may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Jeffrey Lynn Porter,
Faribault County District Court
File No. K69738
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Brian Roverud, Faribault County Attorney, 125 North Main, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
Jeffrey Lynn Porter, MCF-Willow River/Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
In this appeal from an order denying postconviction relief from a first-degree criminal sexual conduct conviction, appellant Jeffrey Porter argues that (1) trial counsel was ineffective in failing to call three witnesses to contradict the victim’s testimony; (2) appellate counsel was ineffective in failing to raise the ineffective assistance of trial counsel claim and in failing to object to an alleged mischaracterization by the state regarding the credibility of Spreigl evidence; and (3) the district court erred in denying postconviction relief without granting Porter an evidentiary hearing. We affirm.
Porter met the victim, A.M.H., through another juvenile, A.J.H. Porter befriended A.M.H., had A.M.H. work with him at his job, took A.M.H. fishing and camping, and allowed A.M.H. to stay overnight at his house almost every night during the summer of 1996. When A.M.H. stayed with Porter, Porter supplied A.M.H. with marijuana and alcohol.
In December 1996, A.M.H. entered an inpatient substance abuse treatment program. While in treatment, A.M.H. disclosed that Porter had sexually assaulted him repeatedly from June to November 1996. In January 1997, police interviewed A.M.H. at the treatment center, and he reported multiple occurrences of oral and anal sex with Porter. After being interviewed by police, Porter was arrested and charged. A few months later, A.J.H. disclosed that Porter sexually abused him in 1995 and 1996. The district court granted the state’s motion to admit evidence of Porter’s sexual abuse of A.J.H. as Spreigl evidence.
At trial, A.M.H. testified that when he stayed with Porter, he and Porter slept together on a mattress in the living room. The house’s three bedrooms were occupied by Porter’s children and A.J.H. and his father. A.M.H. testified that about two weeks after he began staying with Porter, Porter started fondling A.M.H. by placing his hands on and rubbing A.M.H.’s genital area and inner thighs. According to A.M.H., after another two weeks, Porter began performing oral sex on A.M.H. every night. A.M.H. also testified that Porter repeatedly sexually penetrated him anally and that he once performed oral sex on Porter at Porter’s request.
A.J.H. testified to a pattern of sexual abuse by Porter similar to that suffered by A.M.H. A.J.H. and his father began living with Porter during the spring or summer of 1995 when A.J.H. was 12 years old. Porter befriended A.J.H., had A.J.H. help him at his job, and took A.J.H. fishing and camping. A.J.H. testified that Porter supplied him with alcohol and that they used marijuana together. Although A.J.H. and his father had a bedroom in Porter’s house, A.J.H. testified that he slept with Porter every few nights. A.J.H. testified that from the summer of 1995 until the summer of 1996, Porter sexually penetrated him anally about once a week or more; about half the time, A.J.H. performed anal sex on Porter; and Porter sometimes performed oral sex on A.J.H., but not as frequently. According to A.J.H., there was no sexual contact between him and Porter when A.M.H. stayed with Porter, but it resumed on about a weekly basis after A.M.H. entered treatment.
A jury convicted Porter of one count each of first-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(g) (sexual penetration of a child under age 16 with whom defendant had a significant relationship) (1996) and 609.342, subd. 1(h) (multiple acts of sexual penetration over an extended period of time of a child under age 16 with whom defendant had a significant relationship) (1996). Porter filed a direct appeal, claiming insufficiency of the evidence, erroneous admission of his statement to police and the Spreigl evidence, and prosecutorial misconduct. This court affirmed. State v. Porter, No. C5-97-1895, 1998 WL 551936 (Minn. App. Sept. 1, 1998), review denied (Minn. Oct. 29, 1998).
