                           This opinion will be unpublished and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
                                      A13-2382

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                 Ronald Matthew Quiceno,
                                        Appellant.

                                  Filed February 9, 2015
                                         Affirmed
                                      Hudson, Judge

                               Becker County District Court
                                 File No. 03-CR-13-195

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

Gretchen D. Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Hudson,

Judge.

                          UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges his convictions of second-degree intentional murder, second-

degree assault, and being a prohibited person in possession of a firearm. He argues that
the district court erred in denying his motion for a lesser-included offense instruction on

the charge of first-degree heat-of-passion manslaughter. In his pro se supplemental brief,

appellant argues that: (1) the district court erred by failing to order a competency hearing;

(2) his trial counsel was ineffective; and (3) the district court erred by failing to sua

sponte dismiss jurors for cause. Because we conclude that there was not a rational basis

for the jury to find appellant guilty of the lesser-included offense and that appellant’s pro

se arguments are without merit, we affirm.

                                          FACTS

       Appellant Ronald Matthew Quiceno was charged with second-degree intentional

murder, second-degree attempted murder, second-degree unintentional felony murder,

second-degree assault, and being a prohibited person in possession of a firearm after he

shot and killed T.B. on the morning of January 26, 2013. That morning and the previous

evening, appellant and his friend, H.M., had attended a party at the residence of B.B.,

who lived in a mobile home located in Detroit Lakes. Several people were at B.B.’s

home, including T.B.     Appellant and T.B. did not know each other well; appellant

testified that he had seen T.B. only on occasion around town.

       Appellant and T.B. began to participate in a “rap battle” in the front room of the

residence. T.B. criticized appellant for reading lyrics from his cell phone, instead of

rapping “free-style,” as T.B. was doing. An argument broke out between T.B. and

appellant; T.B. struck appellant in the face after appellant insulted T.B. and T.B.’s cousin,

who was also present at the party. Appellant testified that T.B.’s blow “wasn’t much of a

punch.” T.B. told appellant to leave; appellant and H.M. left the residence and stood


                                             2
outside near appellant’s vehicle. As appellant left, he told T.B. “You’ll get what’s

coming to you.” T.B. told others that he was upset because appellant had “disrespected”

him and his cousin. As appellant stood outside, he told two other people arriving at the

party, B.G. and K.B., that B.B. needed to keep T.B. “in check.” B.B. located appellant

near his vehicle and told him to go inside and “squash this.” Appellant appeared calm

and collected as he reentered the residence.

         The argument quickly escalated after appellant returned to the trailer.       B.B.

testified that he believed a fight was about to occur between appellant, B.G., and T.B. He

also indicated that several people had to restrain T.B. from attacking appellant. H.M.

attempted to push appellant out the door; he testified that appellant needed to leave for

the situation to improve. H.M. stated that, as he attempted to convince appellant to leave,

appellant kept turning around “to say a few words” to T.B.

         Several witnesses testified that, just before appellant reached the door, he turned

around, pulled out a gun, and fired between six and eight shots, killing T.B. and

wounding B.G. But appellant testified that he acted in self-defense. He stated that, after

he reentered the home and during the course of the subsequent altercation, B.G. jammed

a gun into his stomach and told him to “get the f-ck out.” Appellant testified that he

wrestled the gun away and that he fired several shots at T.B. because he believed that

T.B. was about to attack him. Appellant admitted that he owned the gun used in the

shooting and testified that he was unsure how B.G. came to be in possession of it at the

party.




                                               3
       Appellant fled to his friend’s home, whose roommate testified that appellant

appeared “calm” when he arrived. Appellant removed the empty casings from the gun

used in the shooting; his friend informed police that the casings were thrown in the wood

furnace. Appellant left the gun with his friend, who turned it over to law enforcement.

       Appellant was arrested shortly thereafter. Following trial, the jury found appellant

guilty on all counts except second-degree attempted murder. The district court entered

convictions on the second-degree intentional murder, second-degree assault, and being a

prohibited person in possession of a firearm counts and sentenced appellant to a prison

term of 451 months. This appeal follows.

                                       DECISION

                                               I

       Appellant argues that the district court erred by denying his motion for a lesser-

included-offense instruction on the charge of first-degree heat-of-passion manslaughter.

The state argues that there is not a rational basis for the jury to find appellant guilty of the

lesser offense.

       The district court must provide a lesser-included-offense instruction when the

evidence warrants it. State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005). “Whether an

offense is a lesser-included offense is determined by examining the elements of the

offense rather than the facts of a particular case.” State v. Lory, 559 N.W.2d 425, 428

(Minn. App. 1997), review denied (Minn. Apr. 15, 1997). An instruction is warranted

when: (1) the lesser offense is included in the charged offense; (2) the evidence provides

a rational basis to find the defendant guilty of the lesser-included offense; and (3) the


                                               4
evidence provides a rational basis to find the defendant not guilty of the offense charged.

