State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1305

State of Minnesota,
Respondent,

v.

Jon Vernon Tuma,
Appellant.

Filed October 23, 2017
Affirmed
Bjorkman, Judge

Anoka County District Court
File No. 02-CR-15-6005

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions of third- and fourth-degree assault and theft of
a motor vehicle, arguing that the evidence is insufficient and that he was deprived of his
constitutional right to effective assistance of counsel. We affirm.
FACTS
On September 13, 2015, at about 1:00 p.m., Anoka County sheri ff’s deputies
responded to a call of a suspicious person in a remote and isolated area in Columbus. When
deputies arrived on the scene, they found a black Ford Explorer parked in the middle of the
road with the driver’s door open. The vehicle had been reported stolen by its owner, T.K.,
who told police that he had been unloading it at his Minneapolis home when he discovered
the vehicle was gone from the driveway.
A canine officer followed a track from the vehicle to a small duffle bag concealed
in the woods. Deputies opened the bag and discovered a pill bottle and court documents
with appellant Jon Vernon Tuma’s name. The vehicle was subsequently removed from the
scene.
At about 4:30 p.m., deputies responded to a second call of a suspicious person in
the same area and found Tuma, who appeared to be under the influence of drugs, in the
caller’s driveway. Tuma told the deputies that a friend loaned him a black vehicle, which
had apparently been stolen from where he parked it, but he could not remember his name.
As the deputies arrest ed Tuma for unauthorized use of a motor vehicle , Tuma began to
struggle and kick. Eventually, the deputies had to hobble his legs.

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At the jail, Tuma resisted booking procedures, and it took at least eight deputies and
jail personnel to restrain him. During the scuffle, Tuma bit Deputy Christopher Fahey’s
arm, breaking the skin. Deputy Fahey’s pinky finger was also broken as he attempted to
subdue Tuma.
The state charged Tuma with third- and fourth -degree assault, theft of a motor
vehicle, and obstruction of legal process. Tuma waived his jury-trial rights, and the parties
stipulated to submission of the law -enforcement reports, three videos, two photographs,
and certified copies of Tuma’s prior convictions for imp eachment purposes. The parties
also stipulated that (1) Tuma was in Anoka County on September 13, 2015; (2) Deputy
Fahey suffered substantial bodily harm in the form of a broken finger; (3) Deputy Fahey
suffered demonstrable bodily harm in the form of a b ite wound; and (4) “[t]he motor
vehicle in question is a black Ford Explorer owned by [T.K.], and that [T.K.] did not give
anyone permission to drive the motor vehicle on September 13, 2015.”
Tuma also testified. A man named Robert dropped him off in the Carlos Avery
Wildlife Area so he could scout it out for bow hunting. Tuma removed his cellphone
battery to conserve energy and he cached his duffle bag in the woods. Tuma saw a woman
outside a house and stopped to apologize for trespassing. He then asked for a drink of
water, and she went into the house. A man came out, and Tuma repeated his explanation.
The man brought Tuma a glass of water. The man was wearing latex gloves and carried a
knife. Tuma thought the man was trying to get his f ingerprints, so he wiped the glass off
and left. He then encountered the deputies. Tuma has no memory of his arrest and the
assault incident, but recalls jail personnel attacking him.

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The district court found Tuma guilty of all four charges and imposed concurrent
presumptive sentences. Tuma appeals.
D E C I S I O N
I. Sufficient evidence supports Tuma’s convictions.
When considering a claim of insufficient evidence
our review is limited to a painstaking analysis of the record to
determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to permit the jurors
to re ach the verdict which they did. We ass ume the jury
believed the State’s witnesses and disbelieved any evidence to
the contrary. And we 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 that the defendant was guilty of the
charged offense.

State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation and citations omitted). We
apply the same standard of review to both jury and court trials. State v. Palmer , 803
N.W.2d 727, 733 (Minn. 2011).
Tuma first contends the evidence is not sufficient to sustain his two assault
convictions. “Assault” is defined as “the intentional infliction of or attempt to inflict bodily
harm upon another.” Minn. Stat. § 609.02, subd. 10(2) (2014). Although a defendant’s
action must be intentional, “assault -harm is a general -intent crime.” State v. Fleck , 810
N.W.2d 303, 309 (Minn. 2012). A general -intent crime “simply prohibits a person from
intentionally engaging in the prohibited conduct.” Id. at 308. It does not require an intent
to cause a specific result. Id. To establish third-degree assault, the state must prove that
the victim suffered substantial bodily harm. Minn. Stat. § 609.223, subd. 1 (2014). Fourth-

