State of Minnesota, Respondent, vs. Minda Lavette Washington, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-936

 

State of Minnesota,

Respondent,

 

vs.

 

Minda Lavette Washington,

Appellant.

 

Filed May 20, 2003

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Hennepin County District Court

File No. 01078659

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Melissa Sheridan, 1380 Corporate Ctr. Curve, #320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            On September 20, 2001, appellant Minda Lavette Washington drove her mini-van into a group of minors who were fighting with her two minor sons.  Two boys were injured, and one of them required hospitalization.  Following a jury trial, appellant was convicted of first- and second-degree assault and of criminal vehicular operation.  Minn. Stat. §§ 609.221, subd. 1 (2000) (assault and infliction of great bodily harm), .222, subd. 1 (2000) (assault with dangerous weapon), .21, subd. 2(7) (2000) (causing great bodily harm as result of operating motor vehicle and leaving scene of accident).  She was sentenced to concurrent executed prison terms of 86 and 36 months on the assault convictions and to a concurrent stayed prison term of 17 months on the criminal vehicular operation conviction.

            On appeal, appellant challenges the sufficiency of the evidence to support her convictions and argues for vacation of the sentence she received for criminal vehicular operation because it arose from the same behavioral incident as the first-degree assault conviction.  In a pro se supplemental brief, she challenges the effectiveness of her counsel's representation.

            Because the evidence was sufficient to allow the jury to find appellant guilty of the assaults and of criminal vehicular operation and because her attorney's assistance was not ineffective, we affirm in part.  Because appellant's conviction for criminal vehicular operation arose out of the same behavioral incident as her assault conviction, we reverse in part and remand for vacation of that sentence.

D E C I S I O N

I.

            Appellant challenges the sufficiency of the evidence to support her convictions.  Our review is "limited to a painstaking analysis of the record to determine whether the evidence," viewed in a light most favorable to the verdict, "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 contradictory evidence."  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  The jury is entitled to assess and determine the "credibility and weight given to the testimony of individual witnesses."  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (citations omitted).

            Appellant asserts that the evidence was insufficient because the state presented no direct evidence of her intent and the circumstantial evidence was not compelling enough to discredit her own explanation of the incident.  Intent may be proved by circumstantial evidence, which may include the defendant's conduct, the character of the assault, and events occurring before and after the crime.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).  While an individual may testify regarding his or her intent and offer an explanation for his or her actions, the jury is always free to reject that testimony and to give more weight to the circumstantial evidence.  See State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981) ("person's intent must be determined from his words (if any) and actions in the light of all the surrounding circumstances.") (citations omitted)).  The "best evidence" of a defendant's intent is gleaned from what she actually did.  Id.

            Here, the jury was free to reject appellant's claims that she inadvertently drove her van onto the curb to avoid another vehicle, that she did not intend to hit anyone, and that she did not know that she had hit anyone.  Two of the victims generally agreed that appellant's two sons approached them after speaking to the driver of a blue mini-van and told them that they better "watch out" for the van.  The victims and a number of other eyewitnesses testified that as appellant drove her van through the crowd, one boy was thrown onto her windshield and another was run over.  Appellant acknowledged that at least one person pounded on her window and yelled at her that she had run over someone.  The witnesses testified that appellant backed up, ran over the boy again, and fled the scene at a high rate of speed.  When finally pulled over by a police officer, appellant stated that she was sorry and did not mean to hurt anyone.  She was later heard muttering in the police interview room that no one was supposed to get hurt.  This evidence was more than sufficient to allow the jury to reach the verdict that it did and to support appellant's convictions for assault and criminal vehicular operation.

            In a pro se supplemental brief, appellant asserts that the evidence was also insufficient because no physical evidence was found on her van to link her to the injuries suffered by the two boys.  She insists that the jury should have accepted the testimony of one of her sons, who claimed that one boy suffered his injuries when her son was fighting with him and they fell to the ground, and the acknowledgement by one of the experts that the boy's injuries could have been caused in this manner.  Given the evidence, which included testimony by several eyewitnesses, that appellant drove into the crowd, throwing one boy onto her windshield and driving over another boy at least twice as she backed up and drove away, the jury could reasonably conclude that the boys suffered their injuries not as a result of the fight, but as a result of appellant's conduct.

