In re the Marriage of: Linda Lou Olson, petitioner, Respondent, vs. Neil Henry Olson, 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This opinion will be unpublished and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
CX-99-66

State of Minnesota,
Respondent,
 
vs.
 
Peter Grzeskowiak,
Appellant.

 

Filed October 26, 1999
Affirmed
Crippen, Judge

Polk County District Court
File No. K396891

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, Suite 101, 223 East Seventh Street, Crookston, MN 56716 (for respondent)

Peter John Grzeskowiak, MCF Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014 (attorney pro se)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

CRIPPEN,

Judge

Appellant Peter Grzeskowiak challenges the district court's denial of his petition for postconviction relief. Appellant contends (1) that the trial court erred by admitting evidence of appellant's two prior convictions; and (2) that he was denied his right to effective assistance of counsel. In his pro se brief, appellant also questions the sufficiency of evidence of his guilt and states numerous other claims of trial court error. After a complete review of the record, we affirm.

 

FACTS

After going to a party with appellant in June 1996, S.H. and appellant left to go to appellant's recreational vehicle (RV). S.H. testified that she expected others from the party to also go to appellant's RV, and when they did not arrive after an hour had passed, she wanted to leave. She testified that appellant then dragged her to the back of the RV, threatened to rape her and finally did rape her. Appellant claims they engaged in consensual sex.

Appellant was charged with third-degree criminal sexual conduct, and the case went to trial in November 1996. During the trial, the court allowed evidence of appellant's two prior drug-related convictions.

In the postconviction appeal, the public defender prepared a brief on appellant's behalf, but appellant chose to submit his own brief instead. The case is decided on appellant's brief.[1]

 

D E C I S I O N

I.

Evidence of a felony conviction is not admissible if more than ten years have elapsed since the date of the conviction unless the court determines, in the interests of justice and with regard for the specific circumstances of the case, that the probative value of the conviction substantially outweighs its prejudicial effect. Minn. R. Evid. 609(b). Absent a clear abuse of its discretion, we must affirm the trial court's evidentiary rulings, including those made under Rule 609. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

In determining whether the probative value of the evidence outweighs its prejudicial effect, the court must examine factors first outlined in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978):

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

The trial court found that by testifying, appellant put his credibility directly at issue, and credibility was central to the issue because there were no witnesses to the crime. The court noted that appellant had "vigorously attacked the credibility of the victim at trial." The court found that the probative value of the petitioner's previous convictions substantially outweighed their potential for undue prejudice, particularly considering the credibility dispute and the defendant's trial strategy of attempting to portray the victim as "a drug user, abuser, and/or seller."

Appellant's prior convictions were drug-related and therefore not inherently probative of his veracity. But the trial court was permitted to consider that it would be unfair to allow appellant to pursue a strategy of portraying the victim's unreliability, due to drug experiences, without giving the jury the full picture, that is, that appellant was also involved in drugs at one time. See State v. Owens, 373 N.W.2d 313, 317 (Minn. 1985) (holding that the trial court did not err in allowing evidence of a conviction for possession of cocaine in light of evidence elicited by the defense concerning a witness's involvement in drugs, and concluding it would be unfair to prohibit the state from impeaching defendant's credibility on the same basis).

Other Jones considerations also support the trial court's evidentiary ruling. Appellant's prior convictions were not similar to the current charge of criminal sexual misconduct, which favors admitting the evidence. Further, because appellant testified, the admission of the impeachment evidence did not prevent appellant from telling his side of the story; this favors admissibility of the evidence. Finally, appellant's credibility was central to this case because there were only two witnesses to the alleged crime; thus, it was imperative that the jury get as complete a picture of appellant as possible. Having examined the pertinent rules and standards, we conclude the trial court did not abuse its discretion in allowing the evidence. See Ihnot, 575 N.W.2d at 586-87 (allowing evidence of 12-year-old convictions after analysis of the Jones factors showed they were more probative than prejudicial).

