This opinion will be unpublished and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

A05-1741

 

State of Minnesota,

Respondent,

 

vs.

 

Harvey Lee Eason,

Appellant.

 

Filed January 9, 2007

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. K2-04-3438

 

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

 

James Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Bradford Colbert, Legal Assistant to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Harvey Lee Eason challenges the sufficiency of evidence and the admission of Spreigl evidence during a nine-day bench trial that resulted in his conviction of attempted murder in the first degree, aiding and abetting; conspiracy to commit murder in the first degree; and assault in the first degree, aiding and abetting.  We affirm.

D E C I S I O N

I.

            Appellant alleges that the state presented evidence that was not sufficient to sustain his convictions.  We disagree. 

            We review a claim of insufficiency of evidence through “a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the fact-finder to reach the verdict that it reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the fact-finder 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 case depends on conflicting testimony.”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  We will not disturb the verdict if the fact-finder, 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 aids and abets attempted murder in the first degree if he intentionally aids, advises, hires, counsels, or conspires with or otherwise procures another to cause the death of a human being with premeditation and with intent to effect the death of the person or of another.  Minn. Stat. §§ 609.05, subd. 1, 609.185(a)(1) (2004).  

            A person is guilty of conspiracy to commit murder in the first degree if he “conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act,” Minn. Stat. § 609.175, subd. 2(2) (2004), where the crime is to “cause[] the death of a human being with premeditation and with intent to effect the death of the person or of another,” Minn. Stat. § 609.185(a)(1).

            A person is guilty of assault in the first degree, aiding and abetting, if he “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime,” Minn. Stat. § 609.05, subd. 1, where the crime is to “assault[] another and inflict[] great bodily harm,” Minn. Stat. § 609.221, subd. 1 (2004). 

            Assuming the district court believed the state’s witnesses and disbelieved appellant’s witnesses, we conclude that the state presented sufficient evidence to convict appellant on all counts.   

            Appellant, suspecting victim Lee Murray of stealing appellant’s property, arranged through a series of pages and phone calls for Murray to wait at a specific street corner for appellant to arrive.  After a furtive conversation between appellant and Richard Lindorff, the uncle of a man Murray had killed eight years earlier, Lindorff handed his telephone to appellant who returned a page from Murray at approximately 1:30 a.m. on August 11, 2004.  Appellant had approached both Murray and Murray’s brother regarding the suspected theft.  Phone company records and witnesses’ testimony confirm that the call came from Lindorff’s home.

            Evidence in the record, including the testimony of a participant, indicates that appellant, Lindorff, and a third man left Lindorff’s St. Paul home and drove to Eagan, where Murray saw appellant’s car cruise slowly past on an adjacent street.  Within a few minutes, Lindorff appeared on foot and shot Murray several times.  Lindorff retreated on foot, climbed back into appellant’s car, and appellant drove away.  A 911 call was placed at approximately 2:00 a.m.

            At around 2:20 a.m., a Woodbury police officer noticed appellant’s car at a gas station near the highway.  After determining that the person he was searching for was not in the vehicle, the policeman let the vehicle go.  He described appellant and his two passengers as the car’s occupants.  Appellant never appeared to pick Murray up, as he had told Murray and Murray’s cousins that he would. 

            We conclude that this evidence is sufficient to sustain appellant’s convictions on all three counts. 

II.

            Appellant asserts that admission of Spreigl evidence was improper.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

            Evidence of other crimes or bad acts is not admissible to prove that a criminal defendant acted in conformity with his character, but it may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490-91, 139 N.W.2d 167, 169, 171-72 (1965).

            Before admitting Spreigl evidence, the district court must first determine that (1) the state gave notice of its intent to admit the evidence; (2) the state clearly indicated what it would offer the evidence to prove; (3) there is clear and convincing evidence that the defendant participated in the prior act; (4) the evidence is relevant and material to the state’s case; and (5) the evidence’s potential to prejudice the defendant must not outweigh the probative value of the evidence.  Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005).  “When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

            Here, appellant challenges only whether the Spreigl evidence of a prior assault was clear and convincing, arguing that the testimony came from only one witness, who was convicted as an accomplice in the assault.  “The clear and convincing standard is met when the truth of the facts sought to be admitted is ‘highly probable.’”  Id. 

            Uncorroborated testimony of a single witness can meet the standard of proof of clear and convincing evidence.  Id. (“We see no reason why a victim’s Spreigl testimony must be corroborated in order to meet the clear and convincing standard.”).    

            We must assume that the district court found the sole witness credible and must only disturb this judgment for a clear abuse of discretion.  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (“The weight and credibility of the testimony of individual witnesses is for the [fact-finder] to determine.”).  Here, the district court took the appropriate concerns into account when considering whether to admit the Spreigl evidence.  We also note that the effect of Spreigl evidence is less prejudicial where, as here, it is admitted in a bench trial.  State v. Caulfield, 722 N.W.2d 304, 315 n.8 (Minn. 2006).  Appellant also alleges that because the single witness was an accomplice in the incident about which he testified, his testimony is improper.  But although under Minn. Stat. § 634.04 (2004) a conviction cannot be had upon the uncorroborated testimony of an accomplice, no such limitation applies regarding the admission of Spreigl evidence based on accomplice testimony.

            Testimony of a single witness can constitute clear and convincing evidence under Minnesota law, and whether that evidence rose to the level of clear and convincing rests within the judgment of the district court.  Moore, 438 N.W.2d at 108.  We conclude that the district court did not abuse its discretion by admitting the evidence.

III.

In his pro se brief, appellant argues that his trial counsel was ineffective because she failed to:  (1) subpoena a witness; (2) make proper objections; (3) gather certain documents.  To succeed on an ineffective assistance of counsel claim, appellant must generally show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s unprofessional errors.  State v. Cram, 718 N.W.2d 898, 906 (Minn. 2006) (citing and quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).  The court need not address both prongs if one is determinative.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).  And we apply a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002). 

            Here, the actions of his trial counsel that appellant complains of are tactical decisions best left to the discretion of trial counsel and not reviewed with the benefit of hindsight.  State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003); see also State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006) (stating that decisions regarding “[w]hat evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel”); Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (stating that trial strategy includes the extent of counsel’s investigation, whether to hire an investigator, whether to interview prospective witnesses, and whether to call certain witnesses).  We conclude that appellant has failed to establish ineffective assistance of counsel. 

            Finally, we have reviewed other arguments made by appellant in his pro se brief and conclude that they are without merit.

            Affirmed.