Porter then filed a petition for postconviction relief, claiming ineffective assistance of trial and appellate counsel and denial of due process and equal protection. The district court denied the petition summarily without making any findings on Porter’s claims. Following Porter’s request for findings of fact and conclusions of law, the district court issued an order explaining its decision as follows:
3. When a direct appeal has been taken, all matters raised therein or all claims known but not raised will not be considered on a subsequent petition for post-conviction relief.
4. The claim of ineffective trial counsel was known at the time of direct appeal. There is no indication that appellate counsel’s representation fell below an objective standard of reasonableness. [Porter] failed to allege facts which, if proved would tend to show the outcome of the appeal might have been different.
This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court’s findings and will affirm the postconviction court’s decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).
A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case.
State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999) (quotation omitted).
Porter asserts that his trial counsel was ineffective in failing to ask for a continuance based on the district court’s failure to disclose confidential information about A.M.H. until shortly before trial and in failing to request further hearings on the “clear and convincing” standard governing the admission of Spreigl evidence. These issues were raised as evidentiary and constitutional claims on direct appeal. This court specifically concluded that the clear and convincing standard had been met and that Porter was not denied a fair trial because he was able to make full use of the confidential information during cross-examination of A.M.H. State v. Porter, 1998 WL 551936, at *3-5 (Minn. App. Sept. 1, 1998), review denied (Minn. Oct. 29, 1998). When a defendant has already had a direct appeal, he is barred from seeking postconviction review of all matters raised in the appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Porter cannot avoid the Knaffla rule by recasting evidentiary and constitutional issues decided on direct appeal as an ineffective assistance of counsel claim. Black v. State, 560 N.W.2d 83, 85-86 (Minn. 1997).
Porter also asserts that his trial counsel was ineffective in failing to call three witnesses to contradict the victim’s testimony and in failing to have the Spreigl witness medically examined to determine whether he had been sexually abused. The Knaffla rule applies not only to issues raised on direct appeal but also to issues that were known or should have been known at the time of direct appeal. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998), cert. denied, 524 U.S. 942, 118 S. Ct. 2351 (1998).
One exception to the Knaffla rule exists for ineffective assistance of counsel claims when an evidentiary hearing is necessary to develop additional facts to explain the attorney’s decisions. Black v. State, 560 N.W.2d at 85 n.1. A postconviction court is not required to hold an evidentiary hearing on a petition for postconviction relief unless the petitioner alleges facts that, “if proved by a fair preponderance of the evidence, would entitle [the petitioner] to the requested relief.” Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted).
To prevail on a claim of ineffective assistance of counsel, [defendant] must affirmatively show that his attorney’s representation fell below an objective standard of reasonableness and so prejudiced him that there is a reasonable probability that, but for counsel’s errors, the trial outcome would have been different.
State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999) (citation omitted), review denied (Minn. Mar. 14, 2000), cert. denied, 121 S. Ct. 196 (2000).
Porter argues that his trial counsel was ineffective in failing to call three witnesses, all of whom visited Porter’s house frequently and two of whom had stayed overnight there. They would have testified that they never observed inappropriate sexual behavior by Porter or heard any rumors to that effect, never saw A.M.H. or A.J.H. under the influence of drugs or alcohol, and never saw Porter provide any marijuana or alcohol to A.M.H. or A.J.H. One of the witnesses also would have testified that she was present during an interview by an investigator when A.J.H. denied being abused.
When determining whether counsel’s representation fell below an objective standard of reasonableness,
[a] strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance. Particular deference is given to the decisions of counsel regarding trial strategy.
State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted). “What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel.” Doppler, 590 N.W.2d 627, 633 (Minn. 1999).
Trial counsel called other witnesses to testify on Porter’s behalf. Gerald Kabe, an investigator for the state public defense board, testified that when he interviewed A.J.H., A.J.H. repeatedly denied being abused by Porter. Any additional testimony on this point would have been merely cumulative. Two witnesses testified as to Porter’s good character. Porter’s employer testified that Porter was a dependable worker with a good work ethic, that the interaction she observed between Porter and A.M.H. was appropriate; and that she never observed either one under the influence of drugs or alcohol. A special agent for the FBI testified that Porter volunteered to him information about drug activity in outstate Minnesota between 1991 and 1997 and that Porter “had a desire to eliminate wild marijuana and identify drug users.”
The facts alleged by Porter are insufficient to show that trial counsel’s decision on what witnesses to call to testify on Porter’s behalf constituted ineffective assistance of counsel. Moreover, even if trial counsel erred in failing to call the three witnesses, Porter must also show that the error was prejudicial. The testimony of the three witnesses was not significantly probative because child abuse crimes typically occur when no witnesses are present. See State v. Goldenstein, 505 N.W.2d 332, 344 n.11 (Minn. App. 1993) (“Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim.”), review denied (Minn. Oct. 19, 1993). Trial counsel called other witnesses who testified as to Porter’s good character. Under these circumstances, there is not a reasonable probability that the three additional witnesses would have affected the trial’s outcome.
Regarding Porter’s claim that his trial counsel should have requested a medical examination of A.J.H.,
there is no right of a defendant to compel the victim of sexual abuse, especially a child, to submit to a gynecological examination. We have previously indicated the rules of criminal procedure do not even sanction the deposition of a crime victim, absent extraordinary circumstances, partly because of the possible harassment to the victim.
State v. Holmes, 374 N.W.2d 457, 459 (Minn. App. 1985) (emphasis in original), review denied (Minn. Nov. 26, 1985). The facts alleged by Porter do not demonstrate that if A.J.H. had not been sexually abused, a medical examination would have proved the absence of sexual abuse. We, therefore, cannot conclude either that this is an extraordinary case warranting an adverse medical examination of a child sex-abuse victim or that a reasonable probability exists that a medical examination of A.J.H. would have affected the outcome of the trial.
A second exception to the Knaffla rule exists when the petitioner’s claim is novel or fairness requires further review. Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997). Porter cites no newly discovered evidence or legal authority that supports his argument that the issues of whether the three witnesses should have been called and whether trial counsel should have requested a medical examination of A.J.H. are novel claims. See Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991) (a novel claim means one for which a legal basis was not reasonably available at the time of direct appeal). Porter also argues that he should be allowed to raise these issues in a postconviction proceeding because his appellate counsel failed to do so on direct appeal. The procedure Porter should have followed was to raise these issues on direct appeal in a pro se supplemental brief. See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (when appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims that would detract from other more meritorious issues; a dissatisfied appellant should raise additional claims in a supplemental brief). Having failed to do so, he is not entitled to raise them in a postconviction proceeding.
Because the facts alleged by Porter are insufficient to establish his ineffective assistance of trial counsel claim, his claim that appellate counsel was ineffective in failing to raise the issue of ineffective assistance of trial counsel automatically fails. Sullivan v. State, 585 N.W.2d 782, 784 (Minn. 1998).
Porter also argues that appellate counsel was ineffective in failing to point out that appellate counsel for the state misrepresented the credibility of the Spreigl witness. In Porter’s brief on appeal, defense counsel argued that A.J.H.’s testimony did not constitute clear and convincing evidence that Porter committed the Spreigl offense. In response, appellate counsel for the state described A.J.H.’s statement to police describing the sexual abuse Porter committed against him as “detailed, unequivocal and consistent.” The state’s counsel also described A.J.H.’s trial testimony about the sexual abuse as “unequivocal.” These descriptions fairly characterized A.J.H.’s statement to police and trial testimony, so Porter’s counsel’s failure to object did not constitute ineffective assistance of counsel.
The district court did not err in denying Porter’s petition for postconviction relief without an evidentiary hearing on his ineffective assistance of trial and appellate counsel claims. Porter raised additional issues in his postconviction petition but does not address them in his appellate brief. Those issues, therefore, are deemed waived. Scruggs, 484 N.W.2d at 24 n.1.