            Finally, appellant argues that the district court erred in imposing a separate sentence for the criminal vehicular operation conviction because it arose from the same behavioral incident as the first-degree assault conviction, which is prohibited under Minn. Stat. § 609.035, subd. 1 (2000).  The state agrees that this sentence must be vacated.  See State v. Gibson, 478 N.W.2d 496, 497-98 (Minn. 1991) (vacating lesser sentence, where defendant committed felonious act of leaving scene of accident in part to avoid being apprehended for any crime committed in connection with accident).  We therefore reverse the sentence imposed for criminal vehicular operation and remand for vacation of that sentence.  See State v. Gilbertson, 323 N.W.2d 810, 812 (Minn. 1982) (reversing and remanding for vacation of one of the sentences).

II.

            Appellant's pro se supplemental brief raises several claims of ineffective assistance of counsel that are fairly detailed and understandable.  Nevertheless, at the end of her brief, appellant requests that the court "postpone" her appeal to obtain a postconviction evidentiary hearing in order to "expand the record for review regarding [her] claims of ineffective assistance of counsel."

            When the existing record is sufficient to allow proper review without additional fact finding, there is no need for a stay and a postconviction evidentiary hearing.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (reviewing court may consider claims alleging ineffective assistance of trial counsel on direct appeal, where existing record is sufficient to determine those claims without any additional fact finding).  Because no additional fact finding is necessary to decide the ineffective assistance of counsel claims raised here by appellant in her pro se supplemental brief, we will address these claims in this direct appeal.

            To prevail on a claim alleging ineffective assistance of counsel, a defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors."  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted).  "A strong presumption exists that counsel's performance fell within a wide range of reasonable assistance."  Id. (citation omitted).

            Appellant first argues that her attorney's performance was deficient because he engaged in last-minute investigation and failed to conduct his own investigation of the crime scene.  Generally, pre-trial investigation decisions are matters of trial strategy.  Lahue, 585 N.W.2d at 790.  Appellant fails to specify what evidence was overlooked or otherwise not presented to the jury due to the timing or lack of investigation, nor does she explain how additional investigation would have exonerated her.  See id.

            Next, appellant challenges her attorney's failure to object to the introduction of her statements to police after the incident.  These statements, however, were not introduced during the state's case-in-chief.  Rather, one officer testified as a rebuttal witness only after appellant had taken the stand and made statements that contradicted those she had made to the officer immediately after the incident.  No transcript or videotape of appellant's interview was introduced.  This was proper use of rebuttal testimony to impeach statements made by appellant.  See State v. Mattson, 359 N.W.2d 616, 618 (Minn. 1984) (affirming admission of defendant's statements to arresting officers as impeachment testimony on rebuttal, where those statements were inconsistent with his trial testimony); State v. Coleman, 560 N.W.2d 717, 720-21 (Minn. App. 1997) (statements "taken in violation of Miranda" or "in violation of a defendant's Sixth Amendment right to counsel" may be used to impeach defendant's conflicting or inconsistent trial testimony, but cannot be used in prosecution's case-in-chief).

            Finally, appellant challenges her attorney's conduct during voir dire of two potential jurors.  One juror stated that appellant looked familiar because she knew one of the juror's friends.  Upon further questioning, the juror stated that he would feel awkward if his friend knew that he served on appellant's jury and that it would be in the back of his mind during deliberations.  With this disclosure, both the state and defense counsel challenged the juror for cause, and he was excused.  Even if appellant's attorney had opposed the challenge for cause, however, the court would have been obliged to excuse the juror under Minn. R. Crim. P. 26.02, subd. 5(1)1 (juror may be challenged for cause by either party if juror's state of mind, "in reference to the case or to either party, * * * satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging").

            Appellant further challenges her attorney's conduct during voir dire of the only African-American on the jury panel.  This juror was the executive director of a social services agency, who indicated that he knew two people in the criminal justice system, including a particular district court judge and a former prosecutor and chief public defender.  The juror, however, also claimed that he was neutral toward law enforcement and would not know if he knew any of the officers scheduled to testify until he saw them face-to-face.  The juror further claimed that he believed he could be fair to both sides and the fact that he was African-American would have no impact on his decisions either way.

            Both defense counsel and the state passed the juror for cause.  Appellant argues that her attorney should have excused the juror for cause because he expressed familiarity with certain persons in the criminal justice system.  No grounds for such a challenge exist under Minn. R. Crim. P. 26.02, subd. 5(1).  Although appellant's attorney could have exercised a preemptory challenge under Minn. R. Crim. P. 26.02, subd. 6, his failure to do so, a tactical decision, is insufficient to support a claim of ineffective assistance of counsel.  See Tsipouras v. State, 567 N.W.2d 271, 276 (Minn. App. 1997).

            We therefore affirm the convictions and sentences, with the exception of the sentence imposed for criminal vehicular operation, which we reverse and remand for vacation.

            Affirmed in part, reversed in part, and remanded.