to be a gun.  This testimony, which we assume the jury believed, is sufficient to prove beyond a reasonable doubt that Hughes used force or coercion to accomplish sexual penetration.

            Hughes argues that at the time of the offense, J.P. was a drug addict in the midst of relapse, J.P. gave inconsistent statements about the offense to police and a sexual-assault nurse, and J.P.’s testimony that Hughes dragged him around a main street in Minneapolis without arousing anyone’s suspicion is not credible.  But “the jury determines the credibility and weight given to the testimony of individual witnesses.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The reasons Hughes cites for questioning J.P.’s credibility do not demonstrate that the jury could not find J.P.’s testimony credible.

            B.         Aggravated Robbery

            “Whoever, while committing a robbery, implies, by word or act, possession of a dangerous weapon, is guilty of aggravated robbery in the second degree. . . .”  Minn. Stat. § 609.245, subd. 2 (2004).  Hughes argues that there was insufficient evidence for a reasonable jury to find that he took J.P.’s wallet while implying that he had a dangerous weapon.  But J.P.’s testimony that Hughes claimed that he had a gun and that J.P. felt a hard object that he thought could be a gun was sufficient to support a jury determination that Hughes implied that he had a gun when he took J.P.’s wallet.

2.         Hughes argues that the postconviction court abused its discretion when it dismissed his postconviction petition without an evidentiary hearing.  Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

            “A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.”  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  The facts alleged must be more than bald assertions, conclusory allegations, or unsupported statements.  Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987), review denied (Minn. May 18, 1987).  A postconviction court is not required to conduct an evidentiary hearing when the “petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2004).  A postconviction court’s decision to deny an evidentiary hearing will not be disturbed absent an abuse of discretion.  Flournoy v. State, 583 N.W.2d 564, 568 (Minn. 1998).   

            In his postconviction petition, Hughes claimed that he was denied his right to effective assistance of counsel.  The Sixth Amendment to the United States Constitution guarantees the right to a fair trial, and the right to effective assistance of counsel is an integral part of that right.  State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64 (1984)).  A defendant alleging ineffective assistance of counsel must show that counsel’s performance “‘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.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068).  The reviewing court applies a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. 

            Hughes argues that he did not receive effective assistance of counsel because even though parts of the statement that he gave to the police when he was arrested were inconsistent with his defense theory at trial, his trial counsel failed to challenge the admissibility of the statement.  The postconviction court determined that the statement was not a confession and counsel’s decision to not challenge the admissibility of the statement could have been a matter of trial strategy.  The postconviction court further determined that because the statement would have been admitted even if challenged, defense counsel’s failure to challenge it did not fall below an objective standard of reasonableness and there was no reasonable probability that, but for the failure to challenge the statement, the result of Hughes’s trial would have been different.  Hughes contends that the postconviction court was incorrect when it determined that even if the statement had been challenged, it would have been admitted.  He argues that the statement was inadmissible because it was involuntary.

            “The voluntariness of a statement or confession depends on the totality of the circumstances.”  State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999).  “A statement is involuntary if police actions were so coercive, manipulative and overpowering as to ‘deprive[] [a suspect] of his ability to make an unconstrained and wholly autonomous decision to speak as he did.’”  Id. (quoting State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991)).  Factors to consider when making this determination include (1) the defendant’s age, maturity, intelligence, education, and experience; (2) the defendant’s ability to comprehend; (3) the lack of or adequacy of warnings; (4) the length and legality of the detention; (5) the nature of the interrogation; (6) whether the defendant was deprived of any physical needs; and (7) whether the defendant was denied access to friends.  State v. Jungbauer, 348 N.W.2d 344, 346 (Minn. 1984). 

            The transcript of the statement demonstrates that a police officer informed Hughes that he was going to read him his rights, and Hughes stated, “I know my Miranda rights,  I ain’t rape no boy.”  The officer asked Hughes at least five times if he wanted to talk to him, and Hughes consistently responded that he did not rape anyone.  After Hughes told the officer that he understood all of his rights, the officer asked, “[D]o you want to talk to me, yes or no?”  Hughes responded, “Yeh I’ll talk but damn[.]”  At no time during the interview did Hughes ask for the questioning to stop or request an attorney. 

            Hughes contends that the statement was involuntary because he had been using crack cocaine for three to four days, he had not slept for seven days, and he was coming down from the crack cocaine.  The interviewing officer testified that the interview ended because Hughes was falling asleep and that during the interview he did not know if “[Hughes] was sleeping or just closing his eyes or what he was doing.” 

            The postconviction court found that “[a]t no time during the interview did [Hughes] verbally state he was ‘exhausted’, ‘sleepy’, or ‘did not understand’ what the officer was asking of him.”  The court also found that “[Hughes] responded that he knew his ‘Miranda rights’, calling these rights by [their] proper name.”  The transcript supports these findings, and the findings indicate that Hughes understood why he was being questioned, understood the questions that were asked, and understood that he did not have to answer the questions.  Under these circumstances, Hughes’s assertions that he had not slept for seven days and was under the influence of crack cocaine did not provide a basis for concluding that he did not have the ability to decide whether to speak as he did.  Consequently, the postconviction court did not abuse its discretion when it denied an evidentiary hearing based on its determination that Hughes “presented no facts to demonstrate his trial counsel’s failure to challenge his statement fell below an objective standard of reasonableness” or when it denied the petition for postconviction relief.

            Affirmed.