State of Iowa v. Pete Jason Polson

IN THE COURT OF APPEALS OF IOWA

No. 15-2104
Filed April 19, 2017

STATE OF IOWA,
Plaintiff-Appellee,

vs.

PETE JASON POLSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.

The defendant appeals from his convictions for attempt to commit murder,

assault with intent to inflict serious injury, two counts of willful injury causing

serious injury, intimidation with a dangerous weapon, possession of a controlled

substance with intent to deliver (marijuana), and failure to possess a tax stamp.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

Pete Polson appeals from his convictions for attempt to commit murder,

assault with intent to inflict serious injury, two counts of willful injury causing

serious injury, intimidation with a dangerous weapon, possession of a controlled

substance with intent to deliver (marijuana), and failure to possess a tax stamp.

On appeal, Polson raises a number of issues; he claims (1) the court abused its

discretion when it denied his request to substitute counsel one business day

before trial; (2) there was not sufficient evidence to support the jury’s verdict

regarding his specific intent; (3) the weight of the evidence does not support the

jury’s verdict; and (4) trial counsel was ineffective for failing to retain an expert

witness on the effects of psychotropic drugs and failing to move to sever the

shooting incident charges from the drug charges.

I. Background Facts and Proceedings.

On November 17, 2014, at approximately 6:30 a.m., Mark Mitchell left his

home to start his vehicle, which was sitting in the driveway. As Mitchell walked

toward his truck, he was approached by a man who pulled a gun out of his

pocket and shot Mitchell in the stomach. The man fired a second shot, but the

second bullet missed Mitchell and entered the home. Mitchell was then able to

retreat back into the house, and Mitchell’s young son called 911. The first

officers were dispatched at 6:32 a.m.

Nearby, Zachary Whitehill had just pulled over to the side of the road

because he was having difficulty seeing due to snow blowing up and freezing his

windshield wipers. Whitehill exited his vehicle, and as he was reaching for the

wiper blades, he was shot twice—once in the back and once in the neck. The
3

shooter then left the scene, and a concerned citizen stopped and called 911.

Whitehill reported the shooter had driven off in a green Ford Explorer with Iowa

license plates. Officers were dispatched to the second scene at 6:36 a.m.

Matthew Stephenson had stopped at the home of his children’s

grandparents in order to drop off his son’s school bag. Stephenson left his

vehicle running, and as he was returning to the truck, a number of shots—four or

five—rang out. Stephenson was able to make it into the home without being hit,

but a number of bullets missed him by mere inches. Stephenson called 911 at

6:44 a.m., and he reported the shooter was driving an older green SUV and

wearing a bright “hunting” orange sweatshirt.

Around 7:00 a.m., Trooper Brian Moses was driving in his squad car near

the location of the three shootings when he noticed a man matching the shooter’s

description wearing an orange sweatshirt and driving a green Ford Explorer. The

vehicle drove past Moses, and Moses lost sight of it for a short time. However,

he and another trooper, Andrew Klein, located, and were able to block, the

vehicle. Trooper Klein ordered the driver out of the vehicle, and he complied.

Once they had the driver, they were able to identify him as Pete Polson.

Stephenson was brought to the scene shortly thereafter, and he identified Polson

as the man who had shot at him “without a doubt.”

Officers searched the area Polson had been driving when Moses lost sight

of him, and they found a handgun in the ditch. Although there had been a

snowstorm a couple days earlier, the gun was not covered in snow. Later testing

confirmed that Polson’s DNA was on the handgun. Additionally, casings found at

each of the scenes were tested and determined to have been shot from the
4

recovered handgun. Polson’s orange sweatshirt was also tested, and gunshot

residue was found on it.

Later the same day, officers conducted a search of Polson’s residence. In

it, they found in excess of fifteen pounds of marijuana, as well as some

packaging materials and scales. Additionally, a couple of spoons with

methamphetamine residue were recovered.

Special Agent Matthew Clifton interviewed Polson at the police station on

the day of the shootings. When asked, Polson responded he had not used

narcotics or drugs for a couple years. Additionally, Polson said he did not feel

intoxicated at the time. Clifton testified that based on his observations of Polson

and his demeanor, Clifton believed that Polson was not intoxicated at the time.

