State of Minnesota, Respondent, vs. Joseph Kenneth Belling, 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This opinion will be unpublished and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

C7-03-161

 

State of Minnesota,
Respondent,
 
vs.
 
Joseph Kenneth Belling,
Appellant.

 

Filed December 9, 2003

Affirmed

Peterson, Judge

 

Douglas County District Court

File No. K602225

 

Mike Hatch, Attorney General, Jennifer A. Service, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2124; and

 

Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN  56308 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

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

PETERSON, Judge

In this appeal from convictions of second-degree assault and reckless discharge of a firearm, appellant Joseph Kenneth Belling argues that (1) the district court committed plain error when it failed to instruct the jury on self-defense and defense of property; (2) his attorney's failure to request these instructions denied him the effective assistance of counsel; and (3) the district court erred in denying the jury's request during deliberations for a copy of a 911 call made by appellant's friend.  We affirm.

FACTS

            At about 7:45 a.m., Belling's wife called the Douglas County Sheriff's Department and reported that Belling had been drinking heavily and was talking about a real-estate deal that was going to bring him wealth and power and about killing anybody who got in his way or spoke ill of him.  Douglas County Sergeant David Ahlquist, Douglas County Chief Deputy Troy Wolbersen, and Sheriff's Deputy Wade Lerfald decided to go to Belling's residence and do a routine welfare check on him.  Patrol deputies had previously gone to Belling's residence on a similar welfare check.  The report from the previous check stated that Belling had a lot of guns in various locations in his house, some of which were loaded. 

            The officers decided that the two officers in plain clothes would approach Belling's house, and the uniformed officer would stay out of sight in the patrol car.  In the driveway to Belling's residence, the officers saw two vehicles that Belling's wife had described as belonging to them and a third vehicle that she had not mentioned.  The officers ran a check on the third vehicle's license number and learned that the registered owner was Jeff Swansen, whose name Belling's wife had mentioned in connection with the real-estate deal. 

            Ahlquist testified that as he and Wolbersen approached Belling's house, their sidearms were holstered and concealed beneath their waist-length winter coats.  The officers entered Belling's garage through an open overhead door and walked up to a door leading into the house.  When Ahlquist knocked on the door, conversation inside the house stopped.  Then Ahlquist heard someone ask, "Should I answer the door, Joe?"  Ahlquist did not hear a response, so he knocked on the door again.  Someone inside the house pounded forcefully on the inside of the door. 

            Ahlquist testified that the pounding on the inside of the door was an unusual reaction that caused him and Wolbersen to step back and to the side of the door.  Ahlquist testified that as he stepped away from the door, he said in a very loud and clear voice, "This is the Sheriff's Office.  Would you open the door, please?"  Someone inside again pounded on the door, this time even more forcefully.  Ahlquist testified that the aggressive response made the officers fear for their safety, so they left the garage and went behind a shed, where they could not be seen from the house.  Both officers had their guns drawn by the time they reached the shed.

            Ahlquist used a cell phone to call Belling's house.  After identifying himself by name and saying that he was from the sheriff's office, Ahlquist asked to talk to Belling.  Ahlquist heard the person who answered the phone ask Belling if he wanted to talk to a sheriff and heard a voice yell "no" and utter an obscenity.  Ahlquist then heard a deep male voice say, "It's time to lock and load."  As Ahlquist called for back-up, he and Wolbersen heard a gunshot from inside the house.  Wolbersen testified that as he and Ahlquist moved away from the shed to take cover behind a retaining wall, more shots were fired. 

            The officers saw a man, later identified as Swansen, talking on a cell phone and walking down the driveway.  Swansen was talking to the 911 dispatcher.  Swansen reported that when the first shot was fired, he thought Belling had killed himself.  When Swansen heard the second shot, he assumed that Belling was okay.  Swansen admitted loading a shotgun in Belling's house.  During a period of 20 to 25 minutes, more than eight shots were fired from the house.  Some of the shots hit Ahlquist's squad car.  All of the shots were fired when the officers were behind the shed or even farther away from Belling's house.  Some of the shots were fired after Ahlquist and Wolbersen went inside a house that was four houses away from Belling's house. 

