This opinion will be unpublished and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

A06-1263

 

 

State of Minnesota,

Respondent,

 

vs.

 

Donald Alan Johnson,

Appellant.

 

 

Filed ­­­June 12, 2007

Affirmed

Harten, Judge*

 

Carlton County District Court

File No. CR-05-2209

 

Thomas H. Pertler, Carleton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718; and

 

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent)

 

John S. Lind, 306 West Superior Street, Suite 920, Duluth, MN 55802 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant was convicted of and sentenced for first-degree assault, motor-vehicle theft, and fleeing police in a motor vehicle.  He challenges the denial of his motions for a new trial and a reduced sentence.  Because we see no abuse of discretion in either denial, we affirm.

FACTS

 

            On 19 July 2005, police officers J. and W., while driving a squad car, noticed a pickup truck, ran its plates, and discovered the truck had been stolen.  A few minutes later, they heard a message from an investigator, R., saying that he was in an unmarked car pursuing the truck on a freeway.  J. and W. took over the pursuit with lights and siren engaged.

            The truck exited at a rest area, where two individuals got out although the truck did not come to a complete stop.  With J. and W. in pursuit, the truck returned to the freeway, exited again, ran a stop sign at the top of the exit ramp, returned to the freeway, exited again, ran another stop sign, then turned on to Highway 61.  The truck swung from side to side, causing the trailer tires to bounce off the pavement.  Oncoming vehicles, including an unmarked squad car, pulled over to the sides of the road to avoid the truck.

The truck left Highway 61 and turned into Pine County, where it picked up a dirt road and later turned into a farm field.  J. and W. lost sight of the truck when it passed the crest of a hill, but saw it again stopped near a woods with the driver’s door open.  J. and W. parked near the truck and walked toward the front of it.  They saw appellant when he stood up in the space between the truck and the trailer.  Both officers had their guns out and ordered appellant to stay away from the truck and show his hands.

Appellant, however, entered the truck, shifted into drive, and headed the truck toward J., who was about ten feet in front of it.  J. moved aside to avoid being hit; the truck passed within a foot or two of him.  In an effort to stop the truck, J. and W. fired at its tires.  Appellant continued driving and was finally stopped when two other vehicles joined the pursuit and surrounded the truck. 

Appellant admitted to R., who interviewed him in jail, that he knew the truck was stolen, that he fled from the police, and that he endangered others by driving through intersections; he also said that, when J. and W. first approached him in the field, he entered the truck and drove in an attempt to continue his flight.

At trial, J. testified that appellant looked at him when he shifted and drove the truck toward J., that J. believed someone would die as a result of efforts to flee, and that when appellant drove the truck at him, J. believed he would die if he did not move quickly out of its path.  Appellant did not testify or present witnesses.

The jury found appellant guilty as charged.  He moved for a new trial, alleging insufficient evidence, prosecutorial misconduct, and ineffective assistance of counsel; he also moved for a sentence half the length of the presumptive sentence.  His motions were denied, and he was sentenced to the presumptive 134 months.  He challenges both his conviction and his sentence.

D E C I S I O N

1.         New Trial Motion.

            “The denial of a new trial by a postconviction court will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postconviction court’s findings.”  State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).  Appellant moved for a new trial on the grounds of insufficient evidence, prosecutorial misconduct, and ineffective assistance of counsel.

            a.         Insufficient Evidence.

In considering a claim of insufficient evidence, this court is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  If the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably have concluded the defendant was guilty, we will not disturb its verdict.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

The jury found appellant guilty of violating Minn. Stat. § 609.221, subd. 2(a) (2004), which provides that:

Whoever assaults a peace officer . . . by using or attempting to use deadly force against the officer . . . while the officer . . . is engaged in the performance of a duty imposed by law, policy, or rule may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

 

“Assault” is “an act done with intent to cause fear in another of immediate bodily harm or death” or “[t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2004).  “Deadly force” means “force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.”  Minn. Stat. § 609.066, subd. 1 (2004); see Minn. Stat. §609.221, subd. 2(c)(2) (2004) (providing that “deadly force has the meaning given in Minn. Stat. § 609.066, subd. 1.”).

The jury heard J. testify that, when he was about ten feet in front of the truck’s bumper and moving from the passenger side to the driver side, appellant got into the truck; J. could “see his hand go up to the column, pull the shifter down, and then . . . hear the roar of the engine.”  He testified that the truck was moving towards him and that, if he had not moved, “I wouldn’t be here talking to you today.”  J. then testified that he began shooting at the truck’s tires

 [b]ecause I had no doubt in my mind this individual was not stopping.  When I gave those commands and he looked . . . [h]e looked straight through me, and that’s all I can describe it as, as the individual looked straight through me, and there was no doubt in my mind he was not stopping. 

 

When asked, “Well, in fact he had almost run you over, right?”  J. answered, “Yes.”  J. also testified that he was in fear of death or great bodily harm and that this fear “definitely heightened when I was standing in front of the vehicle and it was coming at me and I knew then that I would die if I did not get out of the way of the vehicle” and that he could not have gotten out of the way after “[a]nother second or so.” 

J’s uncontroverted testimony provided sufficient evidence for the jury to convict appellant of assaulting a police officer in the performance of his duty by using or attempting to use deadly force against the officer in violation of  Minn. Stat. § 609.221, subd. 2(a).