On December 22, 2014, Polson was charged by trial information with a

number of crimes stemming from November 17. Polson was charged with three

counts of attempted murder (count I: Mark Mitchell; count II: Zachary Whitehill;

count III: Matthew Stephenson); two counts of willful injury causing serious injury

(count IV: Zachary Whitehill; count V: Mark Mitchell); one count of intimidation

with a dangerous weapon (count VI); one count of conspiracy to deliver a

controlled substance (marijuana) (count VII); one count of possession of a

controlled substance with intent to deliver (marijuana) (count VIII); and failure to

affix a tax stamp (count IX).

In early October 2015, Polson filed a notice that he intended to rely on the

defense of intoxication.

Jury orientation took place on the morning of Friday, October 9; the trial

was scheduled to start the following Monday. Then, on Friday afternoon, the
5

court held a hearing on Polson’s pro se motion to dismiss or substitute his

appointed trial counsel. The court stated, “I’ll go ahead and have you [Polson]

make any statements you would like, and then I’m going to have [trial counsel]

respond to that.” Polson then stated:

I just feel that [trial counsel] doesn’t have my best interests,
you know. He’s dropped the ball on a lot of things. It’s all there in
the affidavit. He’s—we talked about filing for certain things, and he
hasn’t done it. Just, you know—and I just feel that a lot of things
haven’t gone like he says they were going to and he doesn’t have
my best interests, Your Honor. I don’t feel comfortable going to trial
with him. So that’s it.

Polson’s trial counsel then responded:

I can tell the Court, particularly in reviewing Mr. Polson’s affidavit at
the end, I have visited him at the jail more than two times, and
those have been at least a couple of longer occasions. We’ve also
had multiple chances to talk over the iWeb. The jail has a system
set up that’s i-W-e-b to do internal communications with clients, and
those are secure. So they are not recorded or maintained by the
jail. We have had multiple opportunities to do that.
We have filed a motion for discovery and had discovery. We
have filed notice of intent to take depositions, have deposed all of
the witnesses that the State has except for one that was just
recently added. I don’t know if the county attorney had a chance to
get that person subpoenaed, but we’ll talk about whether that is
going to be an issue or not. We’ve had extensive plea negotiations
on this case, with a final offer that is sitting out there that at this
point Mr. Polson is not in agreement with.
I’ve advised my client about what I think the likely outcome
of his trial is going to be. I’ve advised—I have balanced that against
what the plea offer is, and I’ve given him advice as to whether or
not in my opinion he should take that, keeping in mind that it is his
decision. And as ever, I will zealously advocate for him at trial if we
go to trial.
Trial is scheduled for Monday—or for Monday. We had had
some conversation about filing a motion for change of venue. That
is a strategic decision to be made by the attorney. And at times I’ve
considered filing that, and we’ve talked about that, but in the end,
looking at the facts of this case, getting some discussion and
getting—and talking with other attorneys to get a feel from what
their opinions would be, I have chosen not to file that motion for
change of venue, and I haven’t filed it.
6

Also, we’ve talked about prospective defenses, and I filed
one that I believe is most appropriate for this case, that’s a defense
of intoxication.
So, Judge, I am not asking to withdraw. Trial is scheduled
for Monday. I think I can still try this case. I leave that up to the
Court’s discretion.

The State then weighed in, indicating that it had a number of conversations with

trial counsel, that trial counsel appeared to have reviewed all reports and videos

before depositions (based on the questions counsel asked), and it resisted any

motion to continue that would be necessary if a new attorney was to be

appointed.

The court then ruled from the bench.1 The court stated, “I find that you

may have some disagreements as to some strategy, but I don’t think that’s a

complete breakdown of communications.” The court also considered the

“efficiency issues,” noting the case had been pending a long time and that a lot of

work and resources had taken place to prepare for the trial that was scheduled to

begin on the next business day. The court denied Polson’s motion.

The trial began on October 12, 2015. A number of police officers,

troopers, and special agents who participated in the investigation testified,

including Trooper Moses, Trooper Klein, Special Agent Clifton, and Special

Agent Anthony Birmingham, who each had contact with Polson on November 17

and opined Polson was not under the influence when they interacted with him.

Polson’s former girlfriend testified in his defense at trial. She testified that

she knew Polson to use methamphetamine—usually with syringes. Oftentimes,

Polson would hallucinate and become paranoid after using methamphetamine;

1
The court also later filed a written ruling, reiterating and supplementing the previous
ruling.
7

she would later report to him what he had done while he was high, and Polson

would be surprised to learn of his actions. She saw Polson on the evening of

Friday, November 14, 2014, but she left because he was talking about “partying.”

