State of Minnesota v. Cory Allen Wuollet

• Court: Court of Appeals of Minnesota
• Decided: October 26, 2015
• Docket: A14-2170
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-2170

State of Minnesota, Respondent,

vs.

Cory Allen Wuollet, Appellant.

Filed October 26, 2015 Affirmed Larkin, Judge

Washington County District Court File No. 82-CR-14-3728

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Dave Snyder, Hugo City Attorney, Sarah B. Sicheneder, Assistant City Attorney, Johnson & Turner Law, Forest Lake, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stephen L. Smith, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,

Judge. UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges his conviction of violation of a harassment restraining order,

arguing that the evidence at trial was insufficient to sustain his conviction, that the district

court erred by admitting the harassment restraining order into evidence, and that he

received ineffective assistance of trial counsel. Appellant raises additional arguments in

a pro se brief. We affirm.

FACTS

Respondent State of Minnesota charged appellant Cory Allen Wuollet with

violation of a harassment restraining order, alleging that his ex-girlfriend, J.G., had a

restraining order against him and that he violated the order by driving past her residence.

The case was tried to a jury.

At trial, J.G. testified that she used to date Wuollet and that they had lived together

in Hugo for about a year and a half. She testified that they broke up in May 2013 and

that she obtained a harassment restraining order against him in June 2014, which

prohibited Wuollet from coming within 100 yards of her Hugo residence. J.G. testified

that she learned from a neighbor that Wuollet drove past her house on September 4, 2014.

The state called J.G.’s neighbor, S.L., as a witness. S.L. testified that she had seen

Wuollet hundreds of times when he was living with J.G. S.L. testified that on the

afternoon of September 4, she clearly saw Wuollet driving a black car in her

neighborhood. She testified that Wuollet came within ten feet of her and that she saw

Wuollet drive by J.G.’s house. She further testified that Wuollet slowed down, stopped

2 in front of J.G.’s house, and looked at it. S.L. saw Wuollet drive by J.G.’s house three to

four times that day.

Wuollet called two witnesses to establish an alibi defense. His girlfriend, R.N.,

testified that on September 4, she was with Wuollet at his sober house from around 4:00

p.m. until “maybe” 6:00 p.m. She saw Wuollet again at 7:15 p.m. One of Wuollet’s

friends, J.A., testified that he was with Wuollet from 4:00 p.m. to 6:00 p.m. that day.

The parties stipulated to the existence of the harassment restraining order. Given

the stipulation, the district court asked if a copy of the order would be entered into

evidence. The prosecutor and Wuollet’s attorney agreed that a copy of the order would

be received as evidence but that it would not “have to be proffered or proved up.”

Nonetheless, before admitting the restraining order into evidence as an exhibit, the

district court asked if Wuollet objected to its admission. Wuollet’s attorney responded,

“No objection, Your Honor.” The first page of the restraining order listed the following

“reasonable grounds to believe that [Wuollet] has harassed [J.G., the] Petitioner”:

(1) “Followed, pursued or stalked the Petitioner,” (2) “Made uninvited visits to the

Petitioner,” (3) “Made harassing phone calls to the Petitioner,” (4) “Made threats to the

Petitioner,” (5) “Frightened Petitioner with threatening behavior,” (6) “Broke into and

entered the Petitioner’s Residence,” (7) “Stole property from the Petitioner,” and

(8) “Took pictures of the Petitioner without permission of the Petitioner.”

During jury deliberations, the jury asked the district court two questions. The first

question was, “Can we take the information on the restraining order into consideration

when making our decision (referring to the character of the defendant).” The district

3 court instructed the jury, “No character evidence is to be considered. The harassment

restraining order is offered in evidence only to establish its existence, not to establish the

basis for it. The facts in this case need to be established independently.” The second

question was, “Can we use the testimony of one witness as the sole consideration for our

decision?” The district court instructed the jury, “[W]itness credibility is at your

complete discretion. And there is a jury instruction included that talks about some of the

things you can consider in giving witnesses credibility or not finding them credible.”

The jury found Wuollet guilty. Wuollet moved for a new trial, arguing that (1) the

district court erred by sending the restraining order into the jury-deliberation room as an

exhibit and that, at the very least, the exhibit should have been redacted; (2) his trial

counsel failed to establish the precise time when the incident took place, which would

have supported his alibi defense; and (3) examination of his cell phone records would

show that his phone was in another city on the day the incident took place. The district

court denied Wuollet’s motion, sentenced him to serve 90 days in jail, and awarded him

90 days of jail credit. This appeal follows.

