State of Minnesota, Respondent, vs. Steven P. Fischer, 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This opinion will be unpublished and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

A03-783

 

State of Minnesota,
Respondent,
 
vs.
 
Steven P. Fischer,
Appellant.

 

Filed July 6, 2004 Affirmed; motion granted

Peterson, Judge

 

Dakota County District Court

File No. K2023676

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal challenging his convictions of first-degree burglary and felony domestic assault, appellant argues that the testimony of his girlfriend and an eyewitness did not establish that he committed any crime other than trespass inside his girlfriend's home.  We affirm and grant the state's motion to strike.

FACTS

 

Appellant Steven Paul Fischer had a romantic relationship and resided with the victim.  The relationship soured, and in April 2002, the victim asked appellant to move out of her home, but she allowed him to stay there on occasion.  After he moved out, appellant was convicted of a harassment/stalking offense arising out of incidents when he repeatedly phoned the victim, left profane messages on her voice mail, and rang her doorbell in the early morning hours.  Appellant was also convicted of two fifth-degree assault charges arising out of incidents involving the same victim.

On October 27, 2002, the victim was at home when she heard a noise from the lower level of the home.  The victim grabbed a hammer to defend herself and went downstairs to investigate.  The victim found appellant in the downstairs bedroom[1] and asked him to leave; appellant refused.  When he came toward her, the victim raised the hammer as if to strike appellant.  Appellant took the hammer from the victim, and she went upstairs and locked herself in her bedroom.  The victim phoned a friend and asked him to come over because appellant was in her home.  She also called her mother and stayed on the phone with her until the friend arrived.

The friend testified that the victim sounded frantic when she phoned him and that she appeared frantic when he arrived approximately three to eight minutes later.  The victim followed the friend downstairs where they saw appellant putting some clothing into a bag.  The friend asked appellant to leave; appellant refused to do so, and their conversation became heated.  The victim also told appellant to leave, and she reached to grab a coat that appellant was putting in his bag.  Appellant grabbed the coat back from the victim and then grabbed the victim's arm.  The friend pushed appellant away from the victim and up against the wall because he was concerned for the victim's safety due to the manner in which appellant grabbed the victim's arm.  Appellant then grabbed the friend in a "bear hug" and the two fell on the bed.  The friend testified that he became fearful for his own safety because of the way appellant grabbed him.  Both men swung at each other.  The friend testified that he hit appellant a couple of times and that if appellant hit him, he did not feel the punch.

            The victim tried to separate the two men and told appellant to leave.  Appellant left only after the victim told him that she was going to call the police.  The victim called the police, and the officers who responded pointed out to the friend that he had a scrape on his arm. The friend did not know how he got the scrape, but he testified that he did not have it before the scuffle.

 Appellant waived his right to a jury trial.  At trial, the victim testified that she still loved appellant and still considered them to be engaged.  She also testified that because the friend was there, she was not frightened of appellant when he grabbed her arm to get the coat, but she was frightened of him when she initially confronted him with the hammer in her hand.

The district court found that appellant committed first-degree burglary when he entered the victim's home without her permission and assaulted both the victim and the friend. The district court also found that appellant committed felony domestic assault when he grabbed the victim's arm with the intent to cause fear of immediate bodily harm when he had two or more prior convictions for assault within the preceding five years. 

D E C I S I O N

 

Appellant argues that the evidence was insufficient to establish that he assaulted Clark or Washington or that he threatened the imminent use of force.  Because appellant waived his right to a jury trial, the district court was the fact-finder.  See Minn. R. Crim. P. 26.01, subds. 1(2), 2 (waiver of jury trial and trial without a jury).  "This court, in reviewing the sufficiency of the evidence in criminal cases, will apply the same standard of review to cases heard before a court without a jury as is applied to those heard by a jury."  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  Accordingly, this court will uphold the district court's findings if, based on the evidence in the record, the district court could reasonably have found the defendant guilty of the crime charged.  Id.  In making this determination, the reviewing court must view the evidence in a manner most favorable to the verdict and assume that the district court disbelieved contradictory testimony.  Id.

Citing State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002), appellant argues that because he is not contesting the credibility of the state's witnesses or the evidence presented by the state, and is only contesting whether his conduct was legally sufficient to establish that he assaulted or threatened the imminent use of force, his case presents an issue of statutory construction, and the appropriate standard of review is de novo.  Appellant misconstrues Colvin.

