This opinion will be unpublished and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

A05-2211

 

State of Minnesota,

Respondent,

 

vs.

 

Dean Van Wert,

Appellant.

 

Filed March 13, 2007

Affirmed

Kalitowski, Judge

 

Becker County District Court

File No. T9-05-221

 

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

 

Joseph Evans, Becker County Attorney, Gretchen D. Thilmony, Assistant County Attorney, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)

 

Dean Van Wert, 1312 Lake Avenue, Detroit Lakes, MN 56501 (pro se appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Dean Van Wert challenges his conviction of fifth-degree assault.  He argues that:  (1) Minnesota courts do not have jurisdiction over domestic disputes that occur on the White Earth Reservation; (2) his conviction was the result of discrimination; (3) evidence of a prior bad act was erroneously admitted; and (4) he received ineffective assistance of trial counsel.  We affirm.

D E C I S I O N

I.

            Appellant argues that Minnesota state courts do not have jurisdiction over domestic assaults that occur on the White Earth Reservation.  We disagree.

            Appellant questions subject matter jurisdiction for the first time on appeal, but it is properly raised at any time.  Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995).  “The determination of subject-matter jurisdiction is a question of law, which this court reviews de novo.”  State v. Larose, 673 N.W.2d 157, 161 (Minn. App. 2003), review denied (Minn. Aug. 17, 2004).  Appellant was convicted of the crime of fifth-degree assault pursuant to Minn. Stat. § 609.224 (2004).

“State court jurisdiction over matters involving Indians is governed by federal statute or case law.”  State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997).  But if Congress expressly provides, state laws may be applied to tribal Indians on their reservations.  Id.  “In Public Law 280, Congress granted Minnesota broad criminal and limited civil jurisdiction over all Indian country within the state, with the exception of the Red Lake Reservation.”  Id. 

“In order for a state law to be fully applicable to a reservation under the authority of Public Law 280, it must be a criminal law,” id. at 729, but “the mere presence of a criminal penalty” does not ensure applicability.  State v. Busse, 644 N.W.2d 79, 91 (Minn. 2002).  Because “[t]here is no bright-line rule which separates a criminal law from a civil law,” we apply a two-step test to determine whether a law is “civil/regulatory” or “criminal/prohibitory.”  Stone, 572 N.W.2d at 729-30; see also Busse, 644 N.W.2d at 83. 

The first step is to determine whether to analyze the broad or narrow conduct.  Busse, 644 N.W.2d at 83.  Unless the narrow conduct presents substantially different or heightened public policy concerns, we focus on the broad conduct.  Id.  Here, appellant was convicted of assault in the fifth degree, defined as whoever “(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.”  Minn. Stat. § 609.224, subd. 1 (2004).  Here, we will analyze the already broad category of assault. 

The second step is to determine whether the conduct is “generally permitted but subject to regulation, or if it is generally prohibited.”  Busse, 644 N.W.2d at 83.  Assault is generally prohibited because it “directly threatens physical harm to persons or property or invades the rights of others,” thereby violating public policy.  Stone, 572 N.W.2d at 730 (providing a nonexclusive list of factors to consider when determining whether the challenged behavior “breaches . . . the social fabric [and] threaten[s] grave harm to persons or property”).

We conclude that Minn. Stat. § 609.244, subd. 1, is a criminal/prohibitive law applicable to appellant pursuant to Public Law 280.  Therefore, the district court had subject matter jurisdiction in this case. 

            Because Minnesota has subject matter jurisdiction over assaults that occur on the White Earth Reservation, the district court had jurisdiction here.

II.

            Appellant argues that he was wrongfully convicted on the basis of his gender because an earlier domestic assault case in which appellant was the victim and appellant’s wife was the aggressor was dismissed.

            In a discriminatory enforcement claim, appellant must establish a prima facie case showing:

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right. 

 

Thul v. State, 657 N.W.2d 611, 616 (Minn. App. 2003), review denied (Minn. May 28, 2003).  Selection by sex is also impermissible.  State ex rel. Forslund v. Bronson, 305 N.W.2d 748, 750 (Minn. 1981) (holding that classification based on sex must “serve important governmental objectives and must be substantially related to achievement of those objectives”). 

            Here, appellant fails to make a prima facie case because he has not compared himself to a similarly situated person.  Appellant’s wife, although allegedly charged with a crime against appellant, was charged years earlier under different circumstances.  Because appellant has failed to make a prima facie showing of discriminatory enforcement the district court did not err. 

            Although appellant also alleges that his conviction was based on racial discrimination, he does not support his claim with argument or authority.  Finding no obvious error, we decline to speculate regarding appellant’s unsupported assertion.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 771 (Minn. App. 1997) (“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”).

III.

            Appellant asserts that the district court erred by admitting testimonial and photographic evidence involving a 1998 incident between appellant and his wife.  We disagree.

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  The challenged evidence was admitted by the district court pursuant to Minn. Stat. § 634.20 (2004) which states:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

 

Here, the district court received evidence involving an alleged physical assault on appellant’s wife committed by appellant. 

            “Evidence of similar conduct in domestic abuse trials is relevant and admissible unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.”  State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).  “Whether the probative value of prior bad acts outweighs their prejudicial effect is a matter left to the discretion of the trial court.”  State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (quotation omitted).  “When balancing the probative value against the potential prejudice, unfair prejudice ‘is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.’”  Bell, 719 N.W. 2d at 641 (quoting State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005)). 

            The 1998-incident evidence was damaging to appellant’s case, but it was offered for the proper purpose of illuminating the history of the relationship between appellant and his wife.  The evidence did not give the state an unfair advantage simply because it showed a degree of violence between appellant and his wife.  Admission of this evidence was within the discretion of the district court, and the district court did not abuse its discretion by admitting the evidence.

            Appellant also argues that the earlier incident was not similar conduct because it was not a domestic event.  We disagree.  Because the incident involved conduct of appellant toward the victim of this domestic assault, we conclude that it falls within the purview of Minn. Stat. § 634.20.   

            Appellant contends that admission of the 1998 evidence resulted in a double-jeopardy violation.  We disagree. 

            Here, the district court reviewed the evidence prior to the trial and issued a memorandum of law explaining the difference between this type of evidence and Spreigl evidence and stating that this evidence would be admitted pursuant to Minn. Stat. § 634.20 and not as Spreigl evidence.  The state produced testimony from two policemen who investigated the 2005 incident, photographs of appellant’s wife’s injuries, and testimony of appellant’s wife.  In addition, the state produced testimony and photographs from the 1998 incident.  The district court admonished the jury just before the evidence was presented and during jury instructions that the jury must not convict appellant based on the 1998 evidence, but may only use that evidence to help determine whether appellant committed the 2005 incident.  The district court also instructed the jury of the requirement of finding proof beyond a reasonable doubt before a conviction is appropriate.  

            Assuming, as we must, that the jury believed the state’s evidence and disbelieved appellant’s evidence, we will not disturb the verdict.  Because the district court repeatedly warned the jury not to convict appellant based on the 1998 event and the 1998 event was not the event for which appellant was being tried, the double-jeopardy rule does not apply. 

            Finally, appellant argues that evidence of the 1998 incident is error because it did not involve a conviction.  We disagree.  The statute does not require a conviction before evidence of an incident may be admitted.  Minn. Stat. § 634.20.

IV.

            Appellant asserts that his attorney provided ineffective assistance because he failed to make objections, call witnesses, or make other motions that appellant requested.  We disagree. 

            Generally, to succeed in an ineffective assistance of counsel claim, an appellant must 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 if not 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).  The reviewing court applies 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) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2052). 

            Here, appellant claims that trial counsel made tactical decisions that he, the client, would not have or did not approve.  But the Minnesota Supreme Court has stated:

What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel.  ‘The lawyer has – and must have – full authority to manage the conduct of the trial.  The adversary process could not function effectively if every tactical decision required client approval.’ 

 

State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006) (quoting Taylor v. Ill., 484 U.S. 400, 418, 108 S. Ct. 646, 657 (1988)) (citation omitted).  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.  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).  The actions appellant cites 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).

            Because appellant challenges only tactical decisions, he has failed to show that trial counsel’s performance fell below an objective standard of reasonableness.  Furthermore, appellant alleges no specific facts to show that his counsel violated any rules of professional responsibility.  

            Appellant also alleges that his counsel refused to allow him to testify.  But this issue was not raised during trial and appellant provides no evidence, argument, or authority to support his assertion.  See State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999) (stating that appellant has the responsibility of providing a record showing that the issues he raises on appeal were raised to the district court).  We decline to address this issue for the first time on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that the appellate court will not usually decide issues not raised to the district court).

            Appellant also argues that he received an unfair trial because the same judge, prosecutor, and defense attorney participated in this case and an earlier case in which appellant’s wife was charged with domestic violence against appellant.  Again appellant relies on only assertion and provides no authority.  Finding no obvious error, we decline to address this assertion.  See Modern Recycling, Inc., 558 N.W.2d at 772.

            Finally, pro se appellant makes a number of other assertions and arguments.  We have reviewed these arguments and determined that they are without merit.

            Affirmed.