She next saw him, in passing, at the police station on November 17. She got the

impression he “seemed lost” when she saw him there. On cross-examination,

the ex-girlfriend testified she could tell when Polson was high based on his body

language; he would not be able to sit still or hold a conversation. Additionally,

she stated Polson was not able to drive well when he was high.

Billi Jo Bailey was with Polson the weekend before the shootings. She

testified she saw Polson use methamphetamine a number of times throughout

that weekend, with the last time being around 10:30 or 11:00 p.m. on November

16. Afterward, Polson was acting jealous and antsy, and he was not making any

sense; he was convinced Bailey was hiding Polson’s ex-girlfriend under her bed.

Bailey then made Polson leave her house. She testified she saw the

methamphetamine before he ingested it and it looked the same as other

methamphetamine; Bailey also used methamphetamine that night, and she did

not have an atypical reaction. After the shootings, police officers questioned

Bailey, and she told them she and Polson had ingested marijuana on November

16. She first mentioned they had used methamphetamine approximately one to

two months before the trial. Additionally, when asked, Bailey testified Polson

was a “horrible driver” when he was high; he would drive fast and erratic, just like

his behavior.

Polson testified in his own defense. He stated he was “slamming”

methamphetamine—injecting it with a syringe—throughout the weekend before
8

the shootings. He ingested methamphetamine the final time around midnight on

the morning of November 17. He “knew right then something was wrong” and “it

didn’t even taste like dope.” According to Polson, the next thing he remembers

after injecting methamphetamine is cops being all around him. He testified he

could not and did not form the specific intent to harm anyone. He has a

“splotchy” memory of the next three or four days; he remembers being placed in

a police vehicle after he was apprehended, but he does not remember being

asked at the station if he had been using drugs, and he does not remember

calling his ex-girlfriend from jail and telling her it was all a “big misunderstanding”

and he “can beat this shit.”

The case was submitted to the jury on Friday, October 16. On October

21, the jury returned with its verdict. The jury found Polson guilty of count I and

counts IV-XI, as charged. As to counts II and III, the attempted murder of

Whitehill and Stephenson, respectively, the jury found Polson guilty of the lesser-

included offense of assault with intent to inflict serious injury.

On December 9, Polson was sentenced to a term of incarceration not to

exceed fifty-five years.

Polson appeals.

II. Standards of Review.

We review the district court’s denial of Polson’s request for substitute

counsel for an abuse of discretion. See State v. Tejada, 677 N.W.2d 744, 749

(Iowa 2004).

We review challenges to the sufficiency of the evidence presented at trial

for correction of errors at law. State v. Meyers, 799 N.W.2d 132, 138 (Iowa
9

2011). In doing so, we examine the evidence in the light most favorable to the

State to determine if the finding of guilt is supported by substantial evidence in

the record. Id.

As here, when a defendant claims the district court should have granted

his motion for new trial based on a claim the verdict was contrary to the weight of

the evidence, we review for an abuse of discretion. See State v. Nitcher, 720

N.W.2d 547, 559 (Iowa 2006). We do not decide anew the underlying question

of whether the verdict is against the weight of the evidence. State v. Reeves,

670 N.W.2d 199, 203 (Iowa 2003).

Because claims of ineffective assistance stem from a defendant’s

constitutional right to counsel, we review such claims de novo. See State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion.

A. Substitute Counsel.

Polson maintains the district court abused its discretion when it denied his

motion to substitute appointed counsel one business day before trial was

scheduled to start. In his pro se motion for new counsel, Polson claimed his trial

counsel had multiple murder trials he was trying and had “little or no time for

[Polson’s] case,” had not filed for a change of venue, had filed for an intoxication

defense instead of a diminished capacity defense—as Polson wanted, and had

rarely met with Polson. He also claimed counsel “failed to investigate, fail[ed] to

file pretrial motions to preserve evidence, interview witnesses, and to retain

expert witnesses on psychotropic drugs and their effects.”
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While the Sixth Amendment guarantees a defendant the right to counsel, it

