State of Minnesota, Respondent, vs. Michael Joseph Alkire, Appellant.

State of Minnesota, Respondent, vs. Michael Joseph Alkire, Appellant. A04-586, Court of Appeals Unpublished, May 3, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-586

 

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Joseph Alkire,

Appellant.

 

Filed May 3, 2005

Affirmed Hudson, Judge

 

Kanabec County District Court

File No. KX-03-403

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, Minnesota 55051-1351 (for respondent)

 

William V. Faerber, Vermuelen Law Office, P.A., 26 North Seventh Avenue, St. Cloud, Minnesota 56303 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this appeal from his convictions of first-degree burglary, attempted fourth-degree criminal sexual conduct, and fifth-degree criminal sexual conduct, appellant argues that he was denied effective assistance of counsel, that there is insufficient evidence to support the convictions, and that the trial court abused its discretion by sentencing appellant to an upward dispositional departure.  We affirm.

FACTS

            A jury found appellant guilty of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (2002); attempted fourth-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.345, subd. 1(c) and 2 and 609.17, subd. 1 (2002); and fifth-degree criminal sexual conduct in violation of Minn. Stat. § 609.224, subds. 1, 2 (2002).  The convictions were based on an altercation between appellant Michael Alkire and victim, K.P.

On June 24, 2003, K.P. answered appellant's knock at her front door.  K.P. was 16 at the time and home alone.  K.P. knew appellant because he had dated her mother from September 2001 to January 2003.  K.P. told appellant that she was leaving and shut the door, but appellant entered the house anyway. 

K.P. walked toward her bedroom when appellant grabbed her by the shoulders and threw her to the floor.  Appellant climbed on top of K.P., put his hand up her shirt, and started to unbuckle her pants.  Appellant touched K.P.'s clothed genital area and her breasts with his hand.  Appellant repeatedly told K.P. to "take it."  K.P. tried to get appellant off by kicking and pushing on his shoulder.

K.P. was able to push appellant off when the phone rang.  K.P. answered the phone and ran back to her room.  She heard the front door shut and assumed appellant left.  K.P. locked the front door.  K.P. called her mother's best friend, Tracy Troupe.  When Troupe answered the phone, K.P. was "crying really hard" and was scared and frightened.  K.P. told Troupe that appellant had been at her house and "had her on the floor."  Troupe called the police, then called K.P. back. 

While Troupe was on the phone with K.P., appellant returned to the house.  Troupe could hear appellant in the background swearing at K.P. and telling her to get off the phone.  While K.P. was talking to Troupe, a dispatcher called on another line.  The dispatcher learned that appellant was present and testified that K.P. was "terrified."  K.P. told the dispatcher that appellant had pushed her down.  The dispatcher kept K.P. on the phone because she could tell that appellant had broken into the house and was alone with K.P. 

Police officers and a state patrol officer arrived and found K.P. "crying very hysterically" in her bedroom.  K.P. told the officers that appellant entered the house against her wishes, pushed her down to the floor in the living room, and "tried to do things to her."  When asked to elaborate, K.P. replied, "He tried to have sex with me."  Police officers testified that the outside of the door was dented with a footprint.  Several witnesses testified that appellant was intoxicated. 

Appellant admitted being at K.P.'s house on June 24, 2003, but he denied the charges.  This appeal follows.

D E C I S I O N

I

Appellant argues that he was denied effective assistance of counsel because his trial counsel was insufficiently prepared and failed to timely move for a new trial.

To make a successful ineffective-assistance-of-counsel claim a criminal defendant must allege facts that affirmatively show that (1) counsel's representation fell below an objective standard of reasonableness; and (2) but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. 688, 694, 104 S. Ct. 2064, 2068).  We need not address both elements "if the defendant makes an insufficient showing on one."  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. 

