                        This opinion will be unpublished and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
                                   A13-0508

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                 Brian J. Machacek,
                                     Appellant.

                               Filed June 29, 2015
                                    Affirmed
                                Schellhas, Judge
                        Concurring specially, Minge, Judge

                             Steele County District Court
                               File No. 74-CR-10-405

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

Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Minge,

Judge.*




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                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges his convictions of first-degree assault and the denial of

postconviction relief. We affirm.

                                       FACTS

      In the early morning hours of February 19, 2010, police officers learned that

appellant Brian J. Machacek was reportedly suicidal and had left a Medford-area

residence in his white sport utility vehicle. Steele County Deputy Sheriff Chad Forystek

and Dodge County Patrol Deputy David Crable were among the officers who drove

around the Medford area to look for Machacek’s SUV.

      Officers located and pursued the SUV but they were unable to stop it and

periodically lost contact with it, as it made frequent and sudden changes in direction.

During the pursuit, Machacek appeared to be in control of the SUV, which was traveling

at speeds of up to 90 miles per hour on gravel roads without weaving, swerving, or

“wander[ing]” out of its lane of travel. The roads in the Medford area were dry, and

winds were calm.

      Near the end of the pursuit, Machacek drove the SUV past Deputy Forystek’s

squad car and then turned the SUV around—although no roadblock or other physical

obstruction had blocked its path—and approached the squad car head-on. Deputy

Forystek thought that the SUV was going to hit his squad car head-on, so he drove into a

snowy ditch to avoid a collision. Shortly thereafter, Deputy Crable, who had exited his

squad car to deploy stop sticks, saw the SUV approaching his location at a high rate of


                                           2
speed. Machacek made a sharp right turn, placing the SUV directly in Deputy Crable’s

path, and accelerated toward Deputy Crable. As Deputy Crable tried to avoid being hit by

the SUV, he felt a very strong blow to his lower back that was intense enough to knock

him down and push him forward. He fell to the ground and heard a “large impact.” The

SUV crashed into Deputy Crable’s squad car and flipped over.

       Before Machacek’s extraction from the SUV, he yelled and cursed at officers and

denied that he had “come at” Deputy Forystek. During a subsequent police interview,

Machacek denied having any memory of the pursuit or the crash. No mechanical or other

defect was found in the SUV that might have contributed to the crash. Deputy Crable

suffered soft tissue damage to his lower back but has no ongoing complications from his

injuries.

       Respondent State of Minnesota charged Machacek with two counts of first-degree

assault (deadly force against peace officer), under Minn. Stat. § 609.221, subd. 2(a)

(2008). Machacek noticed alternative defenses of not guilty and not guilty by reason of

mental illness, triggering a bifurcated, two-phase jury trial at which the district court

ruled inadmissible for impeachment purposes Machacek’s 1997 conviction of third-

degree assault. Machacek presented a phase-one defense that he had lacked intent to

commit first-degree assault, but the jury found that the state had proved the elements of

both counts of first-degree assault beyond a reasonable doubt. Machacek’s phase-two

defense theory was that his bipolar disorder had caused a psychotic break that relieved

him of criminal liability. The jury rejected Machacek’s mental-illness defense and found




                                           3
him guilty of both counts of first-degree assault. The district court sentenced Machacek to

concurrent sentences of 120 months’ imprisonment for each count.

       On Machacek’s motion, this court stayed Machacek’s subsequent direct appeal,

and Machacek petitioned for postconviction relief on grounds of ineffective assistance of

counsel. The postconviction court conducted an evidentiary hearing and denied relief.

This court dissolved the stay, and this combined appeal follows.

                                      DECISION

Ineffective assistance of counsel

       On review of the denial of postconviction relief on a claim of ineffective

assistance of counsel, appellate courts review the postconviction court’s factual findings

for clear error and its legal conclusions de novo. State v. Nicks, 831 N.W.2d 493, 503

(Minn. 2013). “Ultimately, [appellate courts] review a denial of a petition for

postconviction relief . . . for an abuse of discretion. A postconviction court abuses its

discretion when its decision is based on an erroneous view of the law or is against logic

and the facts in the record.” Id. (quotation and citation omitted).

       “To prevail on a claim that his counsel was ineffective,” a defendant must prove

that counsel’s “performance fell below an objective standard of reasonableness,” which is

“representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” State v.

Vang, 847 N.W.2d 248, 266–67 (Minn. 2014) (quotations omitted). The defendant also

must prove prejudice—i.e., “a reasonable probability . . . that, but for the attorney’s




                                              4
unprofessional error, the outcome would have been different.” Id. “[Appellate courts]

need not analyze both prongs if either one is determinative.” Id. at 266.

       Machacek argues that defense counsel was ineffective for (1) failing to use a

peremptory strike against a biased juror, (2) failing to adequately investigate and prepare

before trial, and (3) asking Machacek a damaging question on direct examination. Each

of these purported deficiencies arguably is insulated from appellate scrutiny as a matter

of trial strategy. See State v. Hokanson, 821 N.W.2d 340, 358 (Minn. 2012) (stating that

“[appellate] courts do[] not review matters of trial strategy or the particular tactics used

by counsel”); State v. Nissalke, 801 N.W.2d 82, 111 (Minn. 2011) (stating that “the depth

of . . . counsel’s investigation” and counsel’s “decisions to present certain evidence and

call certain witnesses at trial are tactical decisions properly left to the discretion of trial

counsel” (quotation omitted)); Jama v. State, 756 N.W.2d 107, 113 (Minn. App. 2008)

(stating that “Minnesota courts have recognized that attorneys must make tactical

decisions during jury selection, and a claim of ineffective assistance of counsel cannot be

established by merely complaining about counsel’s failure to challenge certain jurors”

(quotations omitted)). But see Nicks, 831 N.W.2d at 507 (noting that “almost any failing

by a trial counsel contains components that could be articulated as a decision or a choice”

and suggesting that trial strategy should be treated “as a factor that [appellate courts] use

to assess ineffective assistance claims,” not as “an impregnable barrier to [such] claims”).

In this case, none of the purported deficiencies satisfies the two-prong test for ineffective

assistance of counsel.




                                              5
       Decision to not strike juror peremptorily

       During voir dire, juror J.J. disclosed prior knowledge of Machacek, describing a

casual friendship between her estranged husband and Machacek that had ended about 20

years earlier due to a disagreement “back in the day and over ice fishing.” J.J. agreed that

it would be “probably just a little awkward” to serve on the jury. She also had the

following exchange with defense counsel:

              J.J.: . . . I just think that it might be—I think there is more
              history [surrounding the disagreement] than I am aware of,
              and I don’t know if he would feel comfortable with me being
              on the jury.
              DEFENSE COUNSEL: Let me ask you that way: If you were
              in . . . Machacek’s place, would you want you to be sitting in
              the jury?
              J.J.: Probably—probably not.

       Machacek argues that “no objectively reasonable rationale or strategy existed for

leaving [J.J.] on the jury panel” in light of her “obvious[] bias[]” against Machacek. But

“a juror’s answer must be viewed in context to determine whether it demonstrated actual

bias.” State v. Munt, 831 N.W.2d 569, 578 (Minn. 2013). J.J. never expressed any doubt

that she would be a fair and impartial juror, instead unequivocally stating that she “would

be fair,” that she had “nothing against [Machacek],” and that she knew that she “could be

fair.” Viewed in context, J.J.’s acknowledgment that her jury service might raise mildly

negative feelings in her or Machacek was not an expression of actual bias. Cf. State v.

Fraga, ___ N.W.2d ___, ___, 2015 WL 1810487, at *9 (Minn. Apr. 22, 2015)

(concluding that juror expressed actual bias where he stated that he knew about case, that

“it would be hard” to be fair and impartial, that he had discussed “details” of case with



                                             6
his family and friends, and that case brought word “sickening” to mind) (quotation marks

omitted).

       Moreover, J.J. disclosed that a close family member had a history of depression,

anxiety, and suicidal ideation and explained that her experiences with this family member

would help her to understand evidence regarding mental illness. Given Machacek’s

assertion of a mental-illness defense, an attorney exercising the customary skills and

diligence that a reasonably competent attorney would perform under similar

circumstances may have weighed J.J.’s intimate connection with mental illness more

heavily than her glancing acquaintance with Machacek. See Dunn v. State, 499 N.W.2d

37, 38 (Minn. 1993) (rejecting ineffective-assistance claim based on counsel’s failure to

strike juror whose wife’s uncle was state’s witness, reasoning that “[c]ounsel questioned

[juror] about his relationship to [witness] and, satisfied that no real risk of bias existed,

reasonably decided not to exercise a peremptory challenge against him”).

       We acknowledge that defense counsel testified at the postconviction hearing that

his decision not to strike J.J. was “a pretty grievous error.” But because counsel’s

performance is measured against an objective standard of reasonableness, see Vang, 847

N.W.2d at 266, we are not persuaded by counsel’s subjective opinion that his failure to

strike J.J. was unreasonable, cf. State v. Prtine, 799 N.W.2d 594, 599–600 (Minn. 2011)

(rejecting argument that “[counsel’s concession] was not an understandable trial

strategy,” regardless of whether “the concession was based on trial counsel’s fundamental

misunderstanding of the law,” because “the issue of whether [the concession] was an

understandable trial strategy . . . is based on objective notions of reasonableness”).


                                             7
Counsel’s decision not to use a peremptory strike against J.J. did not fall below the

objective standard of reasonableness and thus was not ineffective assistance of counsel.

       Pretrial investigation and preparation

       Machacek also argues that defense counsel failed to undertake adequate pretrial

preparation and investigation, pointing to, among other things, counsel’s “overwhelming

caseload,” personal distractions, and professional procrastination; failure to investigate

potential expert witnesses, including an accident reconstructionist, an expert on blackouts

or memory lapses, an expert in retrograde extrapolation, and a bipolar-disorder expert;

and failure to consult with a more experienced attorney. An attorney’s failure to

thoroughly investigate or prepare to admit testimonial or other evidence may “fall[]

below an objective standard of professional conduct that defendants are entitled to under

the United States Constitution.” See Nicks, 831 N.W.2d at 508 (reversing summary denial

of postconviction petition where defendant alleged that trial counsel failed to obtain

cellphone records upon which defense theory hinged). But “limited trial preparation time

does not alone constitute grounds for establishing ineffective assistance of counsel.

Instead, the proper focus . . . should be on the adversarial process rather than the

defendant’s assessment of his lawyer’s preparation.” State v. Caldwell, 803 N.W.2d 373,

387 (Minn. 2011) (quotation omitted).

       Prior to trial in this case, defense counsel spoke with Machacek, investigated and

tried to locate potential witnesses, obtained Machacek’s medical records, spoke with the

mental-health professional who had diagnosed Machacek with bipolar disorder,

researched bipolar disorder and psychotic breaks, requested and obtained an independent


                                            8
Rule 20 evaluation, noticed and developed a mental-illness defense, moved to exclude

prior-conviction evidence, made at least nine other pretrial motions, utilized an

investigator, subpoenaed witnesses, prepared a 64-question jury questionnaire, and asked

questions during voir dire. Counsel’s basic readiness for trial was exhibited when he

cross-examined every state’s witness, called seven defense witnesses, made opening and

closing arguments, and raised numerous objections at trial. In light of the “strong

presumption that counsel’s performance was reasonable,” Andersen v. State, 830 N.W.2d

1, 10 (Minn. 2013), this record does not show that the adversarial process was

undermined by any lack of pretrial investigation and preparation, see State v. Rhodes, 657

N.W.2d 823, 843–45 (Minn. 2003) (reasoning that “[l]egal representation is an art, not a

science,” and concluding that “counsel’s conduct falls squarely within the wide range of

reasonable professional assistance,” notwithstanding counsel’s failure to utilize

potentially advantageous methods of investigation and preparation).1

      Even if an attorney exercising the customary skills and diligence that a reasonably

competent attorney would perform under similar circumstances would have engaged in

more or different investigation and preparation before Machacek’s trial, we agree with

the postconviction court that Machacek failed to establish a reasonable probability that

the outcome of his trial would have been different had defense counsel done so.

