This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1934

State of Minnesota,

Respondent,

vs.

Linda Kay Olson, et al.,

Appellants.

Filed May 6, 1997

Affirmed in part and reversed in part

Short, Judge

Isanti County District Court

File Nos. K495503, K695504

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellants)

Hubert H. Humphrey, III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Jeffrey R. Edblad, Isanti County Attorney, William J. Robyt, Assistant County Attorney, 555 - 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

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

SHORT, Judge

This appeal arises from two incidents in which Gary and Linda Olson, homeowners on the shore of Stony Lake, allegedly fired rifles at a land developer, a builder, and potential home buyers on the opposite shore of the lake. A jury convicted Gary Olson of two counts of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1, two counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1, and one count of aiding and abetting second-degree assault in violation of Minn. Stat. § 609.05, subd. 1. Linda Olson was convicted of two counts of terroristic threats, one count of second-degree assault, and two counts of aiding and abetting second-degree assault.

On appeal, the Olsons argue their convictions are based upon insufficient evidence, and the trial court erred in: (1) failing to obtain a waiver from the Olsons for joint representation by counsel; and (2) excluding their evidence of witness bias. The Olsons waived their remaining assignments of error by failing to object at trial. See State v. Bergland, 294 Minn. 558, 559, 202 N.W.2d 223, 224 (1972) (stating joinder of trial issue could not be raised on appeal where defense counsel informed trial court he had no objection); State v. Belfry, 353 N.W.2d 224, 227 (Minn. App. 1984) (refusing to reach merits of defendant's claim where defendant failed to object to duplicitous complaint), review denied (Minn. Oct. 30, 1984); see generally State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976) (recognizing reviewing courts will not decide issues raised for first time on appeal). We affirm in part and reverse in part.

D E C I S I O N

I.

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences to be drawn from those facts, a jury could reasonably conclude the defendant committed the crimes charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We consider the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved any contrary testimony. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Gary and Linda Olson argue the evidence is insufficient to support their convictions for terroristic threats, second-degree assault, or aiding and abetting assault. However, the testimony at trial demonstrated: (1) one victim of the first incident, Cheryl Rasmussen, heard shots fired, heard a person yell the words "kill you," and saw a figure across the lake point a gun toward her; (2) Tom Rasmussen heard gunshots over the course of 15 or 20 minutes and saw an individual on the deck of the Olsons' house pointing a rifle in his direction; (3) Bryan Grimme observed a figure with a gun on the Olsons' deck, saw shots go into the water, and heard the words, "This is our lake. Stay off our property"; and (4) during the second shooting incident, Gerald Smith heard people yelling obscenities and making death threats, and saw two individuals outside the Olsons' house shooting rifles directly at him. In addition, Smith testified that when he approached the Olsons' property line to investigate, he identified the two individuals as Gary and Linda Olson and observed as they fired bullets into the trees near him. Given this testimony, we conclude sufficient record evidence exists to support the Olsons' convictions.

II.

The Olsons also argue the trial court erred in permitting them to be jointly represented by counsel without advising them and eliciting from them a proper waiver. A defendant's Sixth Amendment right to fair and effective counsel may be abridged when two or more defendants are represented by a single attorney. State v. Olsen, 258 N.W.2d 898, 906-07 (Minn. 1977). Therefore, a trial court has an affirmative duty to advise a jointly represented co-defendant of the potential dangers of multiple representation and elicit a narrative statement from the defendant acknowledging the defendant's understanding and voluntary waiver of Sixth Amendment protections. Minn. R. Crim. P. 17.03, subd. 5; see Olsen, 258 N.W.2d at 906-07 (mandating that trial courts advise each co-defendant personally of risks, respond to defendants' questions, and make independent assessment of voluntariness of waiver). When a trial court fails to conduct a satisfactory inquiry, the state bears the burden on appeal of proving no prejudicial conflict of interests existed. Mercer v. State, 290 N.W.2d 623, 625 (Minn. 1980). In such a case, we may affirm the conviction only if the trial court's error was harmless beyond a reasonable doubt. Olsen, 258 N.W.2d at 908 n.17.

The state concedes the trial court made no attempt to advise the Olsons of the dangers of dual representation or to obtain a waiver from them. However, the trial record shows: (1) Linda Olson asserted a "mere presence" defense; (2) Gary Olson's testimony supported his spouse's claim of mere presence; (3) the Olsons both testified that Gary Olson had been shooting at raccoons, not at the victims, and that his spouse played no role in the shooting. Given these facts, we conclude the state satisfied its burden of proving no prejudicial conflict of interest existed. See State v. Robinson, 271 Minn. 477, 481, 136 N.W.2d 401, 404 (holding where co-defendants gave consistent testimony regarding crime without implicating one another, dual representation was not prejudicial), cert. denied, 382 U.S. 948 (1965). Under these circumstances, the trial court's error in failing to advise and elicit waivers from the Olsons prior to joint representation was harmless beyond a reasonable doubt.

III.

Gary and Linda Olson also argue the trial court erred in refusing to allow them to cross-examine three of the state's witnesses to expose bias. The manner and scope of cross-examination generally rest within the discretion of the trial court. State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984); see also State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985) (reviewing constitutional challenge to exclusion of defense evidence under abuse of discretion standard). However, cross-examination to show the bias, prejudice, interest, or disposition of a witness to testify untruthfully is a matter of right, "indispensable to show the truth." State v. Elijah, 206 Minn. 619, 624, 289 N.W. 575, 578 (1940); accord Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974) (concluding defendants must be allowed to discredit state's witnesses by exposing biases and ulterior motives for testifying). While a trial court may exercise its discretion to determine when cross-examination for bias is exhausted, it may not prevent inquiry into the subject altogether. Elijah, 206 Minn. at 625-26, 289 N.W. at 579; see also Alward v. Oaks, 63 Minn. 190, 193, 65 N.W. 270, 271 (1895) (stating witness's disposition to tell or conceal truth is always admissible).

The Olsons argue the trial court erroneously refused to permit cross-examination of: (1) Bryan Grimme, regarding whether Gerald Smith had ever claimed to own the Stony Lake property; (2) Deputy Lisa Lovering, regarding her statement to Cheryl Rasmussen, "So hopefully [the Olsons] sell. We charge them, and they sell it"; and (3) Smith, regarding his past filing of a civil lawsuit against the Olsons. While the trial court erred in excluding the first two legitimate avenues of bias inquiry, the error was harmless because: (1) the jury was aware of Smith's financial interest in the property from Smith's own testimony; and (2) Deputy Lovering gave no substantive testimony regarding the charged crime, but merely introduced various audiotaped witness statements. See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (holding harmless error impact analysis applies to erroneous exclusion of defense evidence).

By contrast, the evidence of Smith's lawsuit against the Olsons, revealing a prior relationship and possible acrimony between the parties, could have greatly affected the weight the jury placed on Smith's testimony concerning the crimes charged. If the jury thoroughly discounted Smith's testimony, insufficient evidence would remain to support the Olsons' convictions arising from the second shooting incident. Therefore, a reasonable possibility exists that those verdicts would have been different but for the trial court's erroneous exclusion of the evidence of bias. See id. (noting error is prejudicial if reasonable possibility exists that verdict might have been different but for error). Under these circumstances, we must reverse Linda Olson's convictions on counts three, four and six, and Gary Olson's convictions on counts three, four and six, which arose from the shooting incident involving Smith.

Affirmed in part and reversed in part.