Appellant argues that his counsel was insufficiently prepared for trial and consequently failed to adequately cross-examine respondent's witnesses on "important issues," failed to make numerous "important objections" to improper and leading questions, and failed to explore "potential problems" with "important evidence" introduced by respondent, including his counsel's (1) failure to explore whether the dent in K.P.'s door matched the shoes appellant was wearing when arrested, and (2) failure to subpoena Todd Flan as a witness.  Finally, appellant argues that his counsel failed to timely move for a new trial.

Here, appellant has not demonstrated that but for counsel's errors, there is a reasonable probability that the results of the proceeding would have been different.  Although appellant makes broad, sweeping claims that his trial counsel failed to adequately cross-examine prosecution witnesses and failed to object to the prosecutor's improper and leading questions, he only specifically identifies two alleged errors.  But neither of those claims of error show that appellant was prejudiced.  See Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977) (stating that insufficient preparation has been the ground for finding ineffective assistance of counsel, but appellant must show prejudice from the insufficient preparation).

Initially, there is no basis to conclude that appellant's counsel's failure to explore whether the dent in the door matched appellant's shoes prejudiced appellant because none of the state's witnesses claimed that the dent in the door matched appellant's shoes.  Moreover, whether appellant entered K.P.'s locked house during his second visit on June 24, 2003, by kicking in the door is irrelevant because the assault occurred during the first visit when he entered through the unlocked door.  Second, respondent has not shown that he was prejudiced by his trial counsel's failure to subpoena Todd Flan.  In conclusory fashion, appellant simply states that Flan's testimony would have "potentially impacted on the credibility of [K.P.]."  Thus, appellant failed to establish that the impact of Flan's testimony would have led to a different trial result. 

Finally, appellant has not demonstrated that he was prejudiced by his counsel's failure to timely move for a new trial.  At the beginning of the sentencing hearing, appellant's counsel moved for a new trial on the basis that he was not sufficiently prepared for trial and because the evidence did not support the jury's guilty verdicts.  Defense counsel explained that if the trial court had granted a continuance before trial, he would have been in a better position to obtain a favorable verdict for appellant and that the lack of adequate time for preparation adversely affected his representation of appellant.  Although appellant's counsel did not move for a new trial until March 2, 2004, three months after the motion was due, this alleged error was not prejudicial to appellant.  See Minn. R. Crim. P. 26.04 (stating that a motion for new trial must be brought within 15 days from entry of the verdict).  Significantly, the trial court stated that appellant's counsel was certainly prepared, presented a competent defense, and did a good job, indicating that the motion would have been denied had it been timely filed. 

Appellant has not demonstrated that but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different.  Accordingly, appellant has not met his burden of proving he received ineffective assistance of counsel.

II

Appellant argues that the evidence was insufficient to support his convictions.  Specifically, appellant argues that the evidence does not establish a nonconsensual entry into the residence, the record lacks any corroborating evidence supporting the allegation that a physical or sexual assault occurred, and K.P.'s testimony was unreliable.

In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

First-degree burglary requires nonconsensual entry into a building with intent to commit a crime, in addition to one of three additional factors: (1) that the building is an occupied dwelling; (2) the burglar possesses a dangerous weapon; or (3) the burglar assaults a person within the building.  Minn. Stat. § 609.582, subd. 1 (2002).  Attempted fourth-degree criminal sexual conduct requires a substantial step toward the use of force or coercion to accomplish sexual contact.  Minn. Stat. §§ 609.345, subd. 1(c) (2002), 609.17, subd. 1 (2002).  Fifth-degree criminal sexual conduct requires a defendant to engage in nonconsensual sexual contact.  Minn. Stat. § 609.3451, subd. 1(1) (2002).

            Here, the evidence was sufficient to establish a nonconsensual entry into the residence because this court assumes that the jury believed K.P.'s testimony and disbelieved appellant's.  See Moore, 438 N.W.2d at 108.  Appellant testified that after she opened the door, she told appellant that she was leaving and shut the door.  Appellant then entered through the unlocked front door without K.P.'s consent.  Further, appellant provides no legal support for his argument that to establish a nonconsensual entry the state was required to show that the house was in disarray. 

            Appellant's argument that the record lacks any corroborating evidence to support K.P.'s allegations also lacks merit.  The testimony of the victim in a criminal sexual conduct case need not be corroborated.  See Minn. Stat. § 609.347, subd. 1 (2002); State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977); State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993); State v. Heinzer, 347 N.W.2d 535, 538 (Minn. App. 1984).  Additionally, there is no authority to support appellant's argument that the victim must sustain bruises, cuts or abrasions in order to find that a sexual assault has occurred.

            Finally, we see no inherent inconsistency between the victim's testimony at trial that during the altercation appellant told her to "just take it," and her statement to the state trooper that during the altercation appellant told her, "Don't force it."  A jury could have concluded that appellant made both statements during the assault.  But in any event, a jury could have found that the statements were not necessarily inconsistent, as both statements indicate that appellant did not want K.P. to fight back while he sexually assaulted her. 

            On this record, the evidence was sufficient to sustain appellant's convictions.

III

Appellant argues that the trial court abused its discretion by sentencing appellant to an upward dispositional departure following appellant's conviction of first-degree burglary.[1]  

            The decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure."  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).

            The trial court found that appellant was particularly unamenable to probation, stating:

[Appellant] is particularly unamenable to treatment in a probationary setting.  He indeed has no remorse and instead sees himself as the victim here.  Based upon all those factors, based upon the lengthy criminal history in Alaska and the demonstrated failures to comply with the conditions of probation, based upon the assessment's conclusion that he is not amenable to sex offender treatment and is a risk to the community safety with a high risk to reoffend, the court intends to grant the motion for an upward dispositional departure.

 

The trial court sentenced appellant to 27 months, with 18 months executed and 9 months on supervised release.  The trial court sentenced appellant to concurrent terms of 13 and 1/2 months and 365 days for the other convictions.  The presumptive sentence for first-degree burglary committed by an offender with a criminal history score of one is a stayed sentence of 27 months.  See Minn. Sent. Guidelines IV, V. 

            Appellant argues that the evidence presented to the trial court fails to support either a finding of unamenability to probation or lack of remorse.  Appellant argues that the information regarding appellant's criminal history in Alaska was unreliable because there were no reasons given for the probation violations.  Appellant also argues that his alleged lack of remorse is not an adequate basis for a dispositional departure because appellant "has every right to maintain his innocence even after a finding of guilt by a jury." 

            Here, the trial court did not abuse its discretion in relying on appellant's criminal record from Alaska, which established that appellant was convicted of criminal offenses involving domestic violence and has an outstanding warrant for failing to complete a domestic-violence program.  Furthermore, there was sufficient evidence without the Alaskan criminal record for the trial court to conclude that appellant was unamenable to probation.  The psychosexual evaluation from Five County Mental Health Center concluded that appellant is not amenable to outpatient sexual-offender treatment and presents a very high risk to offend.  Additionally, the trial court properly relied on defendant's lack of remorse.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982 (recognizing that a court may consider a defendant's remorse (or lack thereof) in granting a dispositional departure).  

            The trial court did not abuse its discretion by sentencing appellant to an upward dispositional departure.

Affirmed.

[1] Appellant's counsel conceded at oral argument that appellant is not entitled to relief under Blakely v. Washington, 124 S. Ct. 2531 (2004), though appellant argued in his brief that the upward dispositional departure imposed on him based on the judge's findings violated his right to a jury trial under Blakely.  See State v. Hanf, 687 N.W.2d 659 (Minn. App. 2004) (holding that the facts supporting dispositional departures in Minnesota are not subject to Blakely's holding that the Sixth Amendment requires the jury to make the findings supporting an increase in sentence), review granted (Minn. Dec. 14, 2004) (stayed pending State v. Allen, No. A04-127 (Minn. App. Aug. 31, 2004), review granted (Nov. 16, 2004)).