Opinion
No. C8-95-2258.
Filed September 10, 1996.
Appeal from the District Court, Blue Earth County, File No. K695676.
Hubert H. Humphrey, III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, (for Respondent).
Ross E. Arneson, Blue Earth County Attorney, (for Respondent).
John Stuart, State Public Defender, Scott Swanson, Assistant State Public Defender, Suzanne M. Schlafge, Certified Student Attorney, (for Appellant).
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § subd. 3 (1994).
UNPUBLISHED OPINION
Margaret Rose Dudley appeals her judgment of conviction, arguing that (1) she was denied a fair trial because one attorney jointly represented her and her codefendant, and (2) the evidence was not sufficient to allow the jury to conclude that she committed theft by false representation. We affirm.
FACTS
Respondent State of Minnesota charged appellant Margaret Dudley with theft by false representation, alleging that by making false representations in her application for a Section 8 housing subsidy Dudley obtained $7833 that she was not entitled to receive. At the omnibus hearing, Dudley made a record recognizing the possible conflict of interests and agreed to be represented by the same attorney as Bernas Rinsem, her codefendant and mother. The state requested separate trials of Dudley and Rinsem. Dudley's attorney opposed the state's request, and the court ordered a consolidated trial. The jury found Dudley guilty, but acquitted Rinsem of aiding and abetting Dudley.
DECISION
1. Joint Representation
Minnesota courts disapprove of joint representation of criminal defendants because it endangers effective assistance of counsel. State v. Olsen , 258 N.W.2d 898, 905 (Minn. 1977). A defendant, however, can waive the right to individual representation. Id. at 905-06. The supreme court established a procedure in Olsen for a district court to assess the voluntariness of a defendant's waiver when choosing joint representation. Id. at 907-08. The supreme court codified the Olsen procedure by adopting Minn.R.Crim.P. 17.03, subd. 5:
Dual Representation. When two or more defendants are jointly charged or will be tried jointly * * *, and two or more of them are represented by the same counsel, the procedure hereafter outlined shall be followed before plea and trial.
(1) The court shall address each defendant personally on the record, advise the defendant of the potential danger of dual representation, and give the defendant an opportunity to question the court on the nature and consequences of dual representation.
(2) The court shall elicit from each defendant in a narrative statement that the defendant has been advised of the right to effective representation; that the defendant understands the details of defense counsel's possible conflict of interest and the potential perils of such a conflict; that the defendant has discussed the matter with defense counsel, or if the defendant wishes with outside counsel and that the defendant voluntarily waives the Sixth Amendment protections.
When evaluating whether the district court conducted a sufficient inquiry regarding a defendant's waiver of separate representation, the district court's inquiry "cannot be judged based on individual responses." State v. Medibus-Helpmobile , 481 N.W.2d 86, 91 (Minn.App. 1992), review denied (Minn. Mar. 19, 1992).
If the record shows that the district court followed the procedure described in Olsen and rule 17.03, subdivision 5, then on appeal the defendant bears the burden of demonstrating that an improper prejudicial conflict of interest existed. On the other hand, if the trial court fails to advise the defendant concerning the risks, then the government bears the burden on appeal of demonstrating that no improper prejudicial conflict of interest existed.
Mercer v. State , 290 N.W.2d 623, 625 (Minn. 1980).
Dudley argues that the record does not show that the district court followed the procedure mandated by Olsen and rule 17.03, subdivision 5. The record, however, reflects extensive discussion among the court, defense counsel, the prosecutor, and Dudley regarding whether Dudley voluntarily waived her right to separate representation. Defense counsel Calvin Johnson explained the potential dangers of dual representation and elicited responses from Dudley and Rinsem indicating that they understood the potential dangers and that they had discussed them with defense counsel. The court then explained potential conflicts and asked Dudley and Rinsem if they wished to proceed despite the potential for conflict. Dudley and Rinsem both responded affirmatively. The prosecutor then requested that the court ask each defendant individually whether she understood the potential for conflict and that she was waiving her rights to individual representation. The prosecutor asked the court to elicit narrative statements pursuant to Olsen . The court directed that the prosecutor ask the questions of Dudley and Rinsem separately. The prosecutor explained the potential conflict to Dudley and Rinsem individually and asked each again if she understood the conflict and wished to proceed in a combined trial with the same attorney, to which each defendant responded affirmatively. The following exchange then took place between the court and Dudley:
The Court: *Margaret Dudley, tell me whether or not you wish to have Mr. Johnson represent you in these matters understanding that he's also representing your mother.
Defendant Dudley: Yes, I do wish to have Mr. Johnson.
