                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1932

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Jack Arnold Haines,
                                        Appellant.

                                  Filed August 3, 2015
                                        Affirmed
                                     Harten, Judge

                               Steele County District Court
                                 File No. 74-CR-13-723


Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Daniel A. Mcintosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Zachary C. Bauer, Andrew L. Davick, Meshbesher & Spence, Ltd., Rochester, Minnesota
(for appellant)


         Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Harten,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HARTEN, Judge

       Appellant challenges his conviction on the ground that he was deprived of the

effective assistance of counsel because his counsel did not retain an expert to analyze a

recording made during the incident giving rise to the conviction; he also challenges his

sentence, arguing that the district court abused its discretion in denying his motion for a

downward dispositional departure.       Because appellant’s counsel provided effective

assistance and because we see no abuse of discretion, we affirm.

                                          FACTS

       Appellant Jack Haines received a notice that the routine check of the smoke

detectors in his rented townhouse would occur between 8:30 and 10:00 a.m. on 10 April

2013. Before 8:30, appellant removed the smoke detectors from the ceilings, put them on

a kitchen chair, moved his rifle from the second-floor bedroom down to the first-floor

living room, made a blank bullet, and loaded it into the rifle. He then set up and turned

on a digital audio recorder, unlocked the front door, sat in his recliner within reach of the

rifle, and waited.

       The property supervisor (P.S.) for the company that owned the townhouse

complex and the property manager (P.M.) for the complex arrived at 8:38 and knocked

on appellant’s door several times. When P.S. called out, “Management,” appellant did

not respond. P.S. and P.M. entered the townhouse and told appellant they were there to

test the smoke detectors, as required by both the property owner and the local fire

department.


                                             2
         They noticed the smoke detectors lying on a chair. When P.S. picked one up, he

saw that its back cover was missing. P.S. told appellant that, because the smoke detector

could not be replaced without the back cover, they would need to get him a new smoke

detector; he also said that the smoke detectors had to be tested in their locations on the

ceilings. P.S. then looked at appellant, who was about five feet away from him, and saw

that appellant was holding the rifle pointed toward the ceiling and that appellant’s hand

was near the trigger. P.S. was scared but told appellant he was not afraid and had been in

military service.

         Appellant told P.S. and P.M. to check the smoke detectors or leave. According to

them, appellant then lowered the rifle and pointed it at P.S. Because both P.S. and P.M.

were afraid appellant would shoot them, P.S. quickly pressed the button on each smoke

detector, and the two of them left. P.S. then called 911 and reported the incident.

         After they left, appellant replaced the smoke detectors, took the rifle back to his

bedroom, and replaced the blank bullet with a live round. When the police arrived,

appellant told them what he had done but said he had pointed the rifle only at the ceiling,

not at P.S. or P.M. Appellant gave the audio recording to the police, who also took his

rifle.

         Appellant was arrested and taken to jail. After he was read the Miranda warning,

he was interviewed by an officer. He told the officer that (1) earlier on the morning of

10 April, he had brought his rifle down from his bedroom and replaced the live bullet

with a blank; (2) he brought the rifle downstairs to intimidate the people who were

coming to test the smoke detectors; (3) except for telling P.S. and P.M. three times to


                                              3
inspect the smoke detectors or leave, he had said nothing to them; (4) he raised the rifle

when P.S. turned toward the stairs; and (5) he intended to fire into the couch if P.S.

proceeded towards the stairs and did not comply with what appellant wanted him to do.

Appellant was charged with second-degree assault and terroristic threats.

       At trial, the jury heard testimony from P.S., P.M., three police officers, and

appellant, as well as the audio recording. Appellant was found guilty on both counts.

The district court denied appellant’s motion for a downward dispositional departure and

sentenced appellant to the presumptive 36 months in prison.

       On appeal, appellant argues that his trial counsel’s failure to retain an expert to

provide an analysis of the recording deprived him of the effective assistance of counsel

and that the denial of his motion for a downward dispositional departure was an abuse of

the district court’s discretion.

                                      DECISION

1.     Ineffective Assistance of Counsel

       Because ineffective-assistance-of-counsel claims involve mixed questions of law

and fact, we review them de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

A claimant must prove both that counsel’s performance was deficient and that the

claimant was prejudiced as a result, i.e., that “counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052,

2064 (1984). “[Because] it is all too easy for a court . . . to conclude that a particular act

or omission of counsel was unreasonable, Strickland admonishes reviewing courts to


                                              4
judge the reasonableness of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Rhodes, 657 N.W.2d at 844 (quotation

omitted).

       As a threshold matter, review of counsel’s challenged conduct at or near the time

it occurred is best accomplished by a postconviction court, not an appellate court. See

Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[I]nquiry into [trial] counsel’s

conversations with the defendant may be critical to a proper assessment of counsel’s

investigation decisions . . . .”); State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000)

(“Generally, an ineffective assistance of counsel claim should be raised in a

postconviction petition for relief, rather than on direct appeal.”).      Here, because no

postconviction proceeding was held, there is no decision on the ineffective-assistance

claim for this court to review, nor is there any record of what appellant’s trial counsel did

at trial or said to appellant.     Counsel’s performance is presumed to be reasonable,

Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013), and the burden of providing the

appellate court with a record to establish any alleged errors in counsel’s performance is

the claimant’s. State v. Carlson, 281 Minn. 564, 566, 161 N.W.2d 38, 40 (1968); see

also Gail v. State, 732 N.W.2d 243, 248-49 (claimant had not “provided any factual

support for his assertions . . . that his trial counsel failed to investigate” and that

“[b]ecause [he] has not provided any facts to support his assertions that his counsel failed

to investigate his case, he is not entitled to postconviction relief”).

        Appellant argues that his counsel provided ineffective assistance by failing to

retain an expert to enhance the quality of the recording, which was impeded by dogs


                                               5
barking and smoke detectors beeping. But appellant provides no evidence as to what an

expert could have achieved by way of improving the recording, and, more significantly,

no evidence of what an enhanced recording would have contributed to appellant’s

defense.

       Appellant argues that “[t]he theory of the defense was that [he] did not threaten

[P.S.] or [P.M.] and that they were not in fear.” But there was no evidence, other than

appellant’s own testimony, to support this defense. Both P.S. and P.M. testified that their

fear intensified when appellant lowered the gun he had pointed at the ceiling. P.S. said:

              [Appellant] started laughing. And then that’s when he
              lowered the gun and said, “This is your last chance. Check
              the smoke alarms or get the fuck out of my house.” And at
              that time, when I looked at him when he said that, I could tell
              in his eyes he wasn’t kidding. So I turned around and walked
              away. . . . [P.M.] was basically behind me but off to the left a
              little bit, and she was white as a sheet. . . . I didn’t want to get
              shot in the back.

P.S. was then asked about the gun.

              Q.     And when you say he lowered the gun, how did he
                     lower it?
              A.     Just went down like this (indicating) and pointed it at
                     us.
              ....
              Q.     Straight out in front of him?
              A.     Yep.
              Q.     Where was it pointed?
              A.     Right at me.
              ....
              Q.     And when the rifle was pointed at you, how were you
                     feeling then?
              A.     Scared.

On redirect examination, P.S. was questioned again.



                                               6
              Q.     Did you have concerns . . . about whether he would
                     use that gun or not?
              A.     Yes.
              Q.     What were your concerns?
              A.     That he was going to shoot us.

       P.M. also was asked how she felt when she saw the gun lowered; she answered, “I

believe stunned . . . .” Asked if she had “concerns about whether or not [appellant]

would actually use that gun,” she answered, “Yes.”         She answered “Yes” again on

redirect examination, when she was asked, “Did you have concerns of [appellant]

potentially using that gun?” The audio recording would not show whether appellant did

lower his gun and point it at P.S. and P.M., which is the only significant conflict between

their account of the incident and appellant’s account. Moreover, both P.S. and P.M.

testified that appellant did not talk about the gun or say anything to them other than

repeatedly telling them to check the smoke detectors or leave, and appellant agrees with

this. An audio recording could only confirm what is already undisputed.

       On cross-examination, appellant was questioned about his rifle.

              Q.      [I]t was there to give a visual effect, correct?
              A.      Yes.
              ....
              Q.      Well, [P.S.] and [P.M.] came into your house, and you
              brought the rifle up, put it on the end of your chair, pointed it
              towards the ceiling for visual effect, right?
              A.      They weren’t supposed to be there, so why were they
              there?
              Q.      . . . Were you using [the rifle] at the time for visual
              effect?
              A.      Yes.
              Q.      And that visual effect is that you’ll use the gun? Why
              else –
              A.      If—if—Yes. Yes. If – yes.



                                             7
Q.      And so you’re using that [gun] to intimidate them,
correct?
A.      No.
Q.      Isn’t it true you told [the officer in your statement after
you were arrested] that it was for intimidation?
A.      The gun, yeah.
....
Q.      And so the purpose then of bringing a gun from the
floor up to the ground to get your point across is to
intimidate?
A.      Oh, yes. Yes.
Q.      It’s to intimidate, right?
A.      No. To get attention. [P.S.] was going for the stairwell,
and I said, “No, you’re going to check [the smoke detectors]
there or leave.” And at the same time I was doing that, if you
hear it on the tape, you can hear the springs of the recliner
creak as I reach over, grab [the gun], pick it up. When he
turned back around, he didn’t move again.
Q.      Because there was a gun there, right?
A.      I don’t – I don’t know. I guess, yes.
Q.      So you’re using that for visual effect to get what you
wanted them to do?
A.      Yes. Yes.
....
Q.      And you had that blank there to scare them, correct?
A.      To scare intruders, yes.
Q.      And [P.S.] and [P.M.]?
A.      Yeah, if they would have gone upstairs, gone through
my house.
....
Q.      On April 10, 2013, when [P.S.] and [P.M.] were in
your home, your first shot that day was going to be a warning
shot, correct?
A.      Yes.
Q.      And that was with the blank, correct?
A.      Yes.
Q.      And that was to intimidate them or make them think it
was going to shoot them, correct?
A.      Them, yeah. . . .
Q.      So you’re holding the rifle, having it pointed straight
up sitting next to you, in your head, you’re thinking you can
use this to intimidate them; is that fair to say?
A.      Yes . . . .


                                8
             Q.      So if there’s a rifle in a room, that helps get people’s
             attention, correct?
             A.      Yeah.
             Q.      So that’s why you were holding it, correct?
             ....
             A.      Yes.
             Q.      And it’s to get people’s attention because using a rifle
             could hurt people, correct?
             A.      Correct.
             ....
             Q.      . . . [O]n April 10 of 2013, you needed to show them
             that you were serious, right?
             A.      Yes, because they went for the stairwell – or [P.S.]
             went towards the stairwell.
             Q.      And serious enough that you wanted them to know that
             you would use the rifle?
             A.      Yeah. I spoke at the same time that I picked it up. I
             don’t know if it was the gun or my words that made [P.S.]
             turn around and finish doing the smoke detectors and then tell
             me that he wasn’t afraid of me.
             Q.      . . . [Y]ou wanted him to be afraid? You wanted him
             to stop what he was doing?
             A.      No. I wanted him to listen. You don’t have to be
             afraid to listen.
             Q.      But to get someone to listen, you have to use a rifle?
             A.      Yeah. It was sitting there in the open, and he went for
             the stairwell.
             Q.      Okay.
             A.      So then I picked it up to show him that it’s not just
             there as a lamp shade.
             Q.      It’s there to be used?
             A.      Yeah.

Thus, appellant’s own testimony shows that he intended to shoot his rifle if P.S. and P.M.

did not comply with his wishes and that the rifle was present to intimidate them into

complying with his wishes.

      Appellant relies on State v. Nicks, 831 N.W.2d 493, 508, 510 (Minn. 2013)

(defendant whose counsel failed to follow through with obtaining the murder victim’s



                                            9
cellphone records when the defense was built around a phone call had “made sufficient

allegations that counsel’s assistance fell below an objective standard of reasonableness to

warrant an evidentiary hearing” and that this failure “may have prejudiced [defendant] at

trial”). But Nicks is distinguishable. In that case, whether a phone call between the

defendant and the victim on the evening of the murder had occurred was central to the

defense and would have been resolved if the victim’s cellphone records were produced.

Id. at 506-08. Here, the audio recording would do nothing to resolve whether appellant

pointed his rifle at P.S. and P.M. and would add nothing to the undisputed evidence as to

what appellant told them while they were in his house.1

       Appellant was not deprived of his right to effective assistance of counsel.

2.     Sentencing

       Appellant’s motion for a downward dispositional departure was denied, and he

was sentenced to the mandatory minimum of 36 months in prison. See Minn. Stat.

