A06-118

State of Minnesota,

Respondent,

vs.

Benjamin Michael Senske,

Appellant.

Filed April 3, 2007

Affirmed

Worke, Judge

Dakota County District Court

File No. K3-05-963

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

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

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from convictions for first-degree burglary and terroristic threats, appellant argues that the district court abused its discretion by (1) admitting evidence of appellant’s prior convictions and failing to give a limiting instruction, and (2) denying his motion for a mistrial after a state witness, the complainant, mentioned appellant’s incarceration and the court’s curative instruction was inadequate. Alternatively, appellant argues that he was denied the effective assistance of counsel because his attorney elicited evidence of his prior convictions. We affirm.

D E C I S I O N

Evidence of Prior Convictions

Appellant Benjamin Michael Senske argues that the district court abused its discretion by admitting evidence of his prior convictions. “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) (citations omitted).

Appellant argues that evidence of his prior convictions was not admissible under Minn. R. Evid. 609, which provides:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

Here, officers were dispatched to an apartment for a reported assault. The victim, P.D., told the officers that appellant, her ex-boyfriend, broke down her apartment door, held a knife to her throat and threatened to kill her. Officers apprehended appellant, who admitted that he broke down P.D.’s door and threatened to kill her. Before his trial began, appellant moved the district court to exclude evidence of his prior convictions. But the state did not seek to introduce evidence of appellant’s prior convictions; rather, appellant’s attorney, on direct examination of appellant, elicited evidence of appellant’s prior non-felony harassment convictions involving P.D.

The state argues that this evidence is admissible under Minn. Stat. § 634.20 (2004); but appellant argues that the state cannot raise this argument for the first time on appeal. “A respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003). The record is sufficient for this court to consider the state’s argument, there is legal support for the argument, and the argument does not expand the relief granted. Therefore, we may conduct an analysis under Minn. Stat. § 634.20.

Minn. Stat. § 634.20 provides:

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. “Similar conduct” includes, but is not limited to, evidence of domestic abuse . . . or violation of section 609.749 . . . . “Domestic abuse” and “family or household members” have the meanings given under section 518B.01, subdivision 2.

Minn. Stat. § 609.749 (2004) addresses harassment and stalking. A family or household member includes “persons involved in a significant romantic or sexual relationship.” Minn. Stat. § 518B.01, subd. 2(7) (2004). Because appellant was previously convicted of harassing P.D., his girlfriend, evidence of his prior convictions is evidence of similar conduct under Minn. Stat. § 634.20.

“[T]he admissibility of evidence under Minn. Stat. § 634.20 depends only on (1) whether the offered evidence is evidence of similar conduct; and (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004). The admission of relationship evidence is not error “despite the fact that the [district] court [does] not, on the record, engage in the probative value versus potential prejudice balancing test.” State v. Bell, 719 N.W.2d 635, 640 (Minn. 2006) (citing State v. Lee, 645 N.W.2d 459, 467 (Minn. 2002)). This case is similar to Lee because the evidence in Lee was not specifically offered under Minn. Stat. § 634.20, but was offered as testimony that the defendant admitted to beating his wife, the victim, on an earlier occasion. 645 N.W.2d at 467. Lee argued that the district court erred when it “failed to consider whether the probative value of the relationship evidence outweighed its prejudicial effect.” Id. But the supreme court held that the district court did not clearly abuse its discretion when it admitted the evidence. Id.

Appellant argues that he was prejudiced because the evidence was similar to the charged offense, it gave the jury the impression that he was a “fit candidate for punishment,” and the district court did not give the jury a limiting instruction. First, the similarity of the offenses is not a factor for the district court to consider. Second, appellant’s attorney elicited the testimony regarding appellant’s prior convictions in order to show a pattern of behavior in appellant and P.D.’s relationship. Appellant cannot now argue that the evidence gave the jury the impression that he was a “fit candidate for punishment.” Further, the district court instructed the jury that it could not convict appellant on the basis of the evidence, that appellant was not being tried for any offense other than the offenses charged, and that the evidence could not be used as proof of appellant’s character or that he acted in conformity with such character.

Because the evidence presented was brief, constituting two pages of a trial transcript that was over 200 pages long, and because the district court gave a limiting instruction, appellant has not shown that he was prejudiced. Moreover, appellant was not prejudiced because the evidence supporting his conviction was strong. P.D. testified that appellant forced his way into her apartment, held her down on the bed, and threatened her with a knife. Appellant testified that he “pushed the door open” with his shoulder, using enough force to pull the door’s security chain and dead bolt away from the wood frame. Appellant also testified that he held P.D. down and threatened to kill her. The district court did not abuse its discretion by admitting evidence of appellant’s prior convictions for harassing P.D.

