This opinion will be unpublished and

may not be cited except as provided by

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






Keith Allen Lind, petitioner,





State of Minnesota,



Filed July 16, 2002


Lansing, Judge


Carlton County District Court

File No. K196564


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Ave. SE, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Suite 500, 525 Park Ave., St. Paul, MN  55103; and


Marvin Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN  55718 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            In a combined direct and postconviction appeal, Keith Lind contends that he is entitled to a new trial on two counts of first-degree criminal sexual conduct because the district court erred in its evidentiary rulings and abused its discretion in denying postconviction relief on claims of recantation, newly discovered medical evidence, and ineffective assistance of counsel.  We conclude that the district court’s evidentiary rulings were within its discretion and that Lind is not entitled to a new trial on the issues raised at the postconviction hearing.  The issues raised in Lind’s pro se brief do not warrant relief, and we affirm.



            A jury found Keith Lind guilty of two counts of first-degree criminal sexual conduct.  At trial the state presented the testimony of Lind’s niece, T.L., who testified that Lind had committed multiple acts of penetration on her between January 1994, when she was nine years old, and the end of summer 1995, when she was eleven.  T.L. spent a great deal of time in Lind’s home because of family problems in T.L.’s home.  According to T.L.’s testimony, most of the sexual conduct occurred in Lind’s home at night, when others were asleep.  Some of the sexual conduct occurred at T.L.’s house when her mother was at work.

            T.L. testified that Lind took her to social services after she told him about something bad that had happened to her that she had never told anyone before.  Although she told the interviewer about other traumatic incidents, she did not tell the interviewer that Lind had sexually abused her.  The court placed T.L. first in temporary shelter and then in a foster home operated by another uncle and his girlfriend.  Lind demonstrated an extreme reaction to being told that T.L. would not be placed in his home.  As a result of the hostility and aggression Lind directed to the shelter staff and social-service providers, he was prohibited from seeing T.L.

While in foster care, T.L. began therapy with a psychologist.  During the course of her therapy, T.L. first told her foster mother about Lind’s sexual abuse and then described Lind’s sexual abuse to the psychologist.  A police detective interviewed her, and the interview was videotaped.

            The state presented the videotaped interview to the jury during the testimony of the police detective.  The detective testified that he had received specialized training for assessing credibility and testified to the factors that he used in making credibility assessments.  A social worker testified about the “grooming process” that sex offenders use to prepare their child victims and about the typical behavioral and emotional characteristics of children who have been sexually abused.  T.L.’s psychologist and other social workers also testified.  Lind testified in his own defense and presented testimony from a number of family members who contradicted T.L.’s statements.

            The jury found Lind guilty of the two submitted counts.  The state dismissed a third count at the close of its case.  Lind filed a notice of appeal of his conviction.

While the direct appeal was pending, Lind’s younger brother produced a handwritten letter purportedly written by T.L. that said it was not Lind, but Lind’s son, who abused T.L.  Lind also learned of a medical examination of T.L. conducted in August 1995, shortly after she had been placed in foster care.  The examining physician reported that the examination was normal and could neither prove nor disprove the possibility of sexual abuse.

Following these developments, Lind filed a postconviction relief petition requesting a new trial because of the alleged recantation, the newly discovered medical examination, and his attorney’s failure to object to the social worker’s testimony about the “grooming process” typically used by child abusers.

This court granted Lind’s motion to dismiss the pending direct appeal and remanded for postconviction proceedings.  The district court conducted an evidentiary hearing on the postconviction petition and issued an order denying relief.

In this combined appeal from conviction and the denial of postconviction relief, Lind challenges the district court’s rulings (1) restricting evidence of T.L.’s prior allegations of sexual abuse by other adults, (2) permitting the detective’s testimony on credibility determination, and (3) denying postconviction relief.  Lind also submitted a pro se brief raising issues relating to his Sixth Amendment rights, witness credibility, and prosecutorial misconduct.


            Evidentiary rulings are an area of law in which the district court is accorded a significant amount of discretion.  State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999).  An appellate court will not lightly overturn a district court’s evidentiary ruling.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court abuses its discretion on an evidentiary ruling, a new trial is not warranted if the error is harmless beyond a reasonable doubt, that is, if the verdict is surely unattributable to the error.  State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997).

            The district court’s determination on postconviction relief is also subject to an abuse-of-discretion standard.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion.  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995); see Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (recognizing factual findings of postconviction court will not be disturbed if supported by sufficient evidence).


            Before trial, Lind moved to present evidence that T.L. had made prior allegations of sexual abuse by three other adults, one of whom was her grandfather.  The state objected on the grounds that the evidence was irrelevant, confusing, and barred by the rape-shield law.  The district court ruled the evidence inadmissible because, among other reasons, no evidence demonstrated that the allegations were false.  A reference to the prior abuse came into evidence through an audiotape.  Several of the state’s witnesses, including T.L.’s psychologist, referred to the past abuse.  T.L. referred to the traumatic event and defense counsel also referred to it in his opening statement.  Defense witnesses also testified that T.L. had experienced abuse by people other than Lind.  The court allowed the defense to make limited reference to the prior abuse in its closing argument.

            Minnesota’s rape-shield law severely limits the admission of evidence of a complainant’s previous sexual conduct.  Minn. Stat. § 609.347, subd. 3 (2000).  In a prosecution for criminal sexual conduct, evidence of the complainant’s previous sexual conduct is not admitted except by court order.  State v. Morris, 606 N.W.2d 430, 435 (Minn. 2000).  Lind acknowledges that the evidence is not within an exception to the rape-shield law, but argues that it is constitutionally required under the Due Process and Confrontation Clauses to present a meaningful defense.

            When a constitutional right is at issue, a defendant may present a defense that includes evidence of a victim’s past sexual conduct.  State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982).  This right is not automatic, however; the probative value of the evidence must still be balanced against the prejudicial effect.  State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  To the degree that the state attempted to show that T.L. evidenced behavior of a sexually abused child, the fact that T.L. had been sexually abused by others is relevant.  But the record establishes that the fact of prior abuse was admitted through the testimony of a number of witnesses.  Lind essentially presented his defense that sexual or physical abuse by others caused T.L.’s behavioral and psychological problems.

            Any other information on T.L.’s prior sexual assault allegations was not relevant.  As the district court found, no evidence demonstrated that T.L. had fabricated the prior allegations.  If a defendant seeks to admit evidence of prior allegations of abuse to show that the charge against him is fabricated, the defendant must be able to show that the prior allegations are false.  Id. at 751.


            The decision to admit expert testimony generally rests within the wide discretion of the district court.  State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987); State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).  Minnesota case law supports the admission of expert testimony about the behavioral characteristics of a child that are consistent with sexual abuse.  Myers, 359 N.W.2d at 609-10 (ruling that expert testimony on behavioral traits and characteristics typical of a sexually abused child exhibited by a particular victim are admissible).

Lind specifically challenged T.L.’s credibility.  In his opening statement, Lind’s attorney emphasized that T.L. had a history of lying.  The district court did not err in permitting the detective to explain the basis on which he made credibility determinations, particularly because his testimony did not specifically relate the factors to T.L. except when he indicated that T.L.’s statements provided content, which is one of the credibility factors.  But the detective did not express a personal opinion on T.L.’s credibility, and offered no opinion based on the application of the factors.

            Although we conclude that the evidence was not improper, we further conclude that the detective’s testimony on credibility factors did not affect the verdict.  The detective’s reference to the factors was brief, the observations were general rather than particularly related to T.L., and he testified to no conclusion on T.L.’s credibility.  Except for the “content” factor, the testimony did not confirm that T.L. satisfied these factors and the district court instructed the jury on credibility, saying that “[t]here are no hard and fast rules to guide you in this respect.”

Further, the evidence against Lind was strong.  T.L. testified to the specific abuse; her description was consistent with her statement to the detective.  A friend of T.L.’s and T.L.’s step-sister testified that she told them about the abuse when it was happening.  Lind demonstrated an extreme reaction when told that T.L. would be placed with a family other than his family.  He responded hostilely and aggressively to both the shelter staff and the social-service providers.  The reaction resulted in their prohibiting him from seeing T.L.  The district court did not commit reversible error by permitting the detective’s testimony on credibility factors.


            Lind appeals the district court’s determination on three claims raised in his postconviction petition.  He contends that he is entitled to a new trial because (a) T.L. recanted her testimony, (b) the state failed to disclose the medical report, and (c) his attorney ineffectively represented him by not objecting to the social worker’s “grooming” testimony.


            Motions for a new trial based on alleged recantations are viewed with disfavor except in extraordinary circumstances.  State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977) (expressing concern that duress may result in purported recantations).  To obtain a new trial based on recantation, a defendant must show that the alleged recanted testimony was false, that the defendant was surprised by the testimony and unable to counteract it or did not know it was false until after trial, and that the jury might have reached a different conclusion if it had not considered the false testimony.  Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).

            The district court found that T.L. did not write the letter that was presented as recantation, and the evidence supports the district court’s finding.  T.L. denied writing the letter, the letter contains 14 different sets of fingerprints, none of which belong to her, and the testimony about the way the letter was obtained and when it was brought forward suggests falsification.  The record fails to establish the threshold requirement that the testimony T.L. offered at trial was false.


            The district court properly found that the newly discovered medical examination that took place shortly after the time the abuse occurred did not require a new trial.  The doctor who conducted the examination determined in her report that “[t]he normal exam neither proves [n]or disproves the possibility of sexual abuse.”  In response to a defense question, T.L. briefly referred to a medical examination that took place after she was placed in foster care.  But except for the reference, which both the defense and the state heard, the record is undisputed that the prosecutor had no knowledge of the examination until after the trial.  Lind has failed to show prosecutorial misconduct in not providing the report to the defense.  Most significantly, this inconclusive evidence did not have exculpatory or impