State of Minnesota, Respondent, vs. Timothy Joel Hanson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1799

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy Joel Hanson,

Appellant.

 

 

Filed July 25, 2000

Affirmed; motion denied

Shumaker, Judge

 

Crow Wing County District Court

File No. K1991011

 

 

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

            Appellant Timothy Joel Hanson appeals his conviction of second-degree assault, arguing that there was insufficient evidence to support the jury's guilty verdict because the victim's uncorroborated testimony did not satisfy the state's burden of proof.  Because credibility determinations are for the finder of fact, we affirm. 

FACTS

            Appellant Timothy Joel Hanson was charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998) (assault with a dangerous weapon).  At trial, the state presented the testimony of the victim and the arresting officer, Scott Stanfield.  Defense counsel presented only the testimony of Hanson.

            The victim testified that in the early morning of May 20, 1999, he went to a friend's house, located next door to a bar.  He joined a group of people gathered on the front stoop of the house.  Shortly after his arrival, Hanson emerged from the bar, got on his bicycle, and rode towards the group.  One of the group waved to Hanson and said hello.  Hanson leaned his bike over and said he did not want any problems.  He began walking towards the group, and the victim told him they did not want any problems with him either.  Hanson replied that he was not going to back down from a fight, unzipped a pack strapped to his bike, pulled out a knife, and said, "I hope you're all prepared to meet God."  The victim went inside the house to call the police.  When he came back outside, Hanson was gone.

            The group flagged down Officer Scott Stanfield when he drove by the house and told him what had occurred.  Officer Stanfield left to look for Hanson.  Approximately 20 minutes later, the group noticed Hanson again riding towards them on his bicycle.  As he followed his friends into the house, the victim saw Hanson put his bicycle on the ground and remove a large sword from a sheath tied to the handlebars.  Hanson began walking towards the victim with the sword held out in front of him.  Inside, the victim called the police. 

            Hanson's version of the events was different.  He testified that during the evening of May 19, 1999, he had eaten dinner at his parents' house and then decided to stop at a bar on his way home.  He had tools, including a knife, sword, axe, and  hand saw, tied to his bicycle or in his pocket.  He used these tools to make wood furniture.  When he arrived at the bar in the early evening, a group of people at the house next door verbally harassed him.  When he left the bar at approximately 1:30 a.m. on May 20, 1999, the same group was still outside the house.  Some members of the group again verbally harassed him, and one person struck him in the face.  He turned around and rode his bike away from the house and stopped in an alley to regroup.  After looking back towards the bar and the house, he determined that the group was no longer outside.  He emerged from the alley and rode his bike back in front of the house.  He was chased by a few of the individuals, but he sped up and rode away.  On his way home, he was stopped and arrested by Officer Stanfield.

            The jury found Hanson guilty of second-degree assault.  Hanson appeals.

D E C I S I O N

            Sufficiency of the Evidence

            When the sufficiency of the evidence is challenged, this court views the evidence in the light most favorable to the verdict and assumes that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  The verdict will not be overturned if, giving due regard to the presumption of innocence and to the prosecution's burden of proving guilt beyond a reasonable doubt, the jury reasonably could have found the defendant guilty of the charged offense.  State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).

            Hanson argues that the evidence was insufficient to support the jury's guilty verdict because the state did not prove the victim was not lying.  The state needed to prove Hanson guilty of assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (1998).  Assault includes "[a]n act done with intent to cause fear in another of immediate bodily harm or death."  Minn. Stat. § 609.02, subd. 10 (1998).  "With intent to" means "that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result."  Minn. Stat. § 609.02, subd. 9(4) (1998).  Proving that the victim is not lying is not part of the state's burden of proof.

            The jury had the opportunity to observe both Hanson and the victim as they testified.  "Credibility determinations of conflicting oral testimony are for the finder of fact and rarely disturbed on appeal."  State v. Norregaard, 380 N.W.2d 549, 552 (Minn. App. 1986), aff'd as modified, 384 N.W.2d 449 (Minn. 1986).  See State v. Newman, 408 N.W.2d 894, 900 (Minn. App. 1987) (it is the exclusive function of the jury to weigh credibility of witnesses and jury is entitled to believe a victim's account of events). 

            In addition, despite Hanson's claim to the contrary, Officer Stanfield's testimony corroborated the victim's testimony.  Stanfield testified that the victim's testimony at trial was consistent with what the victim reported the night of the incident.  See State v. Halvorson, 506 N.W.2d 331, 335-36 (Minn. App. 1993) (victim's testimony corroborated by consistent statements given to police immediately after the crime). 

            We find that the evidence was sufficient to support the jury's verdict.

            Assistance of Counsel

            In his pro se supplemental brief, Hanson alleges he was denied the effective assistance of counsel at trial.  We note first that "[g]enerally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal."  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).

            To succeed on a claim of ineffective assistance of counsel, 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.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted).  There is, however, a strong presumption that a counsel's performance fell within the range of reasonableness.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

            Hanson has not cited any evidence or relevant caselaw to show that his trial counsel's representation was unreasonable.  Generally, assignment of error in a brief based on "mere assertions" and not supported by argument and authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Hanson fails to offer any reasons as to why the outcome of his trial would have been different if counsel had met with him more than a few times.  See Jones, 392 N.W.2d at 236-37 (even if there were errors in a counsel's performance, this court does not find ineffective assistance of counsel unless defendant was prejudiced as a result of the errors).  There is no evidence that Hanson's counsel did not prepare for trial.  Further, upon review of the trial transcript, we conclude counsel was familiar with the facts and arguments.

            Because Hanson has failed to show that the outcome of his trial would have been different had he had additional meetings with counsel, we conclude his claim is without merit.  See Gates, 398 N.W.2d at 561-62 (court may dispose of ineffectiveness claim solely by finding failure to prove outcome may have been different).

            Motion to Strike

            Respondent moves to strike portions of Hanson's pro se supplemental brief as containing matters outside the record.  The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.  Minn. R. Civ. App. P. 110.01.   Matters outside the record on appeal may not be considered by an appellate court and must be stricken.  Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987).

            Respondent moves to strike a sentence that Officer Stanfield was a "close friend to the [victim]."  At trial, Stanfield testified:

Q:        Officer Stanfield, were you acquainted before this incident with [the victim]?

 

A:        Yeah, I have been, yes.

 

Q:        You've had contact with him because of his employment as park security?

 

A:        Yes, partly, yep.

 

Hanson's characterization is simply argument based on an inference drawn from the record.  The sentence will not be stricken.

            Respondent also moves to strike portions of Hanson's brief that state that Officer Stanfield did not take statements from any other witnesses to the incident, and when Hanson was arrested, no pictures of his injuries were taken.  Stanfield testified at trial that he identified the primary witnesses to the incident, the victim and a Mr. Saxton.  He did not talk to any other witnesses nor employees of the bar, and he could not reach Mr. Saxton for a statement.  He also testified that he saw marks on Hanson's face, but did not take his statement or take pictures of his injuries.  There is support in the record for the statements and they will not be stricken.

            Respondent also moves to strike portions of Hanson's pro se brief concerning his trial counsel.  Hanson claims that his appointed trial counsel met with him only once before trial.  At the sentencing hearing, Hanson stated that he would be appealing his case because he did not feel he was adequately represented by the public defender and spoke with him only once before his trial.  There is support in the record for the statements and they will not be stricken. 

            Affirmed; motion denied.