does not guarantee “a meaningful relationship between an accused and his

counsel.” Morris v. Slappy, 461 U.S. 1, 19 (1983). Rather, in cases where a

defendant is represented by a court-appointed attorney and requests substitute

counsel, the defendant must present “sufficient cause to justify replacement” to

the court. Tejada, 677 N.W.2d at 749. “Sufficient cause includes ‘a conflict of

interest, irreconcilable conflict, or a complete breakdown in communication

between the attorney and the defendant.’” State v. Lopez, 633 N.W.2d 774, 779

(Iowa 2001) (citation omitted). Additionally, the court must balance “the

defendant’s right to counsel of his choice and the public’s interest in the prompt

and efficient administration of justice.” Id. (citation omitted). “The court should

not permit a defendant to manipulate the right to counsel to delay or disrupt the

trial.” Id. “[T]he court has considerable discretion in ruling on a motion to

substitute counsel made on the eve of trial.” Id.

Here, the court set a hearing on Polson’s pro se motion within a day of

receiving it. At the hearing, the court gave Polson the opportunity to “make any

statements [he] would like.” Many of the statements made by Polson were

general in nature—claiming his attorney “dropped the ball on certain things” and

“a lot of things haven’t gone like he says they were going to.” A number of

Polson’s complaints appeared to be based on disagreement over strategic

decisions. Other complaints—that his attorney had not investigated, filed pretrial

motions, or interviewed witnesses—were just inaccurate. As such, the district

court found, “I find that you may have some disagreements as to some strategy,

but I don’t think that’s a complete breakdown of communication.” We agree.
11

While Polson and his trial counsel were not in complete agreement, there is no

indication there had been a complete breakdown in communication between the

two. Cf. Tejada, 677 N.W.2d at 752 (“As a general matter . . . to prove a total

breakdown in communication, a defendant must put forth evidence of a severe

and pervasive conflict with his attorney or evidence that he had such minimal

contact with the attorney that meaningful communication was not possible.”

(quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002))).

Moreover, trial was scheduled to begin one business-day later, and the

jury panel had already had orientation and completed the jury questionnaire.

Allowing Polson to substitute counsel would have undoubtedly disrupted and

delayed the judicial process. “Trial court discretion is often accorded where,

because of proximity to the trial process, the trial court is in as good or better

position than the appellate court to make a determination in accordance with the

demands of justice. State v. Gartin, 271 N.W.2d 902, 910 (Iowa 1978).

Polson also contends that he did not engage in a meaningful colloquy with

the district court, and he was not provided the opportunity to show sufficient

cause for the substitution of counsel. He maintains the district court should have

made “a proper inquiry” into his concerns, and he compares his facts to those of

Tejada. Polson does not elucidate what a “proper inquiry” entails, but we

understand his claim to be that the district court should have asked him more

specific questions about his complaints. Tejada does not proscribe what the

court’s inquiry must look like; it just requires the court to make one once a

defendant requests substitute counsel. 677 N.W.2d at 750 (“[W]e . . . now

explicitly recognize that there is a duty of inquiry once a defendant requests
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substitute counsel on an account of an alleged breakdown in communication.”).

Additionally, in State v. Lopez, 633 N.W.2d 774, 779–81 (Iowa 2001), our

supreme court was asked to determine if the inquiry the court made after the

defendant requested new counsel “was adequate.” The supreme court noted the

trial court had “inquire[d] of defense counsel as to whether he had adequately

prepared for trial and whether there was any disagreement with the planned

strategy,” and “more important[ly], . . . ask[ed] [the defendant] to explain any

communication problem.” Id. at 780–81. The court found the inquiry was

adequate because the court gave the defendant “ample opportunity to explain

the alleged conflict between the defense counsel and [the defendant]—an

explanation [the defendant] utterly failed to give.” Id. at 781.

Because Polson was given the opportunity to have a meaningful colloquy

with the court about his request for substitute counsel, and because he did not

establish sufficient cause to justify the replacement of counsel on the eve of trial,

the district court did not abuse its discretion in denying his request.

B. Sufficiency of Evidence.

Polson maintains there was not substantial evidence in the record to

support his convictions stemming from the shootings because the State had not

shown Polson has the specific intent to commit the crimes of attempted murder,

assault with intent to inflict serious injury, and willful injury causing serious injury.

