This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Christopher Allen Schwark, petitioner,


State of Minnesota,


Filed November 20, 2001


Stoneburner, Judge


Hennepin County District Court

File No. 99081132


Barry V. Voss, Timothy Hickman, Voss & Hickman, P.A., Suite 2355, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Hanson, Presiding Judge, Toussaint, Chief Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N


            Appellant Christopher Allen Schwark appeals from a jury verdict finding him guilty of criminal sexual conduct in the third degree and the district court’s denial of his petition for postconviction relief.  Because the evidence is sufficient to sustain the jury verdict, and the district court did not abuse its discretion when it excluded portions of a witness’s testimony and denied a hearing on Schwark’s allegations of ineffective assistance of counsel, we affirm.


            Schwark, J.C. and B.S. drank alcohol and visited for most of the night of August 13, 1999 at the apartment shared by J.C. and B.S.  At approximately 4:00 a.m., J.C. went to bed in her own bedroom with the door closed.  Schwark went to bed in B.S.’s bedroom shortly thereafter and B.S. went to sleep in the living room. 

According to J.C.’s testimony, the next thing she remembers after going to bed is waking up with Schwark on top of her trying to have sexual intercourse with her.  She knew Schwark’s penis was in her vagina because she could feel it.  She pushed Schwark off of her and told him to get out.  J.C. then told B.S. what had happened. 

According to the testimony of B.S., Schwark came into the living room on the morning of August 14, spoke with her briefly and went down the hall towards the bedrooms and bathroom.  A few minutes later B.S. went down the hallway and noticed that Schwark was not in B.S.’s bedroom or the bathroom.  B.S. went back to the living room and briefly slept, then got up and saw J.C. standing in the hallway, very disturbed, sobbing, legs shaking and pulling her T-shirt down to her knees.  J.C. told B.S. that Schwark had raped her.  B.S. told Schwark to leave and called the police.     

According to Schwark’s testimony, he “passed out,” in the early morning hours of August 14.  He remembers waking up later in the morning, fully clothed, next to J.C., with her leg and arm draped over him.  He asked what time it was and “[p]robably” got up and went into the living room, spoke briefly with B.S. and left. 

Officer Grabosky testified that he went to the apartment in response to the call from B.S.  He found J.C. crying and both J.C. and B.S. were very upset.  J.C. told the officer she had been sexually assaulted, that she “had woken up with a penis inside her.”  Schwark was arrested and was subsequently charged with third-degree criminal sexual conduct.  Minn. Stat. § 609.344, subds. 1(d), 2; § 609.101, subd. 2; § 609.109, subd. 7 (1998).

Diane Bakdash, a sexual assault resource nurse, examined J.C. on the date of the incident and found no physical evidence of penetration and no biological material from Schwark in J.C.’s vagina.  At trial, the parties stipulated that “no biological material of [Schwark] was found inside the person of [J.C.].”  Bakdash testified that a lack of biological material may signify:  (1) no ejaculation, (2) no pre-ejaculation, (3) no penetration, or (4) no intercourse.  Evidence of biological material from another person  found in J.C.’s vagina, evidence that J.C. complained of tenderness in her vagina and evidence that Bakdash did not find any redness in J.C.’s vagina was not admitted at trial.

            A jury found Schwark guilty of third-degree criminal sexual conduct.  This appeal followed the district court’s denial of Schwark’s petition for postconviction relief.


            Schwark argues that (1) the evidence presented at trial is insufficient to support the verdict and (2) the district court abused its discretion by (a) excluding portions of Bakdash’s testimony, and (b) dismissing, without a hearing, Schwark’s postconviction petition asserting ineffective assistance of counsel.


            In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted).  The reviewing court 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Criminal sexual conduct in the third degree is defined as “[a] person who engages in sexual penetration with another person” if “the actor knows or has reason to know that the complainant is * * * physically helpless.”  Minn. Stat. § 609.344, subd. 1(d) (1998).  “Sexual penetration” includes “any intrusion however slight into the genital or anal openings.”  Minn. Stat. § 609.341, subd. 12(2) (1998).  The definition of  “physically helpless” includes a person who is asleep.  Minn. Stat. § 609.341, subd. 9 (1998).

            In a prosecution for criminal sexual conduct in the third degree, the testimony of a victim need not be corroborated.  Minn. Stat. § 609.347, subd. 1 (1998).  The jury has the exclusive function of weighing the witness’s credibility at trial.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  

            Schwark contends that the evidence presented at trial is insufficient to support his conviction of third-degree criminal sexual conduct because (1) J.C. did not see Schwark’s penis enter her and (2) no biological material from him was found in J.C. 