At trial, the court again explained the potential for conflict:
The Court: And you are also being represented by the same attorney. Ms. Dudley, do you agree and understand that when an attorney represents two people it is possible when the facts develop that there may be a conflict between your two positions in this case. Do you understand that and that you are waiving that objection and asking that he represent both of you.
Defendant Dudley: Yes, I understand.
The record contains a sufficient inquiry to satisfy rule 17.03, subdivision 5, and Olsen . The record shows that Dudley "voluntarily and with full knowledge of the consequences decide[d] on dual representation." Olsen , 258 N.W.2d at 907. The inquiries by the court, the defense attorney, and the prosecutor informed Dudley of the dangers of joint representation and elicited narrative responses indicating that Dudley wished to be jointly represented and that she understood the potential conflicts of joint representation. See Medibus-Helpmobile , 481 N.W.2d at 91 (holding that district court's inquiry was sufficient where it "inform[ed] appellants of the dangers of joint representation, and elicited narrative responses to the court's concerns").
Because the record satisfies the substance of rule 17.03, Dudley "bears the burden of demonstrating that an improper prejudicial conflict of interest existed." Mercer , 290 N.W.2d at 625. But seeMedibus-Helpmobile , 481 N.W.2d at 91 ("Because a satisfactory inquiry is shown, we need not inquire into whether a prejudicial conflict of interest existed."). Dudley argues that defense counsel's decision regarding which character witnesses to call at trial demonstrates a prejudicial conflict of interest. The record does not show, however, that defense counsel's decision regarding character witnesses was influenced by a conflict of interest. The record shows, rather, that two of the four character witnesses called at trial testified in favor of Dudley. Further, Dudley has not shown that additional character witnesses were available or that their testimony would have been favorable and noncumulative. Finally, the strong evidence supporting the conviction makes it unlikely that additional character evidence would have changed the result of Dudley's trial. Dudley has not shown, therefore, that defense counsel's decision regarding character witnesses prejudiced her defense.
2. Sufficiency of the Evidence
Dudley argues that the evidence is not sufficient to allow the jury to conclude that she was guilty of theft by false representation. When the sufficiency of the evidence is challenged in a criminal case, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). The court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989). "[A] jury normally is in the best position to evaluate circumstantial evidence, and *their verdict is entitled to due deference." Webb , 440 N.W.2d at 430. On appeal, a reviewing court will sustain a conviction based on circumstantial evidence "when the reasonable inferences from such evidence are consistent only with [the] defendant's guilt and inconsistent with any rational hypothesis except that of guilt." State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988).
A person commits theft if he or she obtains for the actor or another the possession, custody, or title to property of or performance of services by a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.
Minn. Stat. § 609.52, subd. 2(3) (1994).
The record shows that in May 1992, Dudley signed a purchase agreement for a 1992 Atlantic mobile home. In June 1992, Dudley applied for a loan for the purchase of the mobile home with her mother, Rinsem, as the cosigner. The record shows that on June 10, 1992, the bank issued a check in the amount of $22,000 made payable to Dudley and Matchmaker Homes, from which the mobile home was purchased. The mobile home is registered in Dudley's name. Dudley is listed as the owner of the mobile home on the mobile home installation permit, which was dated July 1992 and was sent to Dudley's address at 101 Monet Place, Mankato. Dudley signed a form in June 1992 titled "Waiver of Exemption for a Loan" that listed Dudley as the owner of the mobile home and stated that she waived her right to transfer or sell the mobile home until the loan was paid off. In January 1993, Dudley signed a form titled "Mobile Home Ownership Verification Form and Homestead Application," in which she declared that she owned and occupied the mobile home located at 101 Monet Place. In May 1993, Dudley signed a certificate of participation in the Section 8 subsidized housing program. The certificate of participation included the warning that she must not "[o]wn or have any interest in the dwelling unit" for which she was applying for assistance. She also completed a form titled "Application for Admission and Recertification" in May 1993, on which she reported a checking account as her only asset. In 1994, Dudley completed another "Application for Admission and Recertification," on which she reported a checking account and a savings account as her only assets. From June 1993 to February 1995, the Mankato Housing Authority paid $7733 in rent for Dudley's mobile home at 101 Monet Place. A housing authority official testified that a person residing in a mobile home who was listed as a coborrower on a loan to purchase that mobile home would not be eligible for Section 8 subsidies for occupying the mobile home.
From this evidence, the jury could conclude that Dudley intended to obtain Section 8 subsidized housing assistance from the Mankato Housing Authority by intentionally deceiving the Housing Authority with a false representation that she knew to be false, that she made with the intent to defraud, and that did defraud the Housing Authority. The reasonable inferences from this evidence are consistent with Dudley's guilt and "inconsistent with any rational hypothesis except that of guilt." Alton , 432 N.W.2d at 756.