State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1067

State of Minnesota,
Respondent,

vs.

Aaron Lavell Ross,
Appellant.

Filed May 28, 2019
Affirmed
Cleary, Chief Judge

Clay County District Court
File No. 14-CR-17-4449

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pamela L. Foss, Acting Clay County Attorney, Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa S heridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Florey, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this direct appeal from a final judgment of conviction, app ellant Aaron Lavell
Ross argues that the district c ourt erred by failing to appoint substitute counsel and by
instructing the jury that he had a duty to retreat before actin g in self-defense. Ross also
raises several issues in his pro se supplemental brief. We affirm.

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FACTS
Following a domestic incident in volving T.R., the state charged Ross with felony
domestic assault under Minn. Stat. § 609.2242, subd. 4 (2016) a nd third-degree assault
under Minn. Stat. § 609.223, subd. 1 (2016). Ross demanded a speedy trial. Before trial,
the state notified Ross that it intended to introduce testimony from L.C.—an alleged victim
in a different domestic assault case pending against Ross—as relationship evidence. The
day before trial, Ross voiced complaints about his public defen der, stating that counsel
refused to introduce certain text messages from L.C. Ross argu ed that these messages
proved L.C. had lied to the police about a sexual encounter she had with Ross and she had
a motive to lie in this case. Ross also complained that his public defender lied to the chief
public defender and refused to introduce letters into evidence that Ross had written to the
state.
Ross then requested a different attorney, stating that his cur rent public defender was
not adequately representing him and had told him to “piss off.” Ross continued that
because the public defender would not introduce the text messag es, Ross was not
comfortable with him as counsel: “He ain’t willing to do it, and I just want somebody who
[is] willing to do it.” Counsel responded that his “office makes a decision on what is and
is not admissible into evidence and what [the office] will bring forward.” The district court
determined that this was a disag reement over trial strategy. T he district court informed
Ross that he could hire a private attorney if he wanted, but th e court declined to appoint
substitute counsel.

3
Ross continued to complain about his public defender and insis ted that the text
messages and letters be introduced into evidence. The district court told Ross that these
were trial strategy issues and it was not going to appoint a ne w public defender. Counsel
stated that he thought, “because of the . . . attitude of Mr. R oss, if he wants to represent
himself, he should be given that opportunity.” The district co urt then offered Ross the
option of proceeding with the public defender or pro se. Ross stated that he felt like he had
no choice but to allow the public defender to continue to represent him.
A t t r i a l , T . R . t e s t i f i e d t o t h e f o l l o w i n g . I n e a r l y D e c e m b e r , T.R. and her two
children moved into Ross’s house. According to T.R., at first she intended to rent a room
from Ross, but shortly after moving in, the two began dating an d T.R. moved her things
into Ross’s bedroom. A few days later, T.R. left the house to bring her older daughter and
Ross’s two children to school. She then ran some errands, pick ed up her brother, and
returned to the house around noon. T.R. had intended to drop o ff a bike at the house and
then give her brother a ride, but when she entered the house, Ross became agitated because
he had told her not to bring any men over. T.R. left with her brother and began to argue
with Ross through text messages.
When T.R. returned to the house, the two continued to argue in person, and
eventually, Ross demanded that T.R. move out. Ross then went downstairs to his bedroom
and began to take T.R.’s things out of the closet. T.R. followed and tried to grab the clothes
out of Ross’s hands. T.R. testified that as they struggled ove r the clothing, Ross punched
her three times and one of the blows split her lip open. T.R. also claimed that while