State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005). Because it is undisputed that first-

degree heat-of-passion manslaughter is a lesser-included offense of both second-degree

intentional and second-degree felony murder, we examine only whether the evidence

provides a rational basis to find appellant guilty of the lesser offense and not guilty of the

charged offense. See State v. Leinweber, 303 Minn. 414, 417, 228 N.W.2d 120, 123

(1975) (considering first-degree manslaughter offense as lesser offense of second-degree

intentional murder); State v. Galvan, 374 N.W.2d 269, 271 (Minn. 1985) (stating that

first-degree manslaughter offense is lesser offense of second-degree felony murder).

       We review the denial of a requested lesser-included-offense instruction for an

abuse of discretion. Dahlin, 695 N.W.2d at 597. A district court abuses its discretion by

failing to give a lesser-included-offense instruction when warranted by the evidence. Id.

In determining whether there is a rational basis to find the defendant guilty of the lesser

offense and not guilty of the charged offense, we consider the record in the light most

favorable to the party requesting the lesser-included instruction. Id. We do not make

credibility determinations or consider what reasonable inferences the jury could draw

from the evidence in making this determination. See State v. Johnson, 719 N.W.2d 619,

624 (Minn. 2006). Instead, we leave those issues for the jury’s consideration. Id.

       We first consider whether the evidence provides a rational basis to find appellant

guilty of heat-of-passion manslaughter. To warrant a lesser-included instruction for this

offense, there must be a rational basis for the jury to find that: (1) the defendant

intentionally committed the killing in the heat of passion and (2) the defendant’s passion


                                              5
was provoked by words or acts of another that would provoke a person of ordinary self-

control under similar circumstances. Minn. Stat. § 609.20(1) (2012). The first element

requires a subjective analysis, which focuses on whether the heat of passion clouded the

defendant’s reason and weakened the defendant’s willpower.            State v. Carney, 649

N.W.2d 455, 461 (Minn. 2002). The second element requires an objective examination.

State v. Buchanan, 431 N.W.2d 542, 549 (Minn. 1988). Evidence that demonstrates that

the defendant was provoked by fear of great bodily harm or death can provide a rational

basis to find the defendant guilty of heat-of-passion manslaughter. State v. Matthews,

301 Minn. 133, 135–36, 221 N.W.2d 563, 565 (1974).

       Here, the district court denied appellant’s motion for a heat-of-passion

manslaughter instruction because “the only provocation that the evidence really shows is

the fact that [T.B.] smacked [appellant] in the jaw.” The district court determined that,

because there “was a lot of intervening time between that assault . . . and the time that

[appellant] went back into the trailer,” there was not a rational basis to find that appellant

acted in the heat of passion when he shot T.B. Appellant argues that the district court’s

decision was an abuse of its discretion. We disagree.

       The evidence, when considered in a light most favorable to appellant,

demonstrates that appellant and T.B. became involved in a verbal altercation that

escalated to a physical confrontation when T.B. struck appellant in the face.             But

appellant did not immediately retaliate; instead, he left the residence and stood outside for

a few minutes. An eyewitness indicated that he calmed down during this intervening

time. Upon reentry and resumption of the argument, B.G. stuck a gun in appellant’s


                                              6
stomach, which appellant wrestled away and used to fire several shots at T.B.1 Though

appellant testified that he was upset and “leery” when he reentered the trailer and that he

was “very frightened” by T.B. and B.G.’s subsequent conduct, there is no indication that

his willpower was weakened or that he experienced the “loss of self-control” normally

associated with heat of passion. State v. Stewart, 624 N.W.2d 585, 591 (Minn. 2001). It

is evident from his testimony that appellant retained control of his actions and that he

understood the nature of his conduct.        No other witness testified that appellant’s

emotional state appeared compromised when he shot T.B.

       In addition, evidence of appellant’s behavior after the shooting is relevant to the

determination of whether there was a rational basis to find that he acted in the heat of

passion. Carney, 649 N.W.2d at 461. Here, witnesses testified that after appellant shot

T.B., he immediately fled from B.B.’s residence, that he appeared calm and composed,

and that he, with the assistance of his friend, attempted to conceal the weapon and shell

casings that he used. Appellant’s cool demeanor, his attempts to hide evidence, and his

quick exit are also circumstances that demonstrate that he considered the consequences of

his conduct; these actions further establish a “rational, calculating, and controlled” state

of mind that is inconsistent with heat-of-passion. Stewart, 624 N.W.2d at 591. See also

State v. Radke, 821 N.W.2d 316, 328 (Minn. 2012) (concluding that defendant’s attempts

to persuade witness not to speak to others demonstrated lack of heat of passion). We


1
  We note that appellant’s testimony is inconsistent with the testimony offered by several
other witnesses. But because his testimony is more favorable to his argument, our
standard of review dictates that we consider it in determining whether a lesser-included
offense instruction was warranted. Dahlin, 695 N.W.2d at 596–97.

                                             7
therefore conclude that there was not a rational basis to find appellant guilty of first-

degree heat-of-passion manslaughter and that the district court did not abuse its discretion

by denying appellant’s motion for a lesser-included-offense instruction.