The state contends that even if the ruling was in error, it was harmless error that would not support a reversal of the appellant's conviction. This argument has merit. The prosecutor did not question appellant about the facts underlying the convictions, nor did it discuss the prior convictions in its closing argument. Further, the court instructed the jury that the prior convictions were admitted only for consideration in deciding whether appellant was telling the truth and that the convictions could not be considered except as to believability. Because mention of the convictions was brief and without supporting facts and because the trial court adequately instructed the jury on the use of the prior convictions, any error was not prejudicial to appellant and was therefore harmless. See State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (stating that a cautionary instruction directing the jury to consider the prior conviction only as it relates to a defendant's credibility "adequately protects defendant against the possibility that the jury would convict him on the basis of his character rather than his guilt"); c.f. State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998) (stating that if a verdict was unattributable to an error, the error is harmless beyond a reasonable doubt).

 

II.

When reviewing a claim for ineffective assistance of trial counsel, "there is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance." Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998) (citations omitted). To prevail on the claim, appellant must prove that his attorney's representation "fell below an objective standard of reasonableness, and that, but for the attorney's errors, the result would have been different." Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998). Matters of trial strategy are within a counsel's discretion, and will not support a claim of ineffective assistance of counsel. State v. Shoen, 578 N.W.2d 708, 717 (Minn. 1998).

In his opening statement, appellant's trial counsel conceded that appellant had sex with S.H. Appellant argues this was ineffective assistance of counsel because appellant did not agree to concede this element of the crime. At trial, appellant did not object to his attorney's strategy or version of events and testified that he and S.H. had consensual sexual intercourse. It is evident that appellant felt he was not guilty because he felt the sex was consensual, not because sexual contact did not occur. Counsel's choice to pattern trial strategy consistent with appellant's testimony was not ineffective assistance of counsel. See State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992) (concluding defendant did not receive ineffective assistance, noting that at no time did appellant disclose any objection to or dissatisfaction with his attorney's trial strategy of conceding certain elements).

 

III.

Appellant's pro se brief contains numerous allegations, most of which challenge the sufficiency of the evidence against him at trial. In considering a claim of insufficient evidence, the reviewing court is not to disturb the verdict if the jury, acting with due regard for the presumption of innocence and the prosecution's burden to prove guilt beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The court is to engage in a painstaking analysis of the record, but must view the evidence in the light most favorable to the conviction. 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 evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

S.H. testified that appellant dragged her to the back of his recreational vehicle, threatened to rape her, and finally sexually assaulted her. She said that when she finally arrived home, she was distraught; that she sat at the kitchen table and cried until her mother woke up, and then she told her mother she had been raped. S.H.'s mother testified to the same sequence of events. S.H.'s sister testified that S.H. called her that morning and told her that she had been raped by a man named Pete out in the country in a camper.

Detective Richard Blazek testified that S.H. was "teary eyed" and "distraught" when she arrived at the police station to report the assault. Deputy Randy Sondrol took her statement, which was consistent with her trial testimony, and he testified that she appeared "upset and nervous" during the interview. Nurse Susan Walls, who assisted in the sexual-assault examination of S.H., testified that S.H. was upset and crying, and that she noticed bruises on S.H.'s right thigh. An officer was later sent out to S.H.'s residence to take pictures of S.H. and her bruises, which the officer believed were recent.

Assuming, as we must, that the jury believed the state's witnesses and disbelieved any evidence to the contrary, and with due regard for the presumption of innocence and the beyond-a-reasonable-doubt standard of proof, the jury could have reasonably determined that the defendant was guilty of the charged offense based on the above evidence. Therefore, the jury's verdict must not be disturbed.

Appellant's brief contains other general allegations of misconduct that are neither explained nor documented. A careful review of the record fails to show the occurrence of error that deprived appellant of a full and fair trial. Thus, we conclude appellant's claims are without merit under the law.

 

Affirmed.

[1] We deny appellant's request to accept a second, "clarifying" brief, and we find no merit in appellant's demand that further evidence be produced for purposes of the appeal proceedings. We also confirm the court's determination to deny a stay of appellant's sentence.