            Sergeant Brian Schlueter, a negotiator for the Otter Tail County Special Response Team, was one of the officers who responded to the call for back-up.  He arrived at about 11:30 a.m.  Schlueter called Belling's cell phone and home phone several times, and, at about 12:15 p.m., Belling answered.  Belling admitted firing shots but denied trying to hit anyone, stating that he had fired into the air and shot the tires and gas tank out of a car in his driveway.  Belling told Schlueter that there were three people running around in his yard and he did not know who they were. 

            After several phone calls, Belling came out of the house, and officers subdued him and took him into custody.  A blood sample taken from Belling at 7:50 p.m. showed that his alcohol concentration was .25.

            Belling was charged by complaint with two counts of first-degree assault in violation of Minn. Stat. § 609.221, subd. 2 (2000) (use of deadly force against a peace officer); two counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2000) (assault with a dangerous weapon); and one count of intentional discharge of a firearm under circumstances that endanger the safety of another in violation of Minn. Stat. § 609.66, subd. 1a(a)(2) (2000). 

            A tape of Swansen's 911 call was played during trial.  At the beginning of the call, Swansen said to the dispatcher, "we got some guys outside with a gun."  The dispatcher explained that the men were police officers who had come to check on Belling's welfare.    Swansen stated that he and Belling were in the process of starting a business and had everything under control until the two undercover officers showed up.  Swansen said that when the officers arrived, he and Belling "freak[ed] out" because "we don't know who these guys are . . . everybody's got enemies." 

            A jury found Belling guilty of intentional discharge of a firearm and the two counts of second-degree assault and not guilty of the two counts of first-degree assault.  The district court sentenced Belling to concurrent terms of 48 months each for the second-degree assault convictions. D E C I S I O N

I.

Belling argues that the district court erred when it failed to give the jury self-defense and defense-of-property instructions.  An appellate court reviews a district court's jury instructions for abuses of discretion and errors of law.  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).

            Under Minnesota law, 

            reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: 

                        . . . .

 

            (3) when used by any person in resisting or aiding another to resist an offense against the person; or

            (4) when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession, in resisting a trespass upon or other unlawful interference with such property[.]

 

Minn. Stat. § 609.06, subd. 1 (2000).

Self-defense

            A defendant is entitled to an instruction on his theory of the case only if there is evidence to support it.  State v. Coleman, 373 N.W.2d 777, 781 (Minn. 1985).  An element of self-defense in a criminal case is the "defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger."  State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). 

[A] defendant claiming self-defense carries the burden of going forward with evidence to support his or her claim.  The burden is one of production, and requires the defendant to come forward and present a sufficient threshold of evidence to make the defense one of the issues of the case.

 

State v. Soukup, 656 N.W.2d 424, 429 (Minn. App. 2003) (citation and quotation omitted), review denied (Minn. Apr. 29, 2003).

A self-defense instruction is not required where there is no evidence to support a finding that appellant had reasonable grounds to believe that the force he used was reasonably necessary to prevent immediate bodily harm upon himself.  The instruction is needed only if appellant sufficiently raises the defense by creating or raising a reasonable doubt that his use of force was justified.

 

State v. Stephani, 369 N.W.2d 540, 546 (Minn. App. 1985) (citations omitted), review denied  (Minn. Aug. 20, 1985).  The state need only disprove one element beyond a reasonable doubt to defeat a self-defense claim.  State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).

            "[A]n individual may only use reasonable force based upon the circumstances of the situation."  State v. Glowacki, 630 N.W.2d 392, 402-03 (Minn. 2001).  Although a reasonableness determination is generally an issue for the fact-finder, the question may be decided as a matter of law when no reasonable mind could draw an adverse inference.  Id. at 403.

