Walter R. Fields, Appellant, vs. Maslon Edelman Borman & Brand, LLP, et al., Respondents, and Walter R. Fields, Appellant, vs. Maslon Edelman Borman & Brand, LLP, Respondent, and Maslon Edelman Borman & Brand, LLP, Respondent, vs. Walter R. Fields, Appellant.

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-940

State of Minnesota,

Respondent,

vs.

David (NMN) Eubanks,

Appellant.

Filed March 24, 1998

Affirmed

Mansur, Judge*

Hennepin County District Court

File No. 96078763

John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Mansur, Judge.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

MANSUR, Judge

A jury found appellant Eubanks guilty of assault in the second degree. He appeals, claiming there was insufficient evidence to support the verdict. He also argues several other errors occurred at trial. We affirm.

FACTS

This is an appeal from a jury verdict that resulted in appellant David Eubanks' conviction for second degree assault. On the day of the incident, the victim, Sara Fox, was working in an apartment as a personal care attendant for an infant with special medical needs. That day, Eubanks knocked on the apartment door on three occasions. The first two times Fox opened the door, Eubanks asked her if she wanted to use drugs, if he could get a ride, and if he could use the phone. Both times Fox told Eubanks she was not interested and he left. The third time Fox answered Eubanks at the door, he entered the apartment when Fox turned away to care for the infant. Once inside the apartment, Eubanks picked up a knife and threatened Fox and the infant. He attempted to force her to smoke crack cocaine, and ultimately left after Fox pretended to smoke it. Testimony from other prosecution witnesses supported Fox's testimony. Eubanks acted as his own attorney throughout the trial. He did not testify. During his cross-examination of Fox and other witnesses, however, he communicated his version of the incident: (1) that Fox was a crack addict who had invited him into the apartment to smoke crack; and (2) that she later fabricated the alleged assault out of fear that she would lose her job if the infant's father found out that she had smoked crack. Eubanks' only defense witness did not contradict Fox's testimony about the assault. The jury returned a guilty verdict and Eubanks appeals.

D E C I S I O N

1. Sufficiency of the Evidence

Eubanks contends there was insufficient evidence for the jury to find him guilty of second-degree assault.

In reviewing a sufficiency of the evidence claim, this court is limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the charged offense.

State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996). We view the evidence in the light most favorable to the jury's verdict and we assume that the jury believed the state's witnesses and disbelieved any contrary evidence. Id. We will not disturb the verdict if the jury found the defendant guilty after it gave due regard to the defendant's presumption of innocence and to the state's burden of proof beyond a reasonable doubt. Id. Determinations of credibility are strictly within the province of the jury. State v. Wilson, 535 N.W.2d 597, 606 (Minn. 1995).

Eubanks asks us to overturn the verdict, alleging that the testimony that Fox gave at trial was so incredible that a reasonable jury could not believe it. Eubanks argues that "[w]hile person addicted to crack cocaine may do many irrational things, forcing a stranger to share one's cocaine is not one of them." Eubanks also argues that Fox's testimony was an attempt to use Eubanks as a scapegoat to cover up her own crack use so that her employer would not terminate her.

Fox testified that: (1) Eubanks threatened to kill her and the child; (2) she feared she was going to be raped; (3) Eubanks repeatedly insisted that she smoke crack; (4) if she did he would leave; and (5) Eubanks had been drinking, smoking crack, and was acting in a strange manner. The apartment owner's testimony and the two police officers' testimony corroborated Fox's testimony. The one witness called by Eubanks did not contradict Fox's testimony of the assault.

The only other theory of the crime presented to the jury was that given by Eubanks during his opening statement, cross-examination of witnesses, and closing statement.

The verdict establishes that the jury believed the state's witnesses. Determinations of credibility are strictly within the province of the jury. Wilson, 535 N.W.2d at 606. Furthermore, we cannot say that the testimony Fox gave to the jury was so unbelievable that we are required to overturn the jury verdict. There was sufficient evidence to find Eubanks guilty of second-degree assault.

2. Additional Issues Raised by Pro Se Brief

First, Eubanks contends the trial court improperly told the jury that he failed to testify, thereby creating a presumption against his innocence. The trial court told the jury:

Defendant has no obligation to prove himself innocent. The Defendant has the privilege not to testify in the Defendant's own defense. This privilege is guaranteed by the federal and state Constitutions. You should not draw any inference from the fact that the Defendant has not testified in this case.