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struggling with Ross, she never hit or scratched him, but on cr oss examination, she
admitted that she hit Ross with her phone.
According to Ross’s testimony, as he began to remove T.R.’s clo thes from the
closet, T.R. grabbed him from behind and began “bludgeoning” him on the head with her
phone. Ross claimed that to ge t T.R. to stop hitting him, he p unched her once. He also
testified that he was in the clo set and could not retreat. Ros s continued to move T.R.’s
things upstairs while T.R. called 911 to report that Ross had hit her. After T.R. called the
police, Ross went outside to wait for their arrival. When offi cers responded to the scene,
Ross told them that T.R. had started hitting him in the head an d he hit her in self-defense.
Ross also claimed that he felt sick and dizzy due to the blows to his head. He requested
medical attention, and the officers brought him to a hospital. An officer took several photos
of Ross’s head, which showed a long cut or scratch on the top o f his head and what Ross
claimed were bruises inflicted by T.R.
L.C., T.R.’s medical provider, and two police officers also tes tified at trial. Ross
argued that he acted in self-defense. After the state and Ross rested, the district court gave
the jury instructions, including a self-defense instruction. T he district court told the jury
that “[t]he legal excuse of self -defense is available only to t hose who act honestly and in
good faith. This includes the duty to retreat or avoid danger i f reasonably possible.”
Although the parties suggested changes to the self-defense instruction, neither objected to
including the “duty to retreat” language. The jury returned guilty verdicts on both counts.

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D E C I S I O N
Ross first argues that the district court erred by failing to appoint substitute counsel.
Criminal defendants have a constitutional right to counsel. U.S. Const. amend. VI; Minn.
Const. art. I, § 6. This includes the right to counsel of choice. State v. Worthy, 583 N.W.2d
270, 278 (Minn. 1998). But when an indigent defendant is given court-appointed counsel,
he must accept the attorney appointed. Id. A district court may grant a defendant’s request
for substitute counsel only if exceptional circumstances exist and the request is timely and
reasonably made. Id. We review a district court’s decision not to appoint substit ute
counsel for an abuse of discretion. State v. Munt, 831 N.W.2d 569, 586 (Minn. 2013).
The district court did not abuse its discretion when it refused to appoint substitute
counsel because Ross’s complain ts did not establish exceptional circumstances.
Exceptional circumstances affect counsel’s ability or competenc e t o r e p r e s e n t t h e
defendant. Id. Ross’s main complaint was that counsel would not introduce c ertain text
messages into evidence. The decision on what evidence to present is part of an attorney’s
trial strategy and lies within counsel’s discretion. Carridine v. State, 867 N.W.2d 488, 494
(Minn. 2015). The supreme court has stated that, in certain circumstances, disagreements
over trial strategy could affect the appointed attorney’s ability or competence to represent
the defendant. State v. Gillam, 629 N.W.2d 440, 450 (Minn. 2001). But here, Ross does
not explain why counsel’s decision was unreasonable or negative ly affected counsel’s
ability or competence to represent him.
It also was not an abuse of discretion to find that Ross’s claim that counsel had told
him to “piss off” did not establish exceptional circumstances. Although this may show

6
personal tensions between Ross and counsel, it does not establi sh an effect on counsel’s
ability or competence. Cf. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (agreeing
with the district court’s conclusion that the defendant’s proff ered reason for requesting
substitute counsel, that he had “been belittled, yelled at, in my trauma through this,” was
merely “personal tension” betwe en counsel and the defendant and d i d n o t e s t a b l i s h
exceptional circumstances). Ross also made his request for sub stitute counsel the day
before trial and after he had made a speedy-trial demand, rende ring the request untimely.
Cf. State v. Clark, 722 N.W.2d 460, 465 (Minn. 2006) (concluding the defendant’s request
for substitute counsel was untimel y when the defendant made the request after jury
selection and a speedy trial demand); State v. Reed , 398 N.W.2d 614, 616 (Minn. App.
1986) (concluding that the defe ndant’s request for substitute c ounsel a week before trial
was not timely), review denied (Minn. Feb. 13, 1987).
Ross argues that he raised serious allegations that required th e district court to
conduct a searching inquiry. “When a defendant voices serious allegations of inadequate
representation, the district cour t should conduct a searching i nquiry before determining
whether the defendant’s complaints warrant the appointment of substitute counsel.” Munt,
831 N.W.2d at 586 (quotation om itted). The district court allo wed Ross to voice his
concerns about counsel and allowed counsel to respond. But Ross’s complaints were mere
general dissatisfaction with appointed counsel and did not requ ire further inquiry. Id.
(“But a defendant’s general ‘dissatisfaction’ with appointed counsel does not amount to an
exceptional circumstance.”). The district court did not abuse its discretion by failing to
appoint substitute counsel.