J.C. testified that on the day of the incident, she woke up with Schwark on top of her trying to have sexual intercourse with her and that she knew Schwark’s penis was inside of her because of the pain and friction in her vagina.  She could see his hands, so she knew he was not penetrating her with his hands.

            J.C.’s testimony was corroborated by B.S. who testified that on the morning of August 14, 1999, she discovered J.C. in the hallway of their apartment shaking with her T-shirt pulled down to her knees and that J.C. told her that Schwark had raped her. Officer Grabosky testified that a distressed J.C. told him twice, during his interview with her on the morning of the event, that she had been sexually assaulted and had “woken up with a penis inside her.”  A reasonable jury could conclude, based on the evidence presented at trial, that Schwark penetrated J.C. while she was asleep thereby committing third-degree criminal sexual conduct.  See Moore, 438 N.W.2d at 108 (standard of review); Alton, 432 N.W.2d at 756 (standard of review).


            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court has erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).  But if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, the error is prejudicial.  Id. 

            Schwark contends that the district court abused its discretion by excluding evidence of the lack of redness in J.C.’s vagina and evidence that any tenderness in J.C.’s vagina was due to a “previous engagement.”  The district court did not specifically address Schwark’s request that he be permitted to question Bakdash about the lack of redness in J.C.’s vagina.  But J.C. did not testify that the incident resulted in redness or other physical indicia of penetration.  Schwark’s attorney, in closing arguments, reminded the jury that they had “not seen any physical evidence throughout th[e] entire trial.”  Evidence of lack of redness in J.C.’s vagina does not give rise to a reasonable possibility that the verdict would have been different had the evidence been admitted because J.C.’s testimony about penetration was consistent with her prior statements and corroborated by her immediate reports of penetration.  Even if the district court erred by excluding Bakdash’s testimony about lack of redness, the error was harmless beyond a reasonable doubt.

            The district court excluded evidence that tenderness in J.C.’s vagina may have been the result of previous sexual conduct.  In a prosecution for criminal sexual conduct in the third degree, “evidence of the victim’s previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury” unless the “probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature” and consent is a defense or the evidence is being used “to show the source of the semen, pregnancy, or disease.”  Minn. Stat. § 609.347, subd. 3 (1998); Minn. R. Evid. 412.  Here, consent of the victim was not a defense in this case; the prosecution’s case did not include evidence of pregnancy or disease and the prosecution’s case did not include the presence of semen in J.C.  The court created what it termed “protection for the defense,” by ruling that if the prosecution entered evidence of J.C.’s claim of vaginal tenderness, Schwark could introduce evidence of intercourse that J.C. engaged in prior to the incident with Schwark.  The prosecutor did not introduce evidence of tenderness and the district court properly excluded evidence of J.C.’s previous sexual conduct.


            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id. (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted). 

            Schwark contends that the district court erred by summarily dismissing Schwark’s petition for postconviction relief.  On appeal, Schwark alleges a hearing is necessary to show that his counsel was ineffective by (1) failing to adequately advise him that a conviction would result in prison time and (2) failing to obtain a jury instruction with regard to intoxication. 

            In order to prevail on a claim for ineffective assistance of counsel, a

[d]efendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ 


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

            In Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996), the court noted that:


An evidentiary hearing upon a petition for postconviction relief is not required unless [an appellant] alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief.


An evidentiary hearing is not required when “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat.          § 590.04, subd. 1 (2000).

Schwark relies on Glover v. United States, for the proposition that an error “with regard to sentencing can be a basis for an ineffective assistance of counsel claim” and that “an error with regard to ‘any actual jail time has Sixth Amendment significance.’”  531 U.S. 198, 203, 121 S. Ct. 696, 700 (2001).  Glover did not specifically address a claim of ineffective assistance of counsel and does not support Schwark’s argument.  Schwark clearly stated on the record that he discussed the pros and cons of the prosecution’s plea offer with his counsel and voluntarily rejected the offer.  The plea offer involved a prison sentence of twenty-four months, making Schwark’s claim that he did not know conviction would result in prison time incredible.  We conclude that the district court did not abuse its discretion in denying a postconviction hearing or postconviction relief based on failure to advise him about the consequences of rejecting the plea offer.

            In his petition for a postconviction hearing, Schwark argued that his “trial attorney failed to adequately investigate, prepare and present evidence at [his] trial.”  On appeal, Schwark does not pursue that argument and asserts for the first time that a postconviction hearing is necessary to determine whether Schwark has a valid claim for ineffective assistance of counsel because the record fails to disclose whether Schwark’s trial counsel requested an intoxication instruction at trial.  The record, however, discloses that Schwark’s counsel sought the instruction prior to closing arguments.  Schwark’s argument is untimely and without merit.