This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1160
State of Minnesota, Respondent,
vs.
John Charles Kotten, Appellant.
Filed April 25, 2016 Affirmed Bjorkman, Judge
Redwood County District Court File No. 64-CR-14-767
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven S. Collins, Redwood County Attorney, Jenna M. Haler, Assistant County Attorney, Redwood Falls, Minnesota (for respondent)
Robert A. Lengeling, Beito & Lengeling, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his four convictions, arguing that he received ineffective
assistance of counsel and that the evidence is insufficient to prove that he (1) voluntarily inflicted demonstrable bodily harm upon a police officer, (2) obstructed legal process,
(3) engaged in conduct that disturbed others, and (4) committed a trespass. We affirm.
FACTS
On November 1, 2014 at approximately 12:46 a.m., Sergeant Jason Deterling and
Officer Troy Griffith of the Lower Sioux Tribal Police Department were at the Jackpot
Junction Casino responding to a medical situation. They noticed a group of individuals,
including appellant John Charles Kotten and his girlfriend, N.K., engaged in an oral
confrontation that escalated into shoving. After defusing the situation, Sergeant Deterling
took N.K. aside and asked for identification. Kotten repeatedly attempted to intervene in
the conversation, was agitated, and appeared to be intoxicated. Sergeant Deterling
observed that Kotten smelled of alcohol and had “bloodshot, watery eyes.”
Because of Kotten’s continued loud and belligerent behavior, casino security
personnel asked him and N.K. to leave the casino floor and return to their hotel room.
Kotten and N.K. resisted, using profanity and drawing the attention of other casino patrons.
Sergeant Deterling and Officer Griffith intervened and escorted the couple off of the casino
floor. As he was leaving with N.K., Sergeant Deterling heard a beer bottle shatter behind
him and turned around to find Kotten and Officer Griffith engaged in a struggle. The
officers eventually used a taser to subdue Kotten. As the officers brought Kotten out to the
lobby, Kotten “tried to go limp” and “swung his leg out,” causing Sergeant Deterling to
trip and fall, cutting a knuckle on his left hand.
Kotten was charged with fourth-degree assault against a police officer, obstructing
legal process, disorderly conduct, and trespass. After waiving his right to a jury trial,
2 Kotten testified that he was not intoxicated at the time of the incident, fully complied with
the officers’ directions, and had been attacked for no reason. He expressly denied tripping
Sergeant Deterling. The district court found Kotten guilty on all counts. Kotten appeals.
DECISION
I. Sufficient evidence supports Kotten’s convictions.
When reviewing the sufficiency of the evidence, we carefully analyze “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). We assume the fact-finder believed evidence that supports
the verdict and disbelieved conflicting evidence. State v. Moore, 438 N.W.2d 101, 108
(Minn. 1989). We afford a district court’s findings the same weight as a jury verdict and
will not set them aside unless they are clearly erroneous. Walker v. State, 394 N.W.2d 192,
196 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986).
Fourth-Degree Assault
A person commits assault in the fourth degree if he intentionally inflicts
demonstrable bodily harm upon a licensed peace officer who is engaged in his legal duties.
Minn. Stat. § 609.2231, subd. 1 (2014). Assault-harm is a general-intent crime that
requires proof that the actor engaged in prohibited conduct without regard to whether he
intended the specific result of his act. State v. Fleck, 810 N.W.2d 303, 310 (Minn. 2012).
But a person is only guilty of a general-intent crime if he acted volitionally. Id. at 312.
Kotten does not deny that his act of swinging his leg out while being removed from
the casino caused Sergeant Deterling to trip. But he contends that his conduct was
3 accidental, rather than volitional. Where a conviction rests upon circumstantial evidence,
we apply a two-step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). We
first identify the circumstances proved, deferring to the verdict and construing conflicting
evidence in the light most favorable to the verdict. Id. at 598-99. Second, we determine
“whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Id. (quotations omitted).
The circumstances proved through witness testimony and casino surveillance
footage demonstrate that Kotten engaged in a course of loud and belligerent behavior and
refused to cooperate with the police officers. Kotten was involved in heated oral exchanges
with fellow casino patrons, used profanity when repeatedly asked to leave the casino floor,
and physically resisted the efforts of security personnel and the officers to remove him
from the casino. Immediately before he tripped Sergeant Deterling, Kotten made his body
limp, which hampered the officers’ efforts to bring him into the lobby. On this record, we
are not persuaded that Kotten’s alternative hypothesis—that he accidentally tripped
Sergeant Deterling—is rational.
Kotten next argues that the state failed to prove that his action caused demonstrable
bodily harm to Sergeant Deterling. We disagree. Officer Deterling testified that he cut his
left hand as a result of the trip; a photograph taken within minutes confirms the injury.
This direct evidence amply supports the district court’s determination that Sergeant
Deterling sustained demonstrable bodily harm as a result of Kotten’s volitional act.
4 Obstruction of Legal Process
A person obstructs legal process when they act in a manner that “obstructs, resists,
or interferes with a peace officer while the officer is engaged in the performance of official
duties.” Minn. Stat. § 609.50, subd. 1(2) (2014). It is undisputed that the two officers
repeatedly asked Kotten to leave the casino floor. When he refused to do so, they subdued
and then physically escorted him to the lobby. Their testimony, as well as the casino
surveillance footage, consistently shows that Kotten resisted the officers’ efforts to remove
him from the casino. Because Kotten does not deny that the officers were acting within
the scope of their official duties, we conclude that sufficient evidence supports his
obstruction-of-legal-process conviction.
Disorderly Conduct
Minn. Stat. § 609.72, subd. 1(3) (2014) provides:
Whoever does any of the following in a public or private place . . .
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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 A15-1160
State of Minnesota, Respondent,
vs.
John Charles Kotten, Appellant.
Filed April 25, 2016 Affirmed Bjorkman, Judge
Redwood County District Court File No. 64-CR-14-767
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven S. Collins, Redwood County Attorney, Jenna M. Haler, Assistant County Attorney, Redwood Falls, Minnesota (for respondent)
Robert A. Lengeling, Beito & Lengeling, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his four convictions, arguing that he received ineffective
assistance of counsel and that the evidence is insufficient to prove that he (1) voluntarily inflicted demonstrable bodily harm upon a police officer, (2) obstructed legal process,
(3) engaged in conduct that disturbed others, and (4) committed a trespass. We affirm.
FACTS
On November 1, 2014 at approximately 12:46 a.m., Sergeant Jason Deterling and
Officer Troy Griffith of the Lower Sioux Tribal Police Department were at the Jackpot
Junction Casino responding to a medical situation. They noticed a group of individuals,
including appellant John Charles Kotten and his girlfriend, N.K., engaged in an oral
confrontation that escalated into shoving. After defusing the situation, Sergeant Deterling
took N.K. aside and asked for identification. Kotten repeatedly attempted to intervene in
the conversation, was agitated, and appeared to be intoxicated. Sergeant Deterling
observed that Kotten smelled of alcohol and had “bloodshot, watery eyes.”
Because of Kotten’s continued loud and belligerent behavior, casino security
personnel asked him and N.K. to leave the casino floor and return to their hotel room.
Kotten and N.K. resisted, using profanity and drawing the attention of other casino patrons.
Sergeant Deterling and Officer Griffith intervened and escorted the couple off of the casino
floor. As he was leaving with N.K., Sergeant Deterling heard a beer bottle shatter behind
him and turned around to find Kotten and Officer Griffith engaged in a struggle. The
officers eventually used a taser to subdue Kotten. As the officers brought Kotten out to the
lobby, Kotten “tried to go limp” and “swung his leg out,” causing Sergeant Deterling to
trip and fall, cutting a knuckle on his left hand.
Kotten was charged with fourth-degree assault against a police officer, obstructing
legal process, disorderly conduct, and trespass. After waiving his right to a jury trial,
2 Kotten testified that he was not intoxicated at the time of the incident, fully complied with
the officers’ directions, and had been attacked for no reason. He expressly denied tripping
Sergeant Deterling. The district court found Kotten guilty on all counts. Kotten appeals.
DECISION
I. Sufficient evidence supports Kotten’s convictions.
When reviewing the sufficiency of the evidence, we carefully analyze “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). We assume the fact-finder believed evidence that supports
the verdict and disbelieved conflicting evidence. State v. Moore, 438 N.W.2d 101, 108
(Minn. 1989). We afford a district court’s findings the same weight as a jury verdict and
will not set them aside unless they are clearly erroneous. Walker v. State, 394 N.W.2d 192,
196 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986).
Fourth-Degree Assault
A person commits assault in the fourth degree if he intentionally inflicts
demonstrable bodily harm upon a licensed peace officer who is engaged in his legal duties.
Minn. Stat. § 609.2231, subd. 1 (2014). Assault-harm is a general-intent crime that
requires proof that the actor engaged in prohibited conduct without regard to whether he
intended the specific result of his act. State v. Fleck, 810 N.W.2d 303, 310 (Minn. 2012).
But a person is only guilty of a general-intent crime if he acted volitionally. Id. at 312.
Kotten does not deny that his act of swinging his leg out while being removed from
the casino caused Sergeant Deterling to trip. But he contends that his conduct was
3 accidental, rather than volitional. Where a conviction rests upon circumstantial evidence,
we apply a two-step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). We
first identify the circumstances proved, deferring to the verdict and construing conflicting
evidence in the light most favorable to the verdict. Id. at 598-99. Second, we determine
“whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Id. (quotations omitted).
The circumstances proved through witness testimony and casino surveillance
footage demonstrate that Kotten engaged in a course of loud and belligerent behavior and
refused to cooperate with the police officers. Kotten was involved in heated oral exchanges
with fellow casino patrons, used profanity when repeatedly asked to leave the casino floor,
and physically resisted the efforts of security personnel and the officers to remove him
from the casino. Immediately before he tripped Sergeant Deterling, Kotten made his body
limp, which hampered the officers’ efforts to bring him into the lobby. On this record, we
are not persuaded that Kotten’s alternative hypothesis—that he accidentally tripped
Sergeant Deterling—is rational.
Kotten next argues that the state failed to prove that his action caused demonstrable
bodily harm to Sergeant Deterling. We disagree. Officer Deterling testified that he cut his
left hand as a result of the trip; a photograph taken within minutes confirms the injury.
This direct evidence amply supports the district court’s determination that Sergeant
Deterling sustained demonstrable bodily harm as a result of Kotten’s volitional act.
4 Obstruction of Legal Process
A person obstructs legal process when they act in a manner that “obstructs, resists,
or interferes with a peace officer while the officer is engaged in the performance of official
duties.” Minn. Stat. § 609.50, subd. 1(2) (2014). It is undisputed that the two officers
repeatedly asked Kotten to leave the casino floor. When he refused to do so, they subdued
and then physically escorted him to the lobby. Their testimony, as well as the casino
surveillance footage, consistently shows that Kotten resisted the officers’ efforts to remove
him from the casino. Because Kotten does not deny that the officers were acting within
the scope of their official duties, we conclude that sufficient evidence supports his
obstruction-of-legal-process conviction.
Disorderly Conduct
Minn. Stat. § 609.72, subd. 1(3) (2014) provides:
Whoever does any of the following in a public or private place . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor: .... (3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
Kotten asserts that the state failed to provide “any evidence” that his behavior
alarmed or disturbed anyone in the casino. We are not persuaded. The record contains
testimony of several casino staff members and witnesses who were alarmed or angered by
Kotten’s oral outbursts and physical conduct. Considering the evidence in the light most
5 favorable to conviction, there is little doubt that the state provided sufficient evidence that
Kotten’s unruly behavior disturbed casino staff and patrons.
Trespass
Under Minn. Stat § 609.605, subd. 1(b)(3) (2014), a person is guilty of a
misdemeanor if he intentionally “trespasses on the premises of another and, without claim
of right, refuses to depart from the premises on demand of the lawful possessor.” Kotten
argues that he did not commit a trespass because he was not prohibited from being in the
casino complex; at most, casino representatives ordered him to move to the lobby or return
to his hotel room. We disagree. The undisputed evidence reflects that Kotten was asked
to leave the casino floor many times to no avail. Kotten offers no legal support for his
assertion that refusing to depart from part of a larger premises cannot constitute trespass.
II. Kotten did not receive ineffective assistance of counsel.
To obtain relief based on ineffective assistance of counsel,
[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466
U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)) (citation omitted). We need not
address both the performance and prejudice prongs if one is determinative. Strickland, 466
U.S. at 697, 104 S. Ct. 2069.
6 Kotten first argues that his attorney was ineffective because he allowed Kotten to
waive his right to a jury trial. But nothing in the record suggests that Kotten’s waiver was
anything but knowing, intelligent, and voluntary. Because advising a client to waive a jury
trial is not in itself ineffective assistance of counsel, this argument lacks merit. See Miles
v. State, 512 N.W.2d 601, 603 (Minn. App. 1994), review denied (Minn. May 17, 1994).
Kotten next asserts that he is entitled to a new trial because his attorney “totally
missed the mark when it came to how to present his case.” He contends that his attorney
focused on tangential issues and failed to make meaningful objections and cross-examine
the state’s witnesses about inconsistency in their testimony and their motives to lie. All of
these challenges relate to matters of trial strategy, which we will not review unless it
implicates fundamental rights. See Sanchez-Diaz v. State, 758 N.W.2d 843, 848 (Minn.
2008) (holding that selection of evidence presented to the fact-finder and extent of
counsel’s investigation are matters of trial strategy). And an attorney’s lack of success in
convincing the fact-finder is not equivalent to ineffective assistance, rather an attorney
must make “errors so serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
On the sparse record before us, we conclude that Kotten has not met his heavy burden of
demonstrating that his attorney’s representation fell below an objective standard of
reasonableness.
Affirmed.