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Next, we consider whether the district court committed plain e rror by instructing the
jury that Ross had a duty to retreat. Generally, an appellate court will not consider an
alleged error in jury instructions unless an objection was made at trial. State v. Cross, 577
N.W.2d 721, 726 (Minn. 1998). Even so, this court may consider the issue if there is plain
error affecting the appellant’s substantial rights. State v. Griller , 583 N.W.2d 736, 740
(Minn. 1998). Under plain-error review, Ross must show that th ere was (1) an error;
(2) that is plain; and (3) that affects his substantial rights. Id. If Ross satisfies all prongs,
this court “may correct the error only if it seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” State v. Crowsbreast , 629 N.W.2d 433, 437 (Minn.
2001) (quotation omitted).
Instructing the jury that Ross had a duty to retreat in his ow n home was error that is
plain. “An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (qu otation omitted). Generally, a defendant has t he duty to retreat, if
reasonably possible, before acting in self-defense. State v. Glowacki , 630 N.W.2d 392,
399 (Minn. 2001). It is well established, however, that when a defendant is in his home,
he need not retreat before acting in self-defense. Id. at 402. It is uncontested that Ross
was acting in his own home. As a result, it was a material mis statement of the law to
instruct the jury that Ross had the duty to retreat. State v. Baird , 654 N.W.2d 105, 113
(Minn. 2002). That misstatement was error, and that error is plain. Id.
Yet this error did not affect Ross’s substantial rights. Plain error affects substantial
rights when it was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d

8
at 741. Prejudice is shown if there is a “reasonable likelihoo d” that the error “had a
significant effect” on the jury’s verdict. Id. Ross bears the heavy burden of establishing
an effect on substantial rights. Id. When deciding whether an error had a significant effect
on the jury’s verdict, we consider the pervasiveness of the err or and the strength of the
state’s case. State v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010).
Here the error was not pervasive. The state did not argue or emphasize that Ross
had a duty to retreat. The state did not cross-examine Ross on his claim that he could not
retreat, nor question any of the witnesses on whether Ross coul d retreat, or otherwise
present any evidence that Ross could have retreated. Additiona lly, Ross’s injuries were
minimal, belying his claim that he had been hit ten times. After reviewing the record, we
conclude that Ross has not shown that there is a reasonable lik elihood that the duty-to-
retreat instruction influenced the jury’s verdict.
In a pro se supplemental brief, Ross argues that his counsel w as ineffective in
declining to introduce L.C.’s text messages into evidence. To show ineffective assistance
of counsel, Ross must show “that counsel’s representation fell below an objective standard
of reasonableness, and that a re asonable probability exists tha t the outcome would have
been different but for counsel’s errors.” State v. Lahue , 585 N.W.2d 785, 789 (Minn.
1998). Counsel’s decision on what information to present to the jury is part of trial strategy.
Id. at 789-90. We therefore decline to address Ross’s claim. See Sanchez-Diaz v. State,
758 N.W.2d 843, 848 (Minn. 2008) (“Generally, we will not review ineffective assistance
of counsel claims based on trial strategy.”).

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Ross also argues in his pro se supplemental brief that the sta te committed
prosecutorial misconduct by suppressing a supplemental report of a pretrial interview with
L.C. and a police interview of Ross about the incident involving L.C. Under Brady,1 if the
state suppresses material evidence favorable to the defendant, t h e r e i s a d u e p r o c e s s
violation. Campbell v. State, 916 N.W.2d 502, 510 (Minn. 2018). “Evidence is material
under Brady if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different .” Id. at 511 (quotation
omitted). Ross argues that the s upplemental report and police interview prove that L.C.
did not tell the police about a sexual encounter with Ross that occurred just before the
alleged domestic assault involvi ng L.C. This evidence is not m aterial because L.C.
admitted during her testimony that she did not initially tell the police about this encounter.
Affirmed.

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).