This instruction is taken from CRIMJIG 3.17. 10 Richard D. Hodson, Minnesota Practice, CRIMJIG 3.17 (1990). Before the jury instructions were given, the trial court read all of the proposed instructions to the parties, including the above-cited instruction. The trial court asked Eubanks if he wanted to add anything and Eubanks said no, thereby consenting to the instruction. The trial court's instruction obtained Eubanks' permission and was not error that would entitle Eubanks to a new trial. See State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988) (holding trial court ordinarily should obtain criminal defendant's permission before giving CRIMJIG 3.17, and that a new trial does not follow where the record is silent as to whether the criminal defendant wanted the instruction).

Second, Eubanks contends he was denied a fair trial because he is an African American man convicted of a crime by an all white jury against a Caucasian woman. Eubanks, however, fails to point to any specific instances of juror misconduct, instead relying on a blanket assertion that the jury was racist. An appellant arguing that a jury was biased must show that some or all of the challenged jurors were subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appellant made appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983); see alsoState v. Blais, 379 N.W.2d 236, 238 (Minn. App. 1985) (citing Minn. R. Crim. P. 26.02 and holding no new trial where defendant did not challenge juror for cause after voir dire and did not move to strike entire panel before selection and swearing in), review denied (Minn. Feb. 14, 1986). Here, Eubanks can show none of the above. A blanket assertion that the jury was racially biased, without any objective indication that it was, is insufficient as a matter of law.

Third, Eubanks argues that the jury was tainted during voir dire when the prosecutor referred to the O.J. Simpson trial. There is no record available for our review of voir dire; accordingly, Eubanks cannot support his allegation of bias or prosecutor misconduct. See State v. Evans, 343 N.W.2d 709, 710 (Minn. App. 1984) (no appellate review of voir dire proceedings possible where there was no transcript and appellant did not create record pursuant to Minn. R. Civ. App. P. 110.03). We do note, however, that the prosecution's reference, if it occurred, was ill-advised.

Fourth, Eubanks argues that Fox gave "perjured" testimony because there was a conflict as to who called the police after the incident; Fox testified that she called the police, and the infant's father also testified that he called the police. The witnesses' testimony, while conflicting, did not represent perjury by Fox. See Stufflebean, 329 N.W.2d at 319 (inconsistencies and conflicts between one state witness and another do not constitute false testimony, perjury, or any basis for reversal, especially when the testimony involves details of a traumatic and stressful incident). Eubanks pointed out the inconsistency to the jury. Where a jury hears possible reasons for witness unreliability, yet it chooses to believe that witness, this court must accept the jury's credibility determination. State v. McAdory, 543 N.W.2d 692, 696 (Minn. App. 1996) (citing State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980)).

Finally, Eubanks argues that the prosecutor committed misconduct when, at the Rasmussen hearing, he failed to produce a knife that was later introduced at trial.[1] He also claims that transcripts regarding the knife that were introduced at trial were fabricated and that only one witness, one of the police detectives, was able to identify the knife at trial. These claims are without merit. The knife belonged to the infant's father and was recovered from his apartment. Accordingly, Eubanks had no property interest in the knife, and therefore, it could not have been seized in contravention of his constitutional rights. No Rasmussen hearing for the knife was necessary. See Minn. R. Crim. P. 7.01 (Rasmussen hearing necessary when evidence is obtained through search, seizure, wiretapping, confession, admission, or lineup). Next, contrary to Eubanks' assertion, the knife in question was identified at trial by Fox as the knife that she had used earlier in the day at the apartment. Lastly, after reviewing the trial transcript, it appears that Eubanks' argument as to a fabricated knife transcript relates to a transcription of Eubanks' tape-recorded statement he made to the police.[2] We conclude that Eubanks was not prejudiced because the actual tape, not the transcript, was played and submitted to the jury.

In conclusion, after a review of the entire record, we conclude that there was sufficient evidence presented to the jury to enable it to convict Eubanks of second degree assault. Further, we conclude that Eubanks' pro se issues are meritless.

Affirmed.

[1] We cannot review what occurred at the Rasmussen hearing because no transcript was prepared.

[2] Eubanks argued at trial that his transcribed statement was unreliable because in several places in the transcription, a portion of his statement was omitted because it was inaudible.