Belling argues that Ahlquist and Wolbersen approached the house with their weapons drawn, but the only evidence in the record specifically addressing when the officers drew their weapons shows that they did not draw them until they were retreating from the house.  When Belling began shooting, he was inside his house, and the officers were taking cover behind a shed.  There is no evidence that anyone was pointing a gun at Belling or that anyone even knew where Belling was in the house.  As a matter of law, the evidence that Belling produced is not sufficient to support a finding that Belling had reasonable grounds to believe that he was in imminent danger of death or great bodily harm or that the shooting he did was reasonably necessary to prevent any immediate harm.  Because Belling failed to satisfy his burden of going forward with the evidence on at least one element of self-defense, the district court did not err by not giving a self-defense instruction.

Defense of property

As with self-defense, the force that may be used to resist a trespass upon or other unlawful interference with real or personal property is limited to "reasonable force."  Minn. Stat. § 609.06, subd. 1(4).  See State v. Carothers, 594 N.W.2d 897, 904 (Minn. 1999) (stating elements of defense of dwelling include whether "the defendant's judgment as to the gravity of the situation was reasonable under the circumstances" and "whether the defendant's election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended"). 

When Belling began shooting, there were two people carrying guns on his property.  But there is no evidence that they were interfering with Belling's property in any way.  Even if Belling believed that the people with guns were trespassing, there is no evidence that would support a finding that it was reasonable under the circumstances for him to elect to shoot a gun to defend his property.  Because Belling failed as a matter of law to satisfy his burden of going forward with evidence of an element of defense of property, the district court did not err by not instructing the jury on defense of property.

II.

            Belling argues that his counsel's failure to request jury instructions on self-defense and defense of property constituted ineffective assistance of counsel.

A reviewing court may consider an ineffective-assistance-of-counsel claim on direct appeal when the existing record is sufficient to allow proper review without additional fact finding.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  To succeed on a claim of ineffective assistance of counsel, "[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.'"  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)).

            Because Belling was not entitled to a self-defense or a defense-of-property instruction, his counsel's failure to request the instructions was not ineffective assistance.  See Sullivan v. State, 585 N.W.2d 782, 785 (Minn. 1998) (holding that ineffective-assistance-of-appellate-counsel claim based on ineffective-assistance-of-trial-counsel claim failed because underlying claim regarding trial counsel's performance was without merit).

III.

            The rules of criminal procedure provide:

            1.  If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom.  The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

 

            2.  The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

 

Minn. R. Crim. P. 26.03, subd. 19(2).  The district court has broad discretion under the rule.  State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991).  The district court's "discretion is reviewable pursuant to an abuse-of-discretion test."  Id. at 515.  When exercising its discretion, three considerations the trial court should take into account are

            (i) whether the material will aid the jury in proper consideration of the case;

            (ii) whether any party will be unduly prejudiced by submission of the material; and

            (iii) whether the material may be subjected to improper use by the jury.

 

Id. (quoting ABA Standards Relating to Trial by Jury 15-4.1 (2d ed. 1980)).  The district court's broad discretion allows it to deny reasonable as well as unreasonable requests.  State v. Rean, 421 N.W.2d 303, 307 (Minn. 1988).

            During deliberations, the jury requested a copy of Swansen's 911 call.  The district court stated the following reasons for denying the request:

            My philosophy is not to get into the business of rereading things to the jury.  I told them many times in the instructions that they have to rely on their own recollection of the testimony and this is what was said.

 

            They had the transcript for 24 hours, by my mistake, so the transcripts have been sitting there.  All they have to do is read it and write on a piece of paper they also had whether it's important or whether they choose to do it or not.

                        . . . .

 

I have another reason why.  Another difficulty I have with this is Mr. Swansen was not a witness in this trial.

 

            What we have is a 911 call from him during which he explained what he perceived or claimed to be happening in the house, which may or may not have been true.