Appellant relies on In re Welfare of T.N.Y., 632 N.W.2d 765, 770 (Minn. App. 2001) (reversing delinquency adjudication of boy, age 13, who “merely hesitated before dropping the gun and complying with the officers’ directions” because the officer’s fear was the only evidence of boy’s intent).  While it is not the victim’s fear but the defendant’s intent that is the focal point of the inquiry, intent may be proved by circumstantial evidence inferred from a defendant’s conduct, the character of the assault, and events before and after the crime.  Id. at 769.  T.N.Y. is distinguishable on its facts. Here, appellant fled from the officers during a dangerous and high-speed chase; he was explicitly told to raise his hands and stay out of the truck; he nonetheless entered the truck, looked at J. standing 10 feet in front of the truck, and accelerated the truck towards J.  The events before the crime and appellant’s conduct supply a basis for the jury’s inference of intent.

b.         Prosecutorial Misconduct.

Appellant did not object to the prosecutor’s conduct during trial. 

[B]efore an appellate court reviews unobjected-to trial error, there must be (1) error, (2) that is plain, and (3) affects substantial rights. If these three prongs are satisfied, the court then assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.

 

State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (citation omitted).  The burden is on the nonobjecting defendant to show that there is error and that it is plain, but on the prosecution to show that “there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.”  Id. (quotation omitted).  “Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.”  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).

            Appellant first contends that the prosecutor erred in examining J.  He asserts that the prosecutor deliberately confused the jury by questioning J. about his use of deadly force in shooting at appellant’s tires.  But the driving act that formed the basis for appellant’s assault conviction preceded J.’s shots at the tires.  Moreover, J. testified that he shot the tires as the less-intrusive means of stopping a truck that had led him on an extended and dangerous high-speed chase and that the only other means would have been shooting appellant. We agree with the district court that there was no basis to assume the prosecutor’s questions about J’s shooting at the tires confused the jury.

Secondly, appellant objects to the prosecutor’s closing argument, specifically to the prosecutor’s statement that

[J.] under those circumstances has every right in the world to shoot [appellant] right in the head, to shoot him dead, and . . . if he had done that, he would have been well within the law.  . . .  [J.] had the presence of mind, after nearly being killed, to spare [appellant’s] life, to shoot out the tires instead of shooting him, which the state submits to you would probably have been a better choice.

 

The district court found that the latter comment was improper but noted that it “was not the type that went to burden of proof, presumption of innocence, or other things that would substantially affect [appellant’s] right to a fair trial.”  The district court went on to say:

Within the context of the whole closing argument, and the evidence in the case, I do not find that the comment was prejudicial in a manner that affected the outcome of the case. . . . I certainly cannot find that there was a reasonable likelihood that the error had a significant effect on the jury’s verdict.

 

The district court is in the best position to judge whether misconduct occurred and what effect it had on the jury.  Id.  The transcript of the prosecutor’s closing argument ran to ten pages; the trial transcript is about 200 pages, exclusive of jury selection.  The district court did not abuse its discretion in finding that, within the context of the entire case, the comment was not prejudicial.

Finally, appellant objects to the prosecutor’s references to appellant’s lack of concern for others when, during the chase, he drove recklessly and ignored three stop signs. But noting that jurors could be endangered by persons doing what a defendant did is not misconduct.  See id. at 28 (“After reviewing the entire closing argument, we are not persuaded that the prosecutor committed any misconduct by improperly preying upon the jurors’ fear of gang violence.”)    

            We conclude that prosecutorial misconduct, if any, did not affect the outcome of appellant’s trial.

            c.         Ineffective Assistance of Counsel.

            A trial court’s decision regarding a post-trial 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).  A defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s errors, the result would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

            Appellant claims that his counsel had “a lack of trial strategy” because no witnesses for appellant were called and no evidence was presented.  Appellant does not identify other witnesses or how their testimony would have altered the outcome.  The record shows that appellant’s counsel discussed with him the possibility of his testifying and that he first decided to testify, then changed his mind. 

Appellant’s defense was that he did not intend to hurt anyone. The only evidence supporting that defense was appellant’s statement to R., the investigator.  During the presentation of the state’s case, R. on cross-examination, said appellant had told him that (1) he was trying to pay attention not to hurt anyone, (2) he knew he was not going to hurt anyone, and (3) if anyone was hurt, it should be himself.  Thus, the jury had already heard appellant’s defense testimony before appellant’s counsel could have presented appellant’s case.

            Appellant has not shown either that his counsel’s representation fell below an objective standard of reasonableness or that, but for counsel’s alleged errors, the outcome would have been different.

2.         Sentence.

            Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

The district court sentenced appellant to 134 months, the presumptive sentence for a person with appellant’s criminal history score who is convicted of first-degree assault against a peace officer.  Appellant argues that he was actually charged with, and convicted of, attempted first degree assault against a peace officer and is entitled to half the presumptive sentence under Minn. Stat. § 609.17, subd. 4(2).  We disagree.

Count one of the complaint charges appellant with violating Minn. Stat. § 609.221, subd. 2(a), which provides that “Whoever assaults a peace officer . . . by using or attempting to use deadly force against the officer . . . while the officer . . . is engaged in the performance of a duty imposed by law, policy, or rule.”  (Emphasis added.)  The complaint then indicates that appellant did “attempt to assault a peace officer by attempting to use deadly force, to-wit: by attempting to run [J.] over with a motor vehicle.”  The jury was instructed that the crime of which appellant was accused was “using or attempting to use deadly force against the peace officer” and found him guilty of use of deadly force against a police officer.

Because the statutory provision appellant violated states unequivocally that a person who either uses or attempts to use deadly force may be sentenced to 20 years imprisonment or a fine of $30,000, the district court is not free to conclude that a person who attempts use of deadly force is entitled to a lesser sentence.  In this context, the phrase “attempts to use” in Minn. Stat. § 609.221, subd. 2(a), operates independently of Minn. Stat. § 609.17, the criminal attempt statute.

The district court did not abuse its discretion in denying appellant’s motion for a new trial or err in imposing the presumptive sentence.

Affirmed.