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degree felony assault, which is specific to law enforcement and first-responder personnel,
requires a showing that the victim sustained demonstrable bodily harm. Minn. Stat.
§ 609.2231, subd. 1 (2014).
The parties stipulated that Deputy Fahey suffered substantial bodily harm and
demonstrable bodily harm. Tuma argues the state did not prove that he intended to or
actually inflicted bodily harm. We are not persuaded because direct evidence supports his
assault convictions. See Bernhardt v. State , 684 N.W.2d 465, 477 n.11 (Minn. 2004)
(stating that direct evidence is based on personal knowledge and observation). While Tuma
asserts that he does not remember the incident, the law -enforcement reports and other
stipulated evidence show Tuma bit Deputy Fahey with enough force to break the skin and
broke Fahey’s finger while struggling with him and resisting restraints. Tuma’s actions
were observed by several other deputies. Even if Tuma did not intend to harm Deputy
Fahey, he deliberately engaged in the biting, kicking, twisting, and struggling conduct that
led to the injuries.
Tuma next asserts that insufficient circumstanti al evidence supports his motor-
vehicle theft conviction. See id. (stating that circumstantial evidence is based on inference
and not on personal knowledge, direct observation, or eyewitness testimony). We review
the sufficiency of circumstantial evidence under a two -step process. State v. Silvernail ,
831 N.W.2d 594, 598 (Minn. 2013). First, we identify the circumstances proved, deferring
to the fact-finder’s acceptance of the state’s proof and rejection of other evidence. Id. at
598-99. In doing so, we “consider only those circumstances that are consistent with the
verdict.” Id. at 599. Second, we “determine whether the circumstances proved are

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consistent with guilt and inconsistent with any rational hypothesis except that of guilt,”
without deferring to the fact-finder’s choice between reasonable inferences. Id. (quotations
omitted).
The district court found that (1) deputies observed an abandoned vehicle with its
driver’s door open , left in the middle of the road in an isolated area; (2) the vehicle had
been stolen earlier that day; (3) the owner had not given anyone permission to use the
vehicle; (4) a canine tracked a scent from the vehicle to an abandoned duffle bag that
contained personal items belonging to Tuma; (5) Tuma was found in the same area and
told deputies that his vehicle had been stolen; and (6) Tuma told deputies that a friend
loaned him the vehicle but he was unable to describe it or name the friend.
Tuma contends this evidence is insufficient to sustain his conviction and, even if it
were, the evidence is also consistent with the rational hypothesis that a friend dropped him
off at the wildlife area. We disagree. The district court rejected Tuma’s testimony on this
point. Accordingly, it is not part of the circumstances proved. Id. at 598-99. Based on our
careful review of the record, we conclude that the circumstances proved are only consistent
with guilt: Tuma arrived at the wildlife area in a stolen vehicle that he did not have
permission to drive or use.
II. Tuma’s ineffective-assistance-of-counsel claim lacks merit.
Generally, a claim of ineffective assistance of counsel that requires evidence outside
of the trial record or additional fact -finding should be raised in a postconviction
proceeding. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). But such a claim may be
considered in a direct appeal if it is based solely on the trial record. Id. To sustain a n

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ineffective-assistance-of-counsel claim, a defendant “must demonstrate that (1) his
counsel’s performance fell below an objective standard of reasonableness, and (2) that a
reasonable probability exists that the outcome would have been different but for counsel’s
errors.” Id. “[T]here is a strong presumption that counsel’s performance was reasonable.”
Id. And we generally do not review ineffective-assistance-of-counsel claims that are based
on matters of trial strategy. Id. This includes the extent of counsel’s investigation and the
selection of evidence to present to the jury. Id.
Much of Tuma’s argument centers on whether his trial lawyer adequately prepared
for trial or wrongly rejected his suggestions for a defense strategy. Tuma summarizes his
claims by saying that his lawyer “ignored [his] demands,” raised an “ineffective de fense”
of intoxication, “disobey[ed] [his] demands,” did not get his consent for her trial strategy,
failed to contact him in a timely fashion, and did not include him in strategic planning.
These are largely matters of trial strategy, and we will not sec ond-guess counsel’s
decisions. And a review of the record does not support Tuma’s contention that his lawyer
was unprepared or uncommunicative. In sum, Tuma’s claim of ineffective assistance of
counsel is meritless.
Affirmed.