Alternatively, appellant argues that he received ineffective assistance of counsel because his attorney elicited the testimony regarding his prior convictions. An appellant 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 v. Washington,466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). We strongly presume that counsel’s conduct fell within a wide range of reasonable professional assistance. Strickland,466 U.S. at 689, 104 S. Ct. at 2065.

An ineffective-assistance-of-counsel claim ordinarily should be raised in a postconviction petition rather than on direct appeal from a judgment of conviction in order to permit appellate review of the evidence presented during a postconviction hearing. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But an ineffective-assistance-of-counsel claim can be brought on direct appeal when it can be decided on the basis of the record. Torres v. State,688 N.W.2d 569, 572 (Minn. 2004). Appellant’s claim that his trial counsel was ineffective for eliciting the evidence of his prior convictions can be decided on the basis of the record.

Appellant must prove that his trial counsel’s representation fell below an objective standard of reasonableness and that he was actually prejudiced by his counsel’s performance. Gates,398 N.W.2d at 561. First, this court will not intervene in matters related to trial tactics or strategy, such as “[w]hich witnesses to call at trial and what information to present to the jury.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (quotation omitted). Appellant’s trial counsel attempted to use the prior-conviction evidence to show that appellant and P.D. had a pattern of arguing and that this incident was no different. Additionally, appellant was not prejudiced by the evidence, thus, he cannot show that he was prejudiced by his counsel’s performance and that the outcome would have been different had the jury not heard the testimony. Therefore, appellant’s argument that he received ineffective assistance of counsel fails.

Mistrial Motion

Appellant next argues that the district court abused its discretion when it denied his motion for a mistrial. Appellant contends that he was entitled to a mistrial after P.D. testified that appellant was incarcerated. Appellant suggests that because the jury heard that he was incarcerated, his right to a fair trial and the presumption of innocence was undermined. This court reviews a district court’s denial of a motion for a mistrial for abuse of discretion. State v. Spann,574 N.W.2d 47, 52 (Minn. 1998). “[A] mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different.” Id.at 53.

Appellant relies on State v. Manthey, 711 N.W.2d 498 (Minn. 2006), to support his argument that he was unfairly prejudiced when the jury was told of his incarceration. In Manthey, when asked on cross-examination: “So by your testimony for the last two years your mother had been answering the phone?” Manthey’s daughter responded, “No. She’s been in jail.” 711 N.W.2d at 505. The district court told the jury to disregard the comment, gave a curative instruction, and instructed the jury on the presumption of innocence. Id.at 505-06. The supreme court determined that any prejudice was not so “egregious as to require a mistrial and was effectively mitigated by the court’s instructions.” Id.at 506. The court noted that the “comment was made during intense, emotional cross-examination, and [did] not appear to have been prompted by a desire to prejudice [the appellant].” Id. Finally, the supreme court decided that the district court appropriately instructed the jury because “[m]ore specific instructions . . . could have had the effect of drawing attention to” the comment. Id.

Here, on cross-examination, appellant’s attorney asked P.D. if she wanted to be in a relationship with appellant. P.D. testified that her relationship with appellant could work if he stopped drinking. When appellant’s attorney asked P.D. if appellant had stopped drinking, she replied: “Yes, he’s incarcerated.” This situation is very similar to Manthey, in which the supreme court determined that the comment did not prejudice the appellant. See id. P.D. made the comment during cross-examination after appellant’s attorney had asked her at least two times previously about appellant’s intoxication and how it affected their relationship. Additionally, in State v. Hudson, a similar situation occurred when a state witness revealed, in response to questions by defense counsel, that the defendant had been in jail part of the previous year. 311 N.W.2d 505, 506 (Minn. 1981). The supreme court determined that the defendant was not entitled to a new trial because defense counsel elicited the evidence and was to blame because the attorney knew that the defendant had been in jail and yet asked the witness if the defendant had been living with her “for about two years continuously.” Id. Here, as the district court stated, P.D. could not have answered differently and appellant’s attorney should have been aware that she would elicit that response.

Finally, appellant argues that the district court’s instruction was inadequate. The district court instructed the jury that they could not consider as evidence the fact that appellant may have been incarcerated as a result of the offense. Additionally, the district court instructed the jury on the presumption of innocence at the beginning and at the conclusion of the trial. The district court’s instruction was adequate and its lack of specificity did not draw attention to P.D.’s comment. See Manthey, 711 N.W.2d at 506. Appellant has not shown that there is a reasonable probability that the outcome would have been different without P.D.’s comment. This is especially true given the strength of the evidence supporting appellant’s guilt. The district court did not abuse its discretion in denying the motion for a mistrial.

Affirmed.