DECISION

I.

Wuollet contends that the state failed to prove beyond a reasonable doubt that he

was guilty of violating the harassment restraining order. An appellate court assesses the

sufficiency of the evidence supporting a conviction by determining whether the

legitimate inferences drawn from the evidence in the record would permit a jury to

conclude that the defendant was guilty beyond a reasonable doubt. State v. Pratt, 813

4 N.W.2d 868, 874 (Minn. 2012). The court’s review is limited to a close analysis of the

record to determine whether the evidence, when viewed in the light most favorable to the

conviction, is sufficient to allow the jury to reach the verdict that it did. State v. Webb,

440 N.W.2d 426, 430 (Minn. 1989). The reviewing 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). This is especially true when a determination of guilt

depended mainly on the resolution of conflicting testimony. State v. Pieschke, 295

N.W.2d 580, 584 (Minn. 1980). The reviewing court will not disturb the verdict if the

jury, acting with due regard for the presumption of innocence and the requirement of

proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of

the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Wuollet argues that the evidence is insufficient to support the conviction because

“[t]he state’s case relies entirely on [S.L.’s] credibility since she is the only person

claiming to have seen [him].” But “[i]t is well established that a conviction can rest upon

the testimony of a single credible witness,” and “[t]he weight and credibility of individual

witnesses is for the jury to determine.” State v. Bliss, 457 N.W.2d 385, 390 (Minn.

1990). Moreover, “on review it is necessary to assume that the jury believed the state’s

witnesses and disbelieved any contrary evidence.” Id. (quotation omitted).

Wuollet argues that deference to a jury’s credibility determinations is not

unlimited, citing three supreme court cases that reversed convictions in the interests of

justice or because of highly unusual circumstances. See State v. Huss, 506 N.W.2d 290,

292-93 (Minn. 1993) (noting “unusual facts” and reversing conviction for criminal sexual

5 conduct where child victim’s testimony lacked credibility and victim had been exposed

by the state to highly suggestive material); State v. Langteau, 268 N.W.2d 76, 77 (Minn.

1978) (ordering a new trial “in the interests of justice” where victim’s actions were left

“unexplained” and motive for defendant to commit robbery against an acquaintance was

“left a mystery”); State v. Gluff, 285 Minn. 148, 151-53, 172 N.W.2d 63, 65-66 (1969)

(reversing aggravated-robbery conviction “in the interest of justice” where

uncorroborated identification of the defendant was not reliable). This case does not

present unusual facts, and Wuollet does not explain why the interests of justice require

reversal. He simply asks this court to second-guess the jury’s credibility determination.

This court must assume the jury believed the state’s witnesses and disbelieved any

evidence to the contrary. See Moore, 438 N.W.2d at 108. Because the jury could

reasonably conclude that Wuollet was guilty of the charged offense based on S.L.’s

testimony, we do not disturb the jury’s verdict.

II.

Wuollet contends that the district court erred “when it denied [his] motion for a

new trial because there was a reasonable probability that allegations of prior bad acts on

the face of a harassment restraining order affected the outcome of the trial.” “[Appellate

courts] review the denial of a motion for a new trial for an abuse of discretion.” State v.

Hawes, 801 N.W.2d 659, 676 (Minn. 2011).

As support for his new-trial motion in district court, Wuollet argued that the

harassment restraining order should not have gone into the jury-deliberation room as an

exhibit and that, at the very least, it should have been redacted. Wuollet does not raise or

6 brief those specific issues on appeal, so they are waived. See Scruggs v. State, 484

N.W.2d 21, 24 n.1 (Minn. 1992) (noting that because an appellate brief did not address

certain issues raised in a petition for postconviction relief, those issues were waived on

appeal).

On appeal, Wuollet generally argues, for the first time, that the harassment

restraining order should not have been received as an exhibit because the information on

the face of the restraining order was inadmissible character evidence and unduly

prejudicial. See Minn. R. Evid. 403 (stating that relevant evidence may be excluded “if

its probative value is substantially outweighed by the danger of unfair prejudice”), 404(b)

(stating that “[e]vidence of another crime, wrong, or act is not admissible to prove the

character of a person in order to show conduct in conformity therewith). Wuollet

acknowledges that he stipulated that the state could admit the harassment restraining

order as an exhibit, but he notes that “[a]pparently, no one noticed that the front page of

the harassment order contained [information] alleging that [he] had engaged in significant

misconduct.”

An appellate court may review an issue not raised in the district court if there was

plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.

1998). Under this standard, we consider (1) whether there was an error, (2) whether such

error was plain, and (3) whether it affected the defendant’s substantial rights. Id. “An

error is ‘plain’ if it is clear or obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn.

2002) (quotation omitted). “Usually this is shown if the error contravenes case law, a

rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

7 “The third prong, requiring that the error affect substantial rights, is satisfied if the error

was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. If the

three plain-error factors are established, a court may exercise its discretion to correct the

error only if such error seriously affected the fairness, integrity, or public reputation of

the judicial proceedings. Id. at 742.

Wuollet does not cite any caselaw, rule, or standard suggesting that a district court

errs by receiving an exhibit into evidence when the defendant stipulated to its admission

and, when asked to state a position, expressly waived objection to its admission.

Moreover, admission of the restraining order did not affect Wuollet’s substantial rights.

The district court instructed the jury that “[n]o character evidence is to be considered.

The harassment restraining order is offered in evidence only to establish its existence, not

to establish the basis for it.” Appellate courts “presume that juries follow instructions

given by the court and thereby recognize the effectiveness of curative instructions.” State

v. Gatson, 801 N.W.2d 134, 151 (Minn. 2011) (citation and quotation omitted). Because

the district court did not plainly err by admitting the restraining order into evidence

pursuant to Wuollet’s stipulation and because the district court provided a curative

instruction to reduce any potential prejudice resulting from his stipulation, Wuollet is not

entitled to relief under the plain-error standard.

In sum, the district court did not abuse its discretion by refusing to grant a new

trial based on the information on the face of the harassment restraining order.

8 III.

Wuollet contends that the district court “abused its discretion when it denied [his]

motion for a new trial based on his claim that he received ineffective assistance of

counsel when his counsel failed to present adequately his alibi defense.” See Hawes, 801

N.W.2d at 676 (stating that an appellate court reviews the denial of a new-trial motion for

an abuse of discretion). To succeed on a claim of ineffective assistance of counsel, a

defendant must show that his counsel’s representation fell below an objective standard of

reasonableness and that, but for the counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,

694, 104 S. Ct. 2052, 2064, 2068 (1984).

Wuollet asserts that his trial attorney intended to argue, based on the contents of a

police report, that the alleged violation occurred between 4:30 and 5:30 p.m., but that the

attorney “failed to establish any evidence in the record demonstrating when the crime

allegedly occurred.” But S.L. testified that the incident occurred in the afternoon, and

Wuollet’s attorney elicited testimony that, if believed, would have established an alibi

between roughly 4:00 p.m. and 6:00 p.m. Wuollet does not persuade us that his

attorney’s approach was objectively unreasonable. Moreover, even if a witness had

testified that the incident occurred between 4:30 p.m. and 5:30 p.m., the jury still could

have rejected the alibi testimony from Wuollet’s girlfriend and friend. Wuollet has not

demonstrated that the result of the trial would have been different but for his counsel’s

approach.

9 In sum, Wuollet fails to establish that his counsel’s representation fell below an

objective standard of reasonableness and that, but for the alleged errors, the result of the

proceeding would have been different. The district court therefore did not abuse its

discretion by refusing to grant a new trial based on Wuollet’s claim that his trial counsel

was ineffective.

Wuollet also contends, in a footnote, that “he did not have sufficient time to

arrange forensic analysis of location information on [his] cell phone” and that the district

court “erred in failing to grant the motion for a new trial on this basis.” Wuollet does not

cite legal authority or offer legal argument in support of that contention. “Assignment of

error based on mere assertion and not supported by argument or authority is waived

unless prejudicial error is obvious on mere inspection.” State v. Ouellette, 740 N.W.2d

355, 361 (Minn. App. 2007) (quotation omitted), review denied (Minn. Dec. 19, 2007).

Because we do not discern obvious prejudicial error, we deem this assignment of error

waived.

IV.

In his pro se supplemental brief, Wuollet points out a typographical error in his

appellate counsel’s brief. He also asserts that “[t]his matter has caused me to be

incarcerated . . . due to misrepresentation and facts that were left out that made my

innocence quite clear.” We have considered Wuollet’s pro se statements and conclude

that they do not provide a basis for relief. See Ture v. State, 681 N.W.2d 9, 20 (Minn.

2004) (rejecting pro se arguments without detailing consideration of each argument).

Affirmed.