State of Minnesota, Respondent, vs. Gene Alan Pearson, Appellant. C2-97-204, Court of Appeals Unpublished, October 7, 1997.

This opinion will be unpublished and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

C2-97-204

State of Minnesota,

Respondent,

vs.

Gene Alan Pearson,

Appellant.

Filed October 7, 1997

Affirmed

Short, Judge

Olmsted County District Court

File No. KX951599

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Third Floor Courthouse, 151 Fourth Street SE, Rochester, MN 56561 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

SHORT, Judge

A jury convicted Gene Alan Pearson of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996). On appeal, Pearson argues: (1) the evidence is insufficient; (2) the trial court abused its discretion in making evidentiary rulings; and (3) his defense counsel provided ineffective assistance at trial. We affirm.

D E C I S I O N

When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992) (quoting State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988)). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994) (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)). Rulings on evidentiary matters generally rest within the sound discretion of the trial court. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980) (citing E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 437, 237 N.W.2d 627, 630 (1976)), cert. denied, 449 U.S. 1132 (1981).

Pearson argues the state presented insufficient evidence that he intended to terrorize his victims. See Minn. Stat. § 609.713, subd. 1 (1996) (defining terroristic threats as threat to commit an act of violence with purpose to terrorize or with reckless disregard of causing such terror). We disagree. Although Pearson admits he made threats involving a crime of violence, he claims those statements merely expressed "transitory anger," not the requisite statutory intent to terrorize. See State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (discussing concept of transitory anger), review denied (Minn. Feb. 21, 1990). However, the record demonstrates: (1) on June 4, he grabbed a co-worker by the throat; (2) on June 5, he yelled "Well, then you die. Die." and "What happened in Oklahoma City could happen here too"; (3) employees were frightened by Pearson's words and believed he might actually act on them; and (4) Pearson returned to an office site although he knew his access was restricted. Given these facts, Pearson's conviction is founded on sufficient evidence. See State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (holding intent can be established through making reasonable inferences from circumstances surrounding incident).

II.

Pearson also argues the trial court abused its discretion in admitting into evidence (1) the front page of the Rochester Post-Bulletin, and (2) testimony regarding a voice mail message. We disagree. The record demonstrates: (1) the newspaper article covered the bombing of the Oklahoma City federal building; (2) defense counsel did not object to admission of the exhibit; (3) in closing argument, the prosecutor explained evidence of what happened in Oklahoma City was not being offered to arouse passions or stir emotions; (4) three witnesses testified to Pearson's tone and demeanor, and their reaction to Pearson's statements; (5) the testimony about the voice mail message was offered to establish what the recipient knew of the incident before Pearson entered the office; and (6) the voice mail testimony was not admitted to prove the contents of the message. Under these circumstances, the evidence was properly admitted under Minnesota Rules of Evidence 402 and 403. The trial court did not abuse its discretion in making any evidentiary rulings.

III.

Pearson argues he was denied his right to effective assistance of counsel by his attorney's presentation of evidence and closing argument. We disagree. A defense counsel's exercise of tactical judgment will not support a claim of ineffective assistance. State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988) (citing Strickland v. Washington, 466 U.S. 668, 689-90 (1984)); see State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990) (concluding choice of witnesses lies in counsel's discretion). Moreover, Pearson failed to demonstrate that the claimed errors affected the outcome at trial. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (holding defendant claiming ineffective assistance must show reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different). Under these circumstances, Pearson failed to prove his counsel's performance was unreasonable and constitutionally prejudiced his defense. See Dunn v. State, 499 N.W.2d 37, 39 (Minn. 1993) (holding appellant failed to show trial counsel acted unreasonably and that she was constitutionally prejudiced).

Affirmed.