This opinion will be unpublished and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.
2

U N P U B L I S H E D O P I N I O N

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 
3

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 thirddegree 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 
4

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.

D E C I S I O N

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 
5

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.
6

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 
7

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”).
8

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 
9

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.
10

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 
11

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.
12

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 firstdegree 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).
13

“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 
14

. . . 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 (assaultfear) 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 
15

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 
16

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
17

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.
18

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.
CS-1

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.