State of Minnesota v. Lori Ann Fulwiler ( 2015 )

This opinion will be unpublished and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
A14-1619
State of Minnesota,
Respondent,
vs.
Lori Ann Fulwiler,
Appellant.
Filed April 6, 2015
Affirmed
Halbrooks, Judge
Mille Lacs County District Court
File No. 48-CR-12-2364
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janice Jude, Mille Lacs County Attorney, Brian D. Wold, Heather R. Van Zee, Assistant
County Attorneys, Milaca, Minnesota (for respondent)
Lori Ann Fulwiler, Isle, Minnesota (pro se appellant)
Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant, pro se, challenges her terroristic-threats conviction, arguing that (1) the
evidence was insufficient to prove that she made terroristic threats, (2) the prosecutor
committed misconduct during closing argument, and (3) she received ineffective
assistance of counsel. We affirm.
FACTS
On November 13, 2012, the state charged appellant Lori Ann Fulwiler with
terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2012). The complaint
states that, on or about November 1 or 2, 2012, Fulwiler entered the break room at the
Grand Casino Mille Lacs, her place of employment, and stated that “she couldn’t wait to
‘get out of this hell hole’” and that “on her last day she was going to ‘bash heads in, flip
tables, and kill the people she didn’t like.’” A jury found Fulwiler guilty of terroristic
threats.
Fulwiler moved the district court for judgment of acquittal pursuant to Minn. R.
Crim. P. 26.03, subd. 18(3), arguing that the evidence was insufficient to sustain the
conviction, or in the alternative, for a new trial pursuant to Minn. R. Crim. P. 26.04, subd.
1, based on ineffective assistance of counsel and prosecutorial misconduct. The district
court granted an evidentiary hearing on Fulwiler’s ineffective-assistance-of-counsel claim
but denied her motion for acquittal or new trial based on prosecutorial misconduct. The
district court did not address the sufficiency-of-the-evidence claim. Following the
evidentiary hearing, the district court denied Fulwiler’s motion for judgment of acquittal
or new trial based on ineffective assistance of counsel. The district court sentenced
Fulwiler, placing her on probation for a period of five years. This appeal follows.
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DECISION
I.
When addressing a sufficiency-of-the-evidence challenge, our review is limited to
determining whether the evidence “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 “view the
evidence in the light most favorable to the verdict and assume that the factfinder
disbelieved any testimony conflicting with that verdict.” State v. Chavarria-Cruz, 839
N.W.2d 515, 519 (Minn. 2013) (quotation omitted). This is particularly true when
resolution of the matter depends on conflicting testimony “because weighing the
credibility of witnesses is the exclusive function of the jury.” State v. Pieschke, 295
N.W.2d 580, 584 (Minn. 1980). We will not reverse a conviction when “the jury, acting
with due regard for the presumption of innocence and for the necessity of overcoming it
by proof beyond a reasonable doubt,” could reasonably conclude that the appellant was
proven guilty of the offense. Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004)
(quotation omitted).
The elements of terroristic threats are (1) a person threatens (2) to commit a crime
of violence (3) with purpose to terrorize another or in a reckless disregard of the risk of
causing terror in another. State v. Bjergum, 771 N.W.2d 53, 55 (Minn. App. 2009)
(citing Minn. Stat. § 609.713, subd. 1), review denied (Minn. Nov. 17, 2009). A “crime
of violence” includes murder and assault in the first, second, and third degrees. See
Minn. Stat. § 609.713, subd. 1 (stating that “crime of violence” has the same meaning as
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“violent crime” in Minn. Stat. § 609.1095, subd. 1(d), which lists, in part, all the degrees
of murder and first- through third-degree assault).
At Fulwiler’s trial, co-worker A.L. testified that, on November 1 or 2, 2012, she
observed Fulwiler enter the break room at the casino and heard her say that she “wanted
to come in on her last day and bash people’s heads in and kill people that she did not
like.” Co-worker S.R. testified that he heard Fulwiler say “on her last day she was going
to come in and kill all the floors she didn’t like.” S.R. explained that “floors” refers to
the pit supervisors at the casino. Co-worker K.S. testified that A.L. told her that Fulwiler
threatened “flipping tables, bashing heads, whatever,” on her last day of work. K.S.’s
supervisor, T.K., testified that K.S. told her that “she had heard from another associate
that [Fulwiler] had said on her last day of work that the people she didn’t like she was
going to shoot and take down.”
A.B., the director of human resources, testified that K.S. was very scared when she
talked to her and that K.S. had been told by coworkers that Fulwiler “was going to bring
a gun into the work place and shoot the people she didn’t like.” A sergeant with the
Mille Lacs Tribal Police Department testified that he responded to a threats complaint at
the casino on November 10, 2012. The sergeant further testified that he gathered
information that “an employee had resigned and made some threats that on her last day of
employment which was coming due, that she would cause harm to employees that she
didn’t care for.” Fulwiler took the stand and also called M.S. to testify in her defense.1
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Fulwiler did not provide a transcript of her own testimony or M.S.’s testimony for
appellate review.
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Fulwiler contends on appeal that she did not make the threatening statements and
that the state’s witnesses were lying, pointing to inconsistencies in the witnesses’
testimony regarding whether the threat included the use of a gun versus “bashing heads
in.” But “[i]nconsistencies or conflicts between one witness and another do not
necessarily constitute false testimony or serve as a basis for reversal.” State v. Mems, 708
N.W.2d 526, 531 (Minn. 2006). “[B]oth credibility determinations and the weighing of
evidence are tasks reserved to the jury.” State v. Dahlin, 695 N.W.2d 588, 596 (Minn.
2005).
While the witnesses’ statements may have been inconsistent regarding whether
Fulwiler threatened to shoot people or “bash heads in,” “all inconsistencies in the
evidence are . . . resolved in favor of the state.” State v. Budreau, 641 N.W.2d 919, 929
(Minn. 2002) (quoting State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990)). Further,
the jury could have concluded that both shooting someone and “bashing heads in”
constitute, at a minimum, an assault in the third degree, which requires “substantial
bodily harm.” Minn. Stat. § 609.223, subd. 1 (2012); see also Minn. Stat. § 609.02, subd.
7a (2012) (“‘Substantial bodily harm’ means bodily injury which involves a temporary
but substantial disfigurement, or which causes a temporary but substantial loss or
impairment of the function of any bodily member or organ, or which causes a fracture of
any bodily member.”).
The jury, after having the opportunity to evaluate the credibility of all the
witnesses’ testimony, found that the state proved beyond a reasonable doubt that Fulwiler
threatened to commit a crime of violence with the purpose of terrorizing another or in
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reckless disregard of causing terror in another. We conclude that the evidence is
sufficient to sustain Fulwiler’s terroristic-threats conviction.
II.
Fulwiler argues that the prosecutor committed misconduct in her closing argument
by referencing unrelated shootings and commenting on the credibility of witnesses. We
review closing arguments in their entirety to determine whether prosecutorial misconduct
occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). The prosecutor has
“considerable latitude” in making a closing argument, and the argument is not required to
be “colorless.” State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998). Fulwiler did not
object to any of the alleged misconduct during the trial, but she moved the district court
for a new trial based on prosecutorial misconduct in a posttrial motion. The district court
denied Fulwiler’s posttrial motion. We review a district court’s denial of a posttrial
motion for a new trial based on prosecutorial misconduct for an abuse of discretion. State
v. Smith, 464 N.W.2d 730, 734 (Minn. App. 1991), aff’d, 476 N.W.2d 511 (Minn. 1991).
Whether a new trial should be granted because of misconduct
of the prosecuting attorney is governed by no fixed rules but
rests within the discretion of the trial judge, who is in the best
position to appraise its effect. The [district] court’s
determination should be reversed on appeal only where the
misconduct, viewed in the light of the whole record, appears
to be inexcusable and so serious and prejudicial that
defendant’s right to a fair trial was denied.
State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).
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Inflaming the Passions or Prejudices of the Jury
Prosecutors “should not use arguments calculated to inflame the passions or
prejudices of the jury” and should not “divert the jury from its duty to decide the case on
the evidence, by injecting issues broader than the guilt or innocence of the accused under
the controlling law.” State v. Clark, 291 Minn. 79, 82, 189 N.W.2d 167, 170 (1971)
(quotation omitted). We “pay special attention to statements that may inflame or
prejudice the jury where credibility is a central issue.” State v. Porter, 526 N.W.2d 359,
363 (Minn. 1995).
Fulwiler argues that the prosecutor committed misconduct when she stated:
I can’t come up with a reason or a scenario where that would
not be in reckless disregard that somebody would take that
comment and have concern, be fearful or worried that hey,
that’s—what we read about in the papers, the naval yard
shooting, school shooting, work place shootings—every day
it seems like. People don’t know what people are going to
actually follow through on those kinds of threats but people
know better than to make those kinds of threats.