Machacek makes vague and conclusory assertions that, among other things, unnamed

expert witnesses “would have been helpful” and that his “chances of success at trial were

1
  We reject as immaterial defense counsel’s subjective opinion that his investigation and
preparation did not meet the objective standard of reasonableness. See Vang, 847 N.W.2d
at 266.

                                            9
seriously impacted” by counsel’s lack of preparation. But, as aptly noted by the

postconviction court, Machacek offered neither testimony nor affidavits setting out other

possible witnesses’ testimony. The record likewise contains no hint of what counsel

might have learned in consultation with another attorney or from more time spent with

Machacek’s file. Because Machacek did not prove that he was prejudiced by counsel’s

purportedly deficient investigation or preparation, any such deficiency was not

ineffective assistance.

       Question on direct

       Machacek argues that the following portion of defense counsel’s phase-one direct

examination was deficient performance:

              DEFENSE COUNSEL: As far as you knew, [Machacek],
              when you were having these suicidal thoughts, had you ever
              contemplated taking anybody with you?
              MACHACEK: None. That’s the last thing I had wanted to do
              is hurt anybody else.

According to Machacek, “[a] competent trial attorney would have avoided asking [him] a

question about intent to cause harm because it could ‘open the door’ to” evidence of

Machacek’s 1997 conviction of third-degree assault, which the district court had ruled

was inadmissible for impeachment purposes. But, as discussed below, we conclude that

the district court erred by admitting evidence of Machacek’s 1997 assault conviction as a

result of Machacek’s answer to the above question. We reject Machacek’s argument that

an attorney exercising the customary skills and diligence that a reasonably competent

attorney would perform under similar circumstances should have expected the question to

lead to the admission of prior-conviction evidence. We agree with the postconviction


                                           10
court that, “[w]hile counsel’s question could certainly have been more carefully phrased

. . . , competent, effective representation is not the same as perfection.” We conclude that

counsel’s question did not fall below the objective standard of reasonableness and that

the question therefore was not ineffective assistance of counsel.

Assault jury instructions

       Appellate courts review unobjected-to jury instructions for plain error. Vang, 847

N.W.2d at 261; see State v. Kelley, 855 N.W.2d 269, 273 (Minn. 2014) (reviewing jury

instruction for plain error where defendant did not object to instruction on specific basis

asserted on appeal); see also Minn. R. Crim. P. 31.02 (providing that “[p]lain error

affecting a substantial right can be considered . . . even if it was not brought to the trial

court’s attention”). “Under the plain-error doctrine, the appellant must show that there

was (1) an error; (2) that is plain; and (3) the error must affect substantial rights.” Kelley,

855 N.W.2d at 273–74. “An error is plain if it is clear or obvious; this means an error that

violates or contradicts case law, a rule, or an applicable standard of conduct.” State v.

Mosley, 853 N.W.2d 789, 801 (Minn. 2014), cert. denied, 135 S. Ct. 1185 (2015).

Conversely, an error that violates or contradicts law that is unsettled at the time of

appellate review is not plain. Kelley, 855 N.W.2d at 277, 280 n.9.

       In this case, the district court gave the following instructions on the first count of

first-degree assault (deadly force against peace officer):

                     The statutes of Minnesota provide that whoever
              assaults a peace officer by using or attempting to use deadly
              force against the peace officer while the officer is engaged in
              the performance of a duty imposed by law, policy, or rule is
              guilty of a crime.


                                              11
                    The elements of assault on a peace officer are: First,
             the defendant assaulted Chad Forystek. An assault is the
             intentional infliction of bodily harm upon another, an
             intentional attempt to inflict bodily harm upon another, and/or
             an act done with intent to cause fear of immediate bodily
             harm or death in another. Second, Chad Forystek was a peace
             officer at the time of the assault and was engaged in the
             performance of a duty imposed by law, policy, or rule. Third,
             the defendant used or attempted to use deadly force against
             Chad Forystek.

                    Deadly force means force the actor uses with the
             purpose of causing or the actor should reasonably know
             creates a substantial risk of causing death or great bodily
             harm. Great bodily harm means bodily harm that creates a
             high probability of death, causes serious permanent
             disfigurement, or causes a permanent or protracted loss or
             impairment of the function of any part of the body, or other
             serious bodily harm. Fourth, the defendant’s act took place on
             or about February 19th, 2010, in Steele County.

