A06-1424

State of Minnesota,

Respondent,

vs.

Terrance Phillip Hausladen,

Appellant.

Filed September 11, 2007

Affirmed

Worke, Judge

Carver County District Court

File No. 10-CR-05-996

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

Michael A. Fahey, Carver County Attorney, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

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

Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

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

WORKE, Judge

On an appeal from a DWI conviction, appellant argues that (1) there was insufficient evidence to prove that he was driving the vehicle when it went off the road, and (2) there was evidence to support his account that an unnamed girlfriend was driving the car. In his pro se supplemental brief, appellant argues that he was denied the effective assistance of counsel, his due-process rights were violated, and the prosecutor committed misconduct. Because we conclude that the evidence is sufficient to sustain appellant’s DWI conviction, there is no evidence that someone else was driving the vehicle, and there is no merit to appellant’s pro se issues, we affirm.

D E C I S I O N

Sufficiency of Evidence

In considering a claim of insufficient evidence, 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 permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that 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). “This is especially true when resolution of the matter depends mainly on conflicting testimony.” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). We will not disturb the verdict if the jury, 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).

Appellant Terrance Phillip Hausladen was convicted of DWI. The evidence was sufficient to allow the jury to reach the verdict that they did. Joseph Laumann testified that in the early morning hours of October 24, 2005, he noticed a man standing on the side of the highway and stopped to ask if he needed help. Appellant told Laumann that he had gone into the ditch because he had been talking on his cell phone. Laumann believed that appellant was intoxicated because appellant was stumbling, and repeating himself. Laumann also testified that appellant was adamant that he did not want the police called to assist. There was no one else around and appellant never mentioned to Laumann that someone else had been driving the vehicle or that someone was coming to tow the vehicle or pick him up.

The deputies who responded to a 911 call regarding a car in the ditch on Highway 212 testified that when they arrived, appellant was stumbling and they detected an odor of alcohol on his breath. Appellant informed one of the deputies that his girlfriend, Lisa Weinandt, was driving the vehicle when it went into the ditch, and that she had hitchhiked to Norwood-Young America to arrange to get his vehicle out of the ditch. Another deputy noted that appellant’s vehicle was running, the headlights were on, and there was a dog in the vehicle.

Following appellant’s arrest, a deputy called Wienandt to report that appellant had been arrested. Wienandt told the deputy that she had not been with appellant that evening. Wienandt testified that she and appellant had planned to get together to discuss their relationship that evening. Appellant called and asked her to pick him up from a bar. As Wienandt was about to leave to pick appellant up, he called back to tell her that he had just ordered drinks and appetizers for the two of them, and she told him that she would not go into the bar to get him. Wienandt testified that she then went to bed, and appellant called back asking her to pick him up. The third time appellant called, he told Weinandt that his vehicle was in the ditch and that he and his dog were going to need a ride home. Wienandt left to pick appellant up, but she never saw a car in the ditch so she went home. Wienandt also testified that she had known appellant for 17 years and that he was “exceedingly drunk” that night.

At the time of the incident, appellant was living with Jackie Anderson. Ashley Anderson, the girlfriend of Jackie Anderson’s son, testified that appellant and Jackie had been fighting the evening of October 23. Anderson witnessed appellant leave the house, put his dog in the car, and drive away. Anderson stated that appellant later called and said that his car had gone in the ditch. Appellant asked to be picked up, but Jackie refused and said that no one else should go get him. Michael Baker, who lived in the same apartment building as Jackie Anderson and appellant, testified that he remembered seeing Jackie and appellant sitting in the car in the parking lot around midnight. Baker testified that Jackie Anderson was in the driver’s seat and appellant was in the passenger seat. We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. See Moore, 438 N.W.2d at 108. After a painstaking analysis of the record, it is reasonable to conclude that the evidence was sufficient to permit the jury to reach the verdict that they did.

Ineffective Assistance of Counsel

Appellant argues that he was denied effective assistance of counsel. “The defendant 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 strong presumption exists that a counsel’s performance fell within a wide range of reasonable assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). The record does not support a showing that the performance of appellant’s counsel fell below an objective standard of reasonableness.

Specifically, appellant argues that trial counsel failed to (1) object to evidence, (2) subpoena witnesses, (3) object to Laumann’s testimony regarding his discussion with the passerby as hearsay, (4) object to “opinion” testimony that appellant was intoxicated that evening, (5) move for a mistrial when the jury informed the court that it had difficulty hearing testimony of several of the state’s witnesses, and (6) secure witnesses for rebuttal. “Particular deference is given to the decision of counsel regarding trial strategy.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). “Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel.” Jones, 392 N.W.2d at 236. The examples provided by appellant involve disputes with the tactics employed by his attorney at trial. Even counsel’s alleged failure to subpoena Jackie Anderson and other witnesses who appellant claims would support his case constitutes a matter of trial strategy. See id. (holding defendant’s contentions that his counsel failed to hire an investigator or interview prospective witnesses concerned matters of trial strategy). Absent postconviction review, there is no evidence regarding the rationale behind his trial attorney’s actions, and, therefore, no proof that the decisions made by trial counsel were unreasonable.

Due-Process Violations

Appellant argues that his due-process rights were violated when he did not receive a copy of the January 2006 order dismissing the DWI test-refusal charge. This issue is unrelated to this appeal; appellant was not tried on the DWI test-refusal charge.

Prosecutorial Misconduct

Appellant argues that the prosecutor misrepresented the facts during his opening statement. “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Appellant directs this court to minor discrepancies between the prosecutor’s opening statement and actual witness testimony. Because appellant did not object at trial and has failed to show §any error or undue prejudice, he has not met his burden of showing prosecutorial misconduct.

Affirmed.