A06-316

State of Minnesota,

Respondent,

vs.

Henry Soczewko,

Appellant.

Filed April 17, 2007

Affirmed

Hudson, Judge

Houston County District Court

File No. T7-04-963

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

Richard Jackson, Houston County Attorney, Suzanne Mae Harnack, Assistant County Attorney, 304 South Marshall, Suite 201, Caledonia, Minnesota 55921 (for respondent)

Henry Soczewko, 2747 County Road 7, La Crescent, Minnesota 55947 (pro se appellant)

Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.

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

HUDSON, Judge

Appellant Henry Soczewko challenges his misdemeanor conviction of falsely reporting a crime in violation of Minn. Stat. § 609.505 (2004). Appellant argues that the evidence was insufficient to support his conviction and that his trial counsel were ineffective. Because the evidence was sufficient to support appellant’s conviction, and because his claims of ineffective assistance of counsel are meritless, we affirm.

FACTS

On August 8, 2004, appellant’s neighbors began burning items in an outdoor fire pit on their property, for which they had obtained a permit. A Houston County Sheriff’s deputy, aware of the past problems between appellant and his neighbors, drove by both appellant’s and his neighbors’ residences twice that day to monitor the progress of the burning and noticed nothing unusual.

At approximately 10:16 p.m., appellant called the Houston County Sheriff’s Department to report that his neighbor’s fire was burning too high. At approximately 10:30 p.m., appellant called 911 to complain that his neighbor was walking in his backyard and throwing stones at his house. Houston County Sheriff’s deputies responded to appellant’s property after each call and could not find anything to support appellant’s claims. Later that same night, appellant went to the La Crescent Police station to lodge a complaint against the Houston County deputies who had responded to his calls.

A complaint was filed on August 11, 2004, charging appellant with one count of falsely reporting a crime in violation of Minn. Stat. § 609.505 (2004), and one count of disorderly conduct in violation of Minn. Stat. § 609.72, subd. 1(3) (2004).

Appellant was represented by two attorneys at his court trial, which began on May 5, 2005. On May 6, 2005, the district court judge suspended the proceedings pending the results of a Rule 20 evaluation because he was concerned that appellant was unable to “adequately assist his attorneys in his defense.” Appellant refused to cooperate with the evaluation, and the trial resumed on September 9, 2005. The district court found appellant guilty of falsely reporting a crime; it acquitted appellant on the disorderly conduct charge.

Appellant filed a motion to reconsider, which the district court denied. In its memorandum, the district court concluded that appellant had only re-argued his case and not added anything new, and that his claim of ineffective assistance of counsel was meritless. The district court also stayed imposition of appellant’s sentence for one year. This appeal follows.

On February 23, 2006, respondent filed a motion to dismiss the appeal, which this court denied on March 14, 2006.

D E C I S I O N

Appellant argues that the district court’s findings of fact were erroneous and that there was insufficient evidence to support his conviction of falsely reporting a crime in violation of Minn. Stat. § 609.505 (2004).

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 support the verdict. State v. Webb,440 N.W.2d 426, 430 (Minn. 1989). This court assumes that the fact-finder, who has the exclusive function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence. Dale v. State,535 N.W.2d 619, 623 (Minn. 1995). “We will not disturb the verdict if the [fact-finder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt,” could have reasonably concluded that appellant was guilty of the charged offense. State v. Alton,432 N.W.2d 754, 756 (Minn. 1988). We review the district court’s findings of fact for clear error. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).

A person is guilty of falsely reporting a crime when he or she “informs a law enforcement officer that a crime has been committed, knowing that it is false and intending that the officer shall act in reliance upon it . . . .” Minn. Stat. § 609.505. Here, the record shows that appellant contacted law enforcement several times to report nonexistent crimes, knowing that the sheriff’s deputies would act in reliance upon that information. On August 8, 2004, appellant twice called the Houston County Sheriff’s Department to complain about his neighbors’ behavior. Sheriff’s deputies responded to appellant’s house after each call, and each time they found nothing that supported his allegations. One of the deputies who responded to appellant’s calls testified that appellant refused to show him the rocks that he claimed were thrown at his house and where exactly his neighbors had walked in his yard. The deputy also testified that he and his fellow deputy searched the area around appellant’s house but found no evidence of any prowlers. The deputy also stated that there was “very heavy dew” on the ground that night and that “there was no tracks except for what we walked on and it was very easy to see them tracks because of it being that dewy and being wet when you shine your flashlights across there, they were very obvious.”

We conclude that the evidence, when viewed in the light most favorable to the conviction, is sufficient to support appellant’s conviction of falsely reporting a crime in violation of Minn. Stat. § 609.505 and that the district court’s findings were not erroneous.

Appellant also argues that his counsel were ineffective at trial because they did not call certain witnesses to testify and did not present certain facts to the court. The district court determined that appellant failed to show that his counsel’s performance fell below an objective standard of reasonableness. We agree.

An appellant “must affirmatively prove that his 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)). A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

Appellant argues that certain witnesses and facts were improperly omitted at trial, but “[w]hich witnesses to call at trial and what information to present to the [fact-finder] are questions that lie within the proper discretion of the trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Appellant alleges no other facts to support his contention that his trial counsel were ineffective. We conclude that appellant’s claim of ineffective assistance of counsel is meritless.

Affirmed.