 

            He's not subject to cross-examination because he took the Fifth Amendment.  And so to have that played back, to me, is highlighting it, especially the situation where he testified but he didn't testify because he wasn't subject to cross-examination or even direct examination, actually.

 

            Both parties acknowledge that there are numerous Minnesota appellate court decisions upholding the denial of a jury's request to review evidence.  See, e.g., State v. Ray, 659 N.W.2d 736, 747-48 (Minn. 2003); State v. Lane, 582 N.W.2d 256, 260 (Minn. 1998); State v. Fedor, 628 N.W.2d 164, 171 (Minn. App. 2001).

            An exception is State v. Spaulding, in which the supreme court held that the district court erred in denying a deadlocked jury's request to review defendant's testimony when the court "categorically refused to honor any requests for rereading evidence" and "refused to exercise its discretion at all by determining at the outset of deliberations, and before any requests from the jury, that no testimony would be reread."  296 N.W.2d 870, 877-78 (Minn. 1980)

            Belling argues that the district court erred in denying the jury's request based on a general philosophy against rereading testimony, which, under Spaulding was an improper basis for denying the request.  But the district court did not reject the request only because of a general philosophy against rereading testimony.  The court also stated a second reason, the fact that Swansen did not testify at trial and, therefore, was not available for cross-examination.  A finding that rereading testimony will give undue prominence to it is a legitimate reason for denying a request to reread testimony.  Lane, 582 N.W.2d at 260.  The district court did not abuse its discretion by denying a request that could emphasize Swansen's perception of events when Swansen was not available for cross-examination.

IV.

            Belling raises additional issues in a pro se supplemental brief.  He argues that the jury was biased against him because all of the jurors were females.  But Belling does not provide any citation to the record showing that this issue was raised before the district court.  Generally, issues not raised before the district court will not be considered on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Therefore, we decline to consider this issue.

            Belling also argues that the prosecutor committed misconduct by refusing to allow Swansen to testify.  But the state did subpoena Swansen to testify.  It was Swansen's counsel, not the prosecutor, who advised Swansen to take the Fifth Amendment.

            Belling next argues that his counsel was ineffective in advising him not to testify.  But the record shows that defense counsel simply gave Belling his opinion as to why Belling should not testify and that Belling understood that he was the person who would ultimately decide whether he would testify.  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).  Belling also argues that defense counsel did not effectively cross-examine Wolbersen.  But he does not specify how additional cross-examination would have helped his case.  An argument in a pro se brief that is unsupported by argument or citation to legal authority is deemed waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).

            With respect to his sentence, Belling argues that the district court erred in departing upward durationally from the presumptive term of 36 months and sentencing him to 48 months for each of the second-degree assault convictions.  Absent a clear abuse of discretion, the district court's decision to depart from the sentencing guidelines will not be reversed.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  Before the district court may depart from the sentencing guidelines, "it must articulate substantial and compelling reasons justifying the departure."  Id.  The presence of even one aggravating factor may be sufficient to justify a departure from the presumptive sentence.  State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985).

            The district court stated the following reasons for the departure:  Belling put not only the police officers but everyone in the neighborhood in physical jeopardy; he showed a complete lack of remorse; and he fired numerous shots over a substantial time period.  These are valid reasons supporting an upward departure.  See, e.g., State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987) (factors included number of shots fired and risk to public); State v. Woelfel, 621 N.W.2d 767, 775 (Minn. App. 2001) (lack of remorse was appropriate consideration in deciding whether to depart durationally), review denied (Minn. Mar. 27, 2001); State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990) (defendant fired shots into a populated area), review denied (Minn. Jan. 14, 1991).

            In his pro se brief and a pro se reply brief, Belling raises additional evidentiary issues relating to his self-defense and defense-of-property claims, and the denial of the jury's request to review the 911 call.  These arguments are without merit.

            Affirmed.