The issue presented in Colvin was whether violating a no-entry provision of an order for protection (OFP) could satisfy the element of intent to commit an independent crime under the burglary statute.  Id. at 453.  The issue was not whether there was sufficient evidence to convict the defendant.  Colvin argued that, like trespass, violating a no-entry provision of an OFP simply establishes the illegal entry element of burglary, not the element of intent to commit a crime independent of the illegal entry.  Id. at 454; see State v. Larson, 358 N.W.2d 668, 670 (Minn. 1984) (holding that trespass cannot serve as crime committed or intended to be committed to establish burglary), rejected in part on other grounds, Colvin, 645 N.W.2d at 455.  Applying a de novo standard of review, the supreme court interpreted the burglary statute to exclude violating a no-entry provision of an OFP from crimes that can be the basis for the independent crime element of burglary.  Colvin, 645 N.W.2d. at 454.

Appellant does not present an argument concerning the interpretation of the burglary statute.  The substance of appellant's argument is that the evidence was insufficient to prove that he committed assaults against the friend and the victim because the state did not establish that appellant intended to cause fear in another of immediate bodily harm.  Therefore, our standard of review is not de novo.

The state argues that the evidence was sufficient to sustain appellant's convictions of first-degree burglary and felony domestic assault. 

Whoever enters a building without consent and . . . commits a crime while in the building . . . commits burglary in the first degree . . . if:

 

(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building.

 

Minn. Stat. § 609.582, subd. 1(a) (2002).  Here, the crime allegedly committed in the building is assault.  Assault is "(1) [a]n act  done with intent to cause fear in another of immediate bodily harm. . . or (2) [t]he intentional infliction of or attempt to inflict bodily harm upon another."  Minn. Stat. § 609.02, subd. 10 (2002).  "‘Bodily harm' means physical pain or injury, illness, or any impairment of physical condition."  Minn. Stat. § 609.02, subd. 7 (2002).

Appellant does not contest that he entered the victim's home without her permission while she was present.  He only contests that he committed a crime while in the home.  The district court found that appellant assaulted the victim when he grabbed the hammer from her and when he later grabbed her arm and that appellant assaulted the friend when the physical confrontation occurred between the friend and appellant.

            Appellant argues that his conduct in taking the hammer from the victim does not demonstrate intent to harm or hurt the victim.  He asserts that the amount of force used was inconsequential, and, according to the victim's testimony, there was no struggle over the hammer.       

An assault "is in the act done with intent to cause fear, not in whether the intended result is achieved."  State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).  The statute requires only that appellant acted with the intent to cause fear of immediate bodily harm, and intent may be determined from words, actions, and surrounding circumstances.  State v. Kastner, 429 N.W.2d 274, 275 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  Intent is a subjective state of mind established by reasonable inferences drawn from surrounding circumstances.  State v. Obasi, 427 N.W.2d 736, 738 (Minn. App. 1988).

The victim's testimony establishes that when appellant grabbed the hammer from her, she became so frightened that she fled to her upstairs bedroom, locked the door, and phoned for help.  Evidence also establishes that defendant had frightened and intimidated the victim in the past.  Because intent may be inferred from words, actions, and surrounding circumstances, the district court could reasonably infer that appellant intended to frighten the victim by taking the hammer from her.  This inference is sufficient to prove an assault against the victim.

            Appellant asserts that he was justified in taking the hammer and questions why the district court did not consider a self-defense instruction.  But appellant did not request a self-defense instruction, and he did not argue self-defense in his opening or closing arguments or in his oral motion for judgment of acquittal following the state's case-in-chief. 

            Appellant argues with respect to the assault against the friend that the friend's testimony established that the friend was the aggressor.  But appellant's argument ignores the significance of his grabbing the victim's arm after she grabbed a jacket from him.  The friend restrained appellant by pushing him against the wall after appellant grabbed the victim's arm.  The friend testified that he was concerned for the victim's safety when appellant grabbed her arm.  He also testified that when appellant came back at him and grabbed him in a "bear hug," he believed appellant was going to harm him.  As a result of the ensuing scuffle, the friend had a scrape on his arm.

Based on appellant's actions and the surrounding circumstances, the district court could reasonably infer that appellant acted with the intent to cause fear of immediate bodily harm to the friend necessary to establish assault.  The evidence, therefore, was sufficient to find appellant guilty of first-degree burglary.

            Appellant also argues that the evidence does not support his conviction of felony domestic assault.  To obtain a conviction of domestic assault the state needed to prove that appellant acted against a household member[2] by either "(1) commit[ing] an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflict[ing] or attempt[ing] to inflict bodily harm upon another."  Minn. Stat. § 609.2242, subd. 1 (2002).

In finding appellant guilty of felony domestic assault, the district court determined that appellant "grabbed the arm of [the victim] with the intent to cause fear of immediate bodily harm when [appellant had] two or more prior previous convictions for assault within the preceding five years."  Appellant argues that grabbing the victim's arm was not an assault because his intent was to retrieve his coat.  Appellant also argues that the victim's testimony that she was not frightened when appellant grabbed her arm establishes that he did not intend to cause her fear of immediate bodily harm.

Appellant's argument fails to recognize that the crime of assault "is in the act done with intent to cause fear, not in whether the intended result is achieved."  Hough, 585 N.W.2d at 396.  Grabbing the victim's arm could be intended as a show of force to convey to the victim that she needed to be worried about appellant's strength, thereby demonstrating intent to cause fear of immediate bodily harm.  Although the victim testified that because the friend was there, she was not frightened when appellant grabbed her arm, she told police officer Tara Bytheway immediately after the incident that she was so afraid at the time appellant grabbed her arm that she fled upstairs.  Bytheway testified that the victim was "very teary" and "shaken."  Also, Officer Eva Rudolph testified that when she took the victim's statement several hours after the incident, the victim became very emotional and "was very frightened" and started to shake and cry. 

"The resolution of conflicting testimony is the exclusive function of the [fact-finder] because it has the opportunity to observe the demeanor of witnesses and weigh their credibility."  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).  As the sole judge of credibility, a fact-finder is free to accept part and reject part of a witness's testimony.  State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977).  Viewing the evidence in the light most favorable to the verdict, it is apparent that the district court disbelieved the victim's testimony that she was not frightened when appellant grabbed her arm.  This court defers to the fact-finder's determinations of credibility and the weight to be given witness testimony.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

In a pro se supplemental brief, appellant states his version of the events that occurred at the victim's home.  But appellant did not testify at trial about these events.   Appellant began to testify at his trial, but after consulting with his attorney, he chose not to testify.  Therefore, the explanation of events in appellant's pro se brief is outside the record on appeal, and we may not consider it.  Minn. R. Crim. P. 28.02, subd. 8 (stating record on appeal consists of papers filed in trial court, exhibits, and transcript of proceedings); see State v. Taylor, 650 N.W.2d 190, 204 n.12 (Minn. 2002) (noting that an appellate court may not base its decision on matters outside the record on appeal).  We grant the state's motion to strike matters outside the record contained in appellant's pro se supplemental brief.

Appellant also argues that his trial counsel was ineffective because counsel did not investigate, did not call witnesses, did not prepare for trial, and did not prepare to put appellant on the stand.  To succeed in an ineffective-assistance-of-counsel claim,

[t]he defendant 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.  A reasonable probability is a probability sufficient to undermine confidence in the outcome."

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Appellant does not indicate how counsel failed to investigate or prepare for trial, and the only potential witnesses that appellant identifies are the victim's neighbors.  But appellant does not explain what testimony these neighbors could have provided that probably would have changed the outcome of the proceeding.  See State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (stating that a defendant has an affirmative obligation to show that a witness's testimony would have made a difference in the outcome of the proceeding).  Furthermore, decisions about "[w]hat evidence to present to the jury, including which defenses to raise at trial and what witnesses to call, represent an attorney's decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence."  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).

Appellant also does not indicate how counsel failed to prepare to have appellant testify at trial.  The record indicates that, after conferring with counsel, appellant waived his right to testify.  The record reflects that appellant understood the nature of the rights he was waiving and that appellant freely chose not to continue to testify.  Appellant acknowledged on the record that if he testified, he might be prosecuted for another crime.  See State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982) (holding that waiver was valid when defendant understood his right to testify and waived it on the record).

Affirmed; motion granted.

[1] Evidence was submitted that appellant entered through a window that had been nailed shut two days before the offense date.

[2] Appellant does not contest that he and the victim were "household members" as defined by Minn. Stat. § 518B.01, subd. 2(b)(4), (7) (2002).