In considering the evidence in the light most favorable to the State, see

Meyers, 799 N.W.2d at 138, there was plenty of evidence to overcome Polson’s

intoxication defense. The defense requires “a high level of intoxication to support

a finding of no specific intent.” State v. Guerrero Cordero, 861 N.W.2d 253, 259
13

(Iowa 2015), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880

N.W.2d 699, 708 (Iowa 2016).

Intoxication is a matter of degree. . . . The law does not specify the
degree or the percentage of intoxication essential to sustain this
defense, but it does require that it be such as to render the accused
incapable of the requisite specific intent. He may be under the
influence of intoxicating liquor, but he will not be absolved of
criminal responsibility if he still possesses mental capacity to
entertain the intent. Mere intoxication is not sufficient. Neither is it
enough that he had been drinking liquor.

State v. Wilson, 11 N.W.2d 737, 745–46 (Iowa 1943). While Polson claimed he

was so intoxicated as to be unable to form specific intent, four of the State’s

witnesses—a number of whom had special training in detecting when someone

is under the influence—testified that they did not believe Polson was under the

influence at all on November 17, let alone to the extent that he was claiming.

Because Polson was not so incapacitated as to be unable to form specific

intent, we consider “the facts and circumstances surround [his actions], as well

any reasonable inferences to be drawn from those facts and circumstances, . . .

to ascertain the defendant’s intent.” State v. Schminkey, 597 N.W.2d 785, 789

(Iowa 1999). Additionally, we note that intent “is seldom capable of being

established with direct evidence.” Id. “[W]e are guided by the maxim that

defendants will ordinarily be viewed as intending the natural and probable

consequences that ordinarily follows from their voluntary acts.” State v. Bedard,

668 N.W.2d 598, 601 (Iowa 2003). Here, Polson drove his vehicle up to the

home of Mark Mitchell, walked up toward Mitchell’s home, and then shot Mitchell

in the stomach before fleeing. Next, he drove up to Zachary Whitehill’s stopped

vehicle and shot Whitehill twice—once in the neck and once in the back, before
14

again fleeing and leaving Whitehill behind. Finally, Polson drove up to the curb

of the home Matthew Stepheson was stopped at, waited for Stephenson to exit

the home, and then shot at him four or five times from his vehicle. As

Stephenson used his vehicle for cover and attempted to get back into the home,

Polson continued to fire shots at him. Bringing a gun, using the weapon to shoot

at three separate individuals multiple times—making contact with two—and

fleeing the scene without regard for the victims constitutes substantial evidence

Polson had the specific intent necessary for attempted murder, assault with intent

to inflict serious injury, and willful injury causing serious injury. Cf. State v.

Hamilton, 309 N.W.2d 471, 480 (Iowa 1981) (“[T]he general rule is that one who

arms himself with the express purpose of shooting another cannot ordinarily

claim the elements of first degree murder[, which includes specific intent] are

lacking.”).

C. Weight of the Evidence.

Similarly, Polson claims the district court abused its discretion in denying

his motion for new trial; he maintains the weight of the evidence is contrary to the

verdicts that required he form a specific intent. “A verdict is contrary to the

weight of the evidence where ‘a greater amount of credible evidence supports

one side of an issue or cause than the other.’” State v. Shanahan, 712 N.W.2d

121, 135 (Iowa 2006) (citation omitted).

Polson offered his self-serving testimony that he had no memory of the

events surrounding the shootings—“coming to” right as officers surrounded him

and ordered him out of his vehicle—but there was otherwise very little

corroborating evidence. Bailey testified that she had used methamphetamine
15

with Polson approximately seven or eight hours before the shootings, but other

testimony showed Polson typically “came down” from the influence of the

methamphetamine within hours of taking it. Additionally, on cross-examination, it

became clear Bailey originally told officers she and Polson had used marijuana

the night before the shootings; she did not mention the use of methamphetamine

until one or two months before trial—approximately nine months after the

incidents occurred. Both Bailey and Polson’s ex-girlfriend testified Polson was

an erratic and unsafe driver when he was under the influence of

methamphetamine, but there was no indication that he was driving in such a

manner on the morning of November 17. Additionally, four of the State’s

witnesses testified that Polson’s demeanor was not consistent with someone

under the influence of methamphetamine. The jury was able to hear a phone call

between Polson and his ex-girlfriend two days after the shootings, and in it, he

did not tell her that he had no memory of the events, as he claimed at trial.

Rather he stated that it was all a “big misunderstanding,” that he had been pulled

over while simply driving to work, and that he could “beat this shit.” When asked

at trial to explain the conversation, Polson testified he did not remember the

phone call because it took him three or four days to come down from the drugs,

and his memory during that time period was “splotchy.”

Polson implied that the methamphetamine he took on November 16 was

cut with another substance that caused him to have an atypical reaction to the

drug. Bailey testified that the methamphetamine looked normal and that she did

not have an atypical reaction. Polson then testified they had finished another

bag of methamphetamine and he had started on a new purchase, which was why
16

he was the only one to have the reaction. Even if the jury believed Polson

ingested methamphetamine that had been somehow tampered with, Polson’s

claim that he was too intoxicated to form specific intent is belied by his ability to

drive, shoot with accuracy, and make the decision to dispose of the gun after an

officer began following him.

It is the province of the jury to determine the credibility of witnesses and

weigh the evidence accordingly. See id. (“The function of the jury is to weigh the

evidence and ‘place credibility where it belongs.’” (citation omitted)). Here, the

jury found the evidence countering Polson’s defense of intoxication more credible

than the evidence supporting it, and we cannot say the district court abused its

discretion in letting the jury’s verdict stand.

D. Ineffective Assistance.

Polson maintains he received ineffective assistance from trial counsel.

Specifically, he maintains trial counsel should have retained an expert witness to

testify about the effects of psychotropic drugs and counsel should have moved to

sever Polson’s shooting charges from his drug charges.

Claims of ineffective assistance are not bound by the traditional error

preservation rules, but we rarely address such claims on direct appeal. See

State v. Ondayog, 722 N.W.2d 778, 784, 786 (Iowa 2006). Here, both the State

and Polson maintain that the record is adequate for us to decide the claims on

direct appeal. We disagree. While the evidence Polson was the shooter was

overwhelming, there was some question as to whether Polson was able to form

the specific intent necessary to be convicted of the charges that resulted from the

shootings. Based on the record before us, we do not know if there was an expert
17

that could offer the type of testimony that Polson now contends was necessary—

testimony that would have buttressed his assertions about his lack of memory

and ability to form intent several hours after using “cut” methamphetamine. The

State maintains we should not be concerned by the lack of expert and what the

testimony may have been because it was just a “strategic decision” by counsel,

which is insulated from the ineffective-assistance analysis. But “we cannot

automatically assume every alleged misstep was a reasonable strategy simply

because some lawyer, somewhere, somehow, under some circumstances at

some time would have done such a thing.” Id. at 787.

Similarly, as to Polson’s claim that his trial should have been severed, we

believe the record is equally unclear. There are obvious reasons why a

reasonably competent attorney would consider moving to sever the charges;

Polson did not contest the drug charges—other than to testify his father was not

part of a conspiracy to sell the drugs—and the evidence of the approximately

twenty pounds of marijuana in Polson’s home may have led the jury to decide

Polson was untrustworthy or a just a “bad guy.” See State v. Blair, 362 N.W.2d

509, 511 (Iowa 1985) (“The trial court is to order severance where the defendant

shows his or her ‘interest in receiving a fair trial uninfluenced by the prejudicial

effects which could result from a joint trial [are] outweighed [by] the State’s

interest in judicial economy.’” (alterations in original) (citation omitted)); see also

Iowa R. Evid. 5.404 (excluding evidence of a defendant’s crime, wrong, or other

act to prove a person’s character). Again, the State claims counsel may have

chosen not to request that the trial be severed in order to emphasize Polson’s

drug problem, thereby supporting his intoxication defense. We note that the drug
18

charges involved marijuana and Polson’s intoxication defense relied on his use of

methamphetamine. Additionally, the fact that counsel may have made a

strategic decision is not sufficient to defeat a claim of ineffective assistance. See

Ondayog, 722 N.W.2d at 786–87. The State also argues Polson cannot

establish he was prejudiced even if counsel should have filed a motion to have

the charges severed into two trials because “the evidence was strong.” But

whether the jury believed Polson’s intoxication defense was based almost

entirely on whether the jury found Polson to be a credible witness, and we cannot

say whether the uncontested drug charges played a role in shaping the jury’s

decision about Polson’s credibility.

These issues are preserved for possible future postconviction proceedings

where the record can be more fully developed.

For all the foregoing reasons, we affirm.

AFFIRMED.