                                             II

       Appellant also argues, by way of his pro se supplemental brief, that the district

court erred by failing to sua sponte order a competency hearing before trial. A defendant

is incompetent to proceed and may not be tried or sentenced if the defendant lacks the

ability to: (1) “rationally consult with counsel,” or (2) “understand the proceedings or

participate in the defense due to mental illness or deficiency.” Minn. R. Crim. P. 20.01,

subd. 2. The district court must suspend the criminal proceedings upon motion of either

party or by its own initiative if the district court finds there is reason to doubt a

defendant’s competency. Minn. R. Crim. P. 20.01, subds. 3–5. In considering whether

there is reason to doubt a defendant’s competency, the district court is to consider several

factors, including “[e]vidence of the defendant’s irrational behavior, demeanor at trial,

and any prior medical opinion on competence to stand trial.” State v. Camacho, 561

N.W.2d 160, 172 (Minn. 1997).

       Appellant argues that a competency hearing was warranted because he was under

the care of two psychiatrists and that he had been taking several different prescription

medications. But neither appellant nor his trial counsel provided this information to the

district court. And a careful review of the record demonstrates that appellant behaved

rationally at trial and that nothing about his conduct should have informed the district

court that a competency hearing was necessary.          No documentation of appellant’s


                                             8
medical history is in evidence, nor is there any other information or testimony from

appellant’s medical providers that is relevant to his competence.             Under these

circumstances, the district court’s failure to hold a competency hearing was not

erroneous.

                                            III

       Appellant also argues that he was denied effective assistance of trial counsel. A

criminal defendant possesses the constitutional right to effective assistance of counsel,

which we examine under a two-pronged analysis. State v. Bobo, 770 N.W.2d 129, 137

(Minn. 2009). First, the defendant must show that his or her counsel’s representation

“fell below an objective standard of reasonableness.” Fields v. State, 733 N.W.2d 465,

468 (Minn. 2007) (quotation omitted). Second, the defendant must demonstrate that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. (quotation omitted). We review a

claim for ineffective assistance of counsel de novo. Opsahl v. State, 677 N.W.2d 414,

420 (Minn. 2004).       On review, “[t]here is a strong presumption that counsel’s

performance was reasonable.” Boitnott v. State, 631 N.W.2d 362, 370 (Minn. 2001).

       Here, appellant alleges that trial counsel was ineffective because he: (1) failed to

object to the state’s use of both appellant’s marital and birth name; (2) chose not to call

certain witnesses on his behalf; (3) failed to impeach state witnesses; and (4) did not

move to dismiss prospective jurors for cause. Appellant’s allegations center on issues of

trial strategy, which we do not review in a claim for ineffective assistance. Andersen v.




                                             9
State, 830 N.W.2d 1, 13 (Minn. 2013); Bobo, 770 N.W.2d at 138; Dunn v. State, 499

N.W.2d 37, 38 (Minn. 1993). We therefore reject this claim.

                                            IV

       Finally, appellant argues that the district court’s failure to sua sponte dismiss

prospective jurors for cause denied him of his right to a fair trial. Appellant asserts that

the district court should have removed several jurors who indicated that they had heard

about the case from the local media and were familiar with other members of the jury

panel. He also argues that the district court should have dismissed a juror who was

related to one of the state’s witnesses.

       A juror challenge for cause must be initiated by motion. Minn. R. Crim. P. 26.02,

subd. 5(1); State v. Gillespie, 710 N.W.2d 289, 296 (Minn. App. 2006), review denied

(Minn. May 16, 2006). We have previously stated that “[n]either the caselaw nor the

rules of criminal procedure impose on the district court a duty to strike prospective jurors

for cause sua sponte.” Gillespie, 710 N.W.2d at 296. And even if the district court

possessed the duty to dismiss potential jurors sua sponte, we would find no merit in

appellant’s argument that the district court erred by failing to do so here. The test of an

impartial juror is whether he or she “can lay aside [his or her] impression or opinion and

render a verdict based on the evidence presented in court.” State v. Andrews, 282 Minn.

386, 394, 165 N.W.2d 528, 534 (1969) (quotation omitted). The district court is in the

best position to observe and assess the demeanor of a prospective juror to determine

whether the juror should be excused for cause. State v. Alladin, 408 N.W.2d 642, 650

(Minn. App. 1987), review denied (Minn. Aug. 12, 1987).


                                            10
       Here, the district court conducted a thorough examination of the jury panel and

inquired of each juror’s ability to consider the facts objectively and remain impartial at

trial. Each juror informed the district court that he or she was able to maintain an open

mind and consider the evidence fairly. Appellant retained the opportunity to voir dire the

jurors, to challenge them for cause, and to exercise peremptory challenges if it was

appropriate. Under these circumstances, the district court’s decision not to dismiss the

jurors did not affect the fairness of appellant’s trial. See, e.g., State v. Graham, 371

N.W.2d 204, 206–07 (Minn. 1985) (upholding district court’s decision not to remove

juror for cause when prospective juror stated that in the past she had believed defendant

to be guilty but currently believed she could presume defendant innocent and fairly try

case). We therefore reject appellant’s claim that the district court erred by failing to sua

sponte dismiss potential jurors for cause.

       Affirmed.




                                             11