§ 609.11, subds. 5(a), 9 (2012) (imposing sentence of “commit[ment] to the

commissioner of corrections for not less than three years” on anyone who, while

committing assault, “had in possession or used, whether by brandishing, displaying,

threatening with, or otherwise employing, a firearm”). Only in a “rare” case will an

1
  Appellant’s reliance on Dereje v. State, 812 N.W.2d 205, 212 (Minn. App. 2012)
(concluding that “because trial counsel entirely failed to subject the prosecution’s case to
meaningful adversarial testing, appellant was deprived of his right to effective assistance
of counsel”), is misplaced. Dereje was reversed. See Dereje v. State, 837 N.W.2d 714,
717 (Minn. 2013) (“Ineffective-assistance-of-counsel claims fail when counsel
demonstrates reasonable strategic calculation throughout the representation and secures a
favorable outcome for his client in the face of multiple felony charges and considerable
evidence of guilt.”).


                                            10
appellate court reverse the imposition of a presumptive sentence. State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981). Review of a district court’s decision whether to depart from

the guideline sentence when there is a proper basis for departure is “extremely

deferential.” Dillon v. State, 781 N.W.2d 588, 595-96 (Minn. App. 2010), review denied

(Minn. July 20, 2010). However, “a [district] court has no discretion to depart from the

sentencing guidelines unless aggravating or mitigating factors are present.” State v.

Spain, 590 N.W.2d 85, 88 (Minn. 1999). Factors to consider in a dispositional departure

include a defendant’s age, prior record, remorse, cooperation, attitude while in court, and

support of friends and/or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

       Appellant argues that “[t]he [district c]ourt’s failure to discuss the low risk to

reoffend and carefully consider all of the Trog factors constituted an abuse of discretion.”

But there is no requirement that the district court discuss all the Trog factors before

imposing a presumptive sentence. State v. Pegel, 795 N.W.2d 251, 254 (Minn. App.

2011); see also State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (stating that, if

district court considers reasons to depart but elects to impose the presumptive sentence,

no explanation for denying departure is required).

       In any event, the district court’s statement at the sentencing hearing demonstrates

its consideration of some of the Trog factors and gives its reasons for denying departure:

              You do have some positives here. I’m not going to deny
              that . . . . You’ve got a fairly minimal record. You’re fairly
              older in age. You do have support of friends and family, no
              doubt about it. But you’re here because of April 10, 2013,
              one snapshot in time, [and] what you did [then] was a very
              serious charge under Minnesota law.



                                            11
                     You just can’t point a weapon at others, assault them,
              cause fear. And it’s obvious you caused fear in the
              individuals that were involved in this case. And quite
              frankly, the reason seems kind of petty. They were [t]here to
              just do an inspection in your apartment. They gave you
              notice. They knocked on the door. You didn’t answer. They
              kind of opened the door, called again. You’re there with a
              gun. You assault them with a gun. We know you had altered
              a bullet. But legally it doesn’t matter; it could be a disabled
              gun. It caused fear in the victim here. And there are
              mandatory minimums that flow from this.

       Appellant also argues that the district court failed to consider that he is at “low risk

to reoffend” and amenable to probation, based on information in the presentence

investigation (PSI) that his Level of Service/Case Management Inventory (LSCMI) score

was 13. But the PSI recommended that appellant “be committed to the Commissioner of

Corrections for a period of 36 months.” Moreover, at the sentencing hearing, appellant’s

attorney said she “believe[d] . . . that score would be on the high end of low or on the low

end of moderate, a moderate score.” The district court did address appellant’s argument

that he is amenable to probation:

              But I’m not satisfied that there is a specific probationary
              program that you could fit into in this situation. You
              obviously don’t want to suffer the consequences of your own
              behavior, but this is a mandatory minimum sentence.
                      I don’t really find substantial and compelling
              circumstances to put you on some behavioral program in a
              probationary setting to keep the community safe. You know,
              you couldn’t get along with your own landlords, you know, in
              a fairly minimal relationship during a smoke detector alarm
              check. I’m not real confident you’re going to do real well in
              a probationary setting either. If you’re a tenant in an
              apartment and they have to do these minimal checks for the
              safety and security of everybody involved, including yourself,
              and you think you have . . . to have a gun involved, point the
              gun, threaten people.


                                              12
                   . . . And to the extent you make decisions that are very,
             very poor that can cause a lot of fear in individuals, I’m not
             confident you won’t do that into the future either.

      This court “may not interfere with the sentencing court’s exercise of discretion, as

long as the record shows the sentencing court carefully evaluated all the testimony and

information presented before making a determination.” Van Ruler, 378 N.W.2d at 80-81.

The sentencing court here clearly evaluated the testimony and information presented

before imposing the presumptive sentence on appellant. There is no basis to reverse that

sentence.

      Affirmed.




                                           13