The district court concluded that the prosecutor’s reference to the naval yard
shooting, school shooting, and work place shootings was improper and constituted error
because it referred to unrelated events not in evidence at trial. But the district court
concluded that the prosecutor did not refer to the unrelated shootings to encourage the
jury to consider extraneous facts; rather, the prosecutor sought to provide context for why
Fulwiler’s statements were in reckless disregard of causing terror in others. The district
court concluded that the prosecutor committed harmless error because one reference to
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the other shootings in a 29-minute closing argument “did not influence the jury in any
prejudicial manner so as to deny [Fulwiler] a fair trial.”
We agree with the district court’s analysis. The prosecutor’s reference to the naval
yard shooting constitutes error—particularly because that incident occurred only eight
days before this trial. If the prosecutor had provided a detailed account of the shooting or
had repeatedly reminded the jury of other recent shootings, the reference may have been
prejudicial to Fulwiler. But, here, the prosecutor only referenced the other shootings
once in the course of a two-day trial. Therefore, we conclude that the prosecutor’s error
was harmless.
Commenting on the Credibility of the Witnesses
Fulwiler also argues that the prosecutor committed misconduct when she
commented on the credibility of the witnesses. “It is improper for a prosecutor in closing
argument to personally endorse the credibility of witnesses.” Id. at 364. “Disparaging
the defense or its witnesses” is prosecutorial misconduct, as is “bolster[ing] the
credibility of the state’s witnesses with the prosecutor’s own opinion.” State v. Hobbs,
713 N.W.2d 884, 887-88 (Minn. App. 2006), vacated in part on other grounds (Minn.
Dec. 12, 2006). But the prosecutor may “analyze the evidence and vigorously argue that
the state’s witnesses were worthy of credibility whereas defendant and his witnesses were
not” and “urge the jury to consider defendant’s interest in the outcome in assessing his
credibility.” State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977).
Here, the prosecutor summarized the testimony and suggested explanations for the
discrepancies in the witnesses’ testimony. After summarizing Fulwiler’s testimony, the
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prosecutor asked the jury, “[I]s that credible? Does that make sense to you?” The
prosecutor pointed to Fulwiler’s interest in the outcome of the case, stating, “Does she
have motive to lie? You bet.” But a prosecutor may properly acknowledge that the
defendant has a stake in the outcome of the case. See id. In addition, the prosecutor
repeatedly reminded the jury that the state carried the burden of proof and that it was the
jury’s job to assess the credibility of the witnesses. Therefore, the prosecutor did not
improperly comment on the credibility of the witnesses. We conclude that the district
court did not abuse its discretion by denying Fulwiler’s motion for a new trial based on
prosecutorial misconduct.
III.
Fulwiler argues that she received ineffective assistance of counsel because her
counsel advised her against testifying to certain facts and did not call any character
witnesses in her defense. “[I]neffective assistance of counsel claims involve mixed
questions of law and fact,” which we review de novo. State v. Rhodes, 657 N.W.2d 823,
842 (Minn. 2003). The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 2063 (1984). To prevail on her claim, Fulwiler must show “that counsel’s
performance fell below an objective standard of reasonableness, and that a reasonable
probability exists that the outcome would have been different but for counsel’s errors.”
Rhodes, 657 N.W.2d at 842. We apply “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. Generally, we will not review an ineffective-assistance-of-counsel
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claim based on trial strategy, which includes decisions such as what evidence to present
and what witnesses to call at trial. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).
Fulwiler did not provide the transcript of her own testimony at trial or the
transcript of the February 7, 2014 evidentiary hearing. Our review is limited to the
partial transcripts from the jury trial and the district court’s order denying Fulwiler’s
motion based on ineffective assistance of counsel. The district court found that
Fulwiler’s trial counsel’s testimony at the February 7 evidentiary hearing was credible
and that her counsel spoke with her on a number of occasions and appeared with her at all
court proceedings. The district court noted that Fulwiler’s counsel “seemed well
prepared [at trial], and he vigorously advocated on behalf of his client.”
Fulwiler’s claims involve strategic trial decisions—namely that her counsel
advised her to not make certain statements during her testimony and declined to call
certain witnesses. The partial transcripts available in the record demonstrate that
Fulwiler’s counsel advocated for her, maintained her innocence, adequately cross-
examined the state’s witnesses, and otherwise conducted himself in an objectively
reasonable manner. His advice and decisions during trial were discretionary trial-strategy
tactics, which we decline to review. Based on the limited record before us, Fulwiler has
failed to demonstrate that her counsel’s performance fell below an objective standard of
reasonableness and that a reasonable probability exists that the outcome would have been
different but for counsel’s alleged errors.
Affirmed.
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