The district court gave functionally identical instructions on the second count of first-

degree assault (deadly force against peace officer), substituting “David Crable” for “Chad

Forystek.” Machacek argues that these instructions are plainly erroneous because they

“failed to explain that assault-harm, assault-fear, and attempted assault are different

crimes with different mens rea requirements” and “gave the jury the option of basing a

guilty verdict on differing forms of assault, which violated [Machacek]’s right to a

unanimous verdict.”2




2
  Machacek also argues that the instructions are plainly erroneous because “[a]ttempted
assault-harm is not a valid offense.” We summarily reject this argument in light of the
statute providing that an “attempt to inflict bodily harm upon another” is an assault. See
Minn. Stat. § 609.02, subd. 10(2) (2008).

                                           12
       “Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton, 725

N.W.2d 717, 730 (Minn. 2007) (citing Minn. R. Crim. P. 26.01, subd. 1(5)). “To achieve

that end, a jury must unanimously find that the government has proved each element of

the offense. But the jury does not have to unanimously agree on the facts underlying an

element of a crime in all cases.” Id. at 730–31 (quotation and citation omitted). In other

words, a jury need not unanimously agree on one of several “alternatives to satisfying a

single element” of a crime as long as the jury unanimously agrees that the element is

satisfied. See id. at 730–31 & n.8 (rejecting defendant’s argument that “a jury must

unanimously find [that a person charged with felony murder while committing

kidnapping] had one of the four listed purposes” for the kidnapping, reasoning that “the

enumerated purposes a[re] alternatives to satisfying a single element of kidnapping”).

The central question here is whether assault-harm and assault-fear are two distinct

offenses—each with a separate intent element—or whether assault-harm and assault-fear

are but two ways of satisfying a single element—i.e., an assaultive act—common to all

assault crimes.

       We addressed a related question in State v. Dalbec, 789 N.W.2d 508 (Minn. App.

2010), review denied (Minn. Dec. 22, 2010). In that case, the defendant was tried on one

count of gross misdemeanor domestic assault arising from his multiple acts of violence

against a single victim in a single location over the course of about 24 hours. Dalbec, 789

N.W.2d at 509–10. The district court instructed the jury that it could find the defendant

guilty if it unanimously agreed that “[he] committed an act with the intent of causing fear

of immediate bodily harm or intended or attempted to inflict bodily harm on the victim


                                            13
. . . rather than instructing the jury that it must agree on which of several acts constituted

this element.” Id. at 511. We rejected the defendant’s argument that these jury

instructions were plainly erroneous, stating that “the act of assault is the element of the

crime of domestic assault, and an assault can be committed in any of three ways”—“by

intentionally causing fear of immediate bodily harm or death or by intentionally inflicting

or attempting to inflict bodily harm.” Id. at 512–13. We reasoned that “[t]he jury could

agree . . . that [the defendant] intended to assault [the victim], but need not agree on

whether the assault was accomplished by causing fear or inflicting or attempting to inflict

bodily harm,” and “[w]e conclude[d] that the district court did not plainly err by failing to

instruct the jury that it must unanimously determine which action, among several proved,

supported the element of assault in a charge of domestic assault.” Id. at 513.

       But subsequently in State v. Fleck, the supreme court held that the intentional

infliction of bodily harm upon another (assault-harm) is a general-intent crime, while an

act done with intent to cause fear in another of immediate bodily harm or death (assault-

fear) is a specific-intent crime. 810 N.W.2d 303, 312 (Minn. 2012). We recognize that

Fleck dealt with a defendant’s entitlement to a voluntary-intoxication instruction; it did

not address assault instructions. See id. at 305–07. And the United States Supreme Court

has concluded that a state constitutionally may “define different . . . states of mind . . . as

merely alternative means of committing a single offense, thereby permitting a

defendant’s conviction without jury agreement as to which . . . state actually occurred.”

Schad v. Arizona, 501 U.S. 624, 632, 111 S. Ct. 2491, 2497 (1991). Yet Fleck contains

language that may be read to suggest that assault-harm and assault-fear are distinct


                                              14
offenses. See Fleck, 810 N.W.2d at 306 (referring to, e.g., “the offenses of assault-harm

and assault-fear” and to “the assault-harm offense and the assault-fear offense” (emphasis

added)). We have cited Dalbec with approval in post-Fleck unpublished opinions

rejecting jury-unanimity arguments in assault cases; two of the cases include a dissenting

opinion questioning Dalbec’s continued viability in light of Fleck, and the supreme court

has granted and stayed further review of these two cases pending its decision in yet

another case involving jury unanimity, State v. Wenthe, 845 N.W.2d 222 (Minn. App.

2014), review granted (Minn. June 25, 2014). See State v. Moallin, No. A14-0329, 2014

WL 7237037, at *2, *4–6 (Minn. App. Dec. 22, 2014), review granted and stayed (Minn.

Feb. 25, 2015); State v. Evans, No. A13-2256, 2014 WL 7011130, at *3, *6 (Minn. App.

Dec. 15, 2014), review granted and stayed (Minn. Feb. 25, 2015). Against this backdrop,

we conclude that any error in the district court’s assault instructions is not plain.

Admission of prior-conviction evidence

       Appellate courts review a district court’s admission of evidence regarding a

defendant’s prior conviction for abuse of discretion. State v. Williams, 771 N.W.2d 514,

518 (Minn. 2009). “Under an abuse-of-discretion standard, [appellate courts] may reverse

the district court when the district court’s ruling is based on an erroneous view of the law

or is against logic and the facts in the record.” State v. Bustos, 861 N.W.2d 655, 666,

(Minn. 2015) (quotation omitted).

       Evidence of a defendant’s prior conviction “is not admissible to prove the

character of [the defendant] in order to show action in conformity therewith,” see Minn.

R. Evid. 404(b), but such evidence may be admissible under other circumstances. For


                                              15
example, evidence of a defendant’s prior conviction may be admissible for non-character

purposes such as proving the defendant’s “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” See id.; see also State v. Spreigl,

272 Minn. 488, 491–94, 139 N.W.2d 167, 169–172 (1965). In addition, evidence of a

defendant’s prior conviction may be admissible for the purpose of impeaching the

credibility of his testimony. See Minn. R. Evid. 609(a); see also State v. Jones, 271

N.W.2d 534, 537–38 (1978).

       Here, the state made no attempt to introduce evidence of Machacek’s 1997

conviction of third-degree assault as Spreigl evidence admissible under rule 404(b). And

in response to Machacek’s pretrial motion, the district court applied the Jones factors and

ruled that evidence of the 1997 assault conviction was not admissible to impeach

Machacek’s credibility under rule 609(a). But defense counsel asked Machacek on direct

examination: “[W]hen you were having these suicidal thoughts, had you ever

contemplated taking anybody with you?” Machacek answered: “None. That’s the last

thing I had wanted to do is hurt anybody else.” The prosecutor argued that Machacek’s

answer was “character evidence” that Machacek had “present[ed] through himself,”

opening the door to cross-examination about his prior conviction to “rebut[] his character

evidence.” The district court agreed, reasoning that Machacek’s answer was a general

statement of character that implicated “the essential element of the defense” that he “did

not intend to hurt anybody.” The court concluded that reference to the 1997 assault

conviction was admissible in cross-examination to rebut Machacek’s character evidence




                                            16
under rules 404(a)(1) and 405. The prosecutor accordingly elicited testimony from

Machacek regarding his 1997 assault conviction.

       Had Machacek testified that he is a peaceful or nonviolent man, the prosecutor

properly could have rebutted that testimony using specific instances of conduct—

including the 1997 assault conviction—to show the contrary character trait of a tendency

toward aggression or violence. See State v. Jones, 755 N.W.2d 341, 353 (Minn. App.

2008) (concluding that “it was proper for the state to rebut . . . evidence [of defendant’s

nonthreatening character] with . . . testimony concerning” defendant’s “prior criminal

acts, including an order for protection filed against him and a prior assault conviction”),

aff’d, 772 N.W.2d 496 (Minn. 2009). But Machacek did not testify about his character;

instead, he testified about the particulars of his suicidal ideation “[a] couple days” before

the crash. Because the district court based its evidentiary ruling on character testimony

that does not exist in the record, the court abused its discretion by allowing the admission

of the prior conviction.

       But the erroneous admission of Machacek’s prior conviction was harmless unless

it substantially influenced the verdict. See State v. Campbell, 861 N.W.2d 95, 102 (Minn.

2015); see also Minn. R. Crim. P. 31.01 (providing that “[a]ny error that does not affect

substantial rights must be disregarded”). Relevant to the harmless-error inquiry are

factors such as “whether the trial court provided the jurors a cautionary instruction and

whether the evidence was central to the State’s case.” Campbell, 861 N.W.2d at 102.

“[The supreme court] ha[s] also considered the existence of overwhelming evidence of

guilt.” Id.


                                             17
      In this case, the district court gave the following cautionary instruction prior to the

jury’s phase-one deliberations:

             [Y]ou have heard evidence of the defendant’s prior
             conviction of third-degree assault from 1997. You may only
             consider this evidence in your consideration of the weight to
             be given opinion evidence regarding character for
             peacefulness. The defendant is not being tried for and may
             not be convicted of any offense other than the charged
             offenses. You are not to convict the defendant on the basis of
             the 1997 occurrence.

The jury is presumed to have followed this instruction. See id. at 103. The prosecutor did

not refer to the 1997 assault conviction in his closing argument. Moreover, the evidence

presented to the jury overwhelmingly showed that Machacek committed two counts of

first-degree assault (deadly force against peace officer), including law-enforcement

testimony that Machacek, while driving at speeds of up to 90 miles per hour, appeared to

be in control of the SUV before the crash; that neither the condition of the roads nor the

condition of the SUV contributed to the crash; that the SUV “attempt[ed] to hit” Deputy

Forystek’s squad car head-on; that the SUV “placed itself directly in [Deputy Crable’s]

path” and accelerated towards him; and that Deputy Crable received a strong blow to his

lower back while trying to run away from the SUV. The jury also viewed photographs

and squad-car video recordings that bolstered the officers’ testimony. We conclude that

evidence regarding Machacek’s 1997 assault conviction did not substantially influence

the verdict. The erroneous admission of such evidence therefore was harmless.

      Affirmed.




                                            18
MINGE, Judge (concurring specially)

       I join in affirming.    I add this concurrence to state that defense counsel’s

volunteering that he provided ineffective representation and identifying serious reasons

why his representation was deficient should constitute a prima facie showing of

ineffectiveness.   I note with concern that the public defender’s office was initially

assigned to represent appellant and an attorney was assigned to the case. After almost six

months the public defender’s office sought to withdraw due to insufficient resources to

provide defense services for appellant, that the district court rejected this request and

directed the office to retain outside counsel to reduce its caseload to the extent necessary

to meet its constitutional responsibility. A new attorney then represented appellant for

over seven months, when a third attorney took over appellant’s defense. Nine months

later a fourth attorney was appointed. This attorney handled the trial but later stated that

he should not have allowed a juror to serve, that he should have obtained a continuance to

adequately prepare for trial, that his attention was repeatedly diverted by personal

matters, that he had an overwhelming caseload, that he scrambled to subpoena witnesses,

that he did not secure potential expert witnesses on a variety of subjects including

appellant’s bipolar condition, and that although he had never tried a case similar to

appellant’s, he did not consult with a more experienced attorney.

       However, I concur because respondent state countered the general reasons,

arguing that, in the context of this case, defense counsel’s statement was not a persuasive

showing of ineffective assistance that resulted in appellant’s conviction. Appellant never

produced any expert opinion or other evidence at the postconviction-evidentiary hearing

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further supporting his claim of ineffective representation on these matters. For example,

there was no showing or any professional opinion regarding a best practice in dealing

with a juror who may not have been favorable on the issue of assault but would possibly

be a highly desirable juror on the mental illness defense. Similarly, there was no showing

how an expert opinion on appellant’s specific bipolar condition would establish the

defense of not guilty due to mental illness. Finally, although the Minnesota judicial

system has expressed great concern over the inadequate budget for the public defender

system and some problems with providing adequate representation undoubtedly occurred,

there is no specificity of what happened in this proceeding that establishes that it resulted

in appellant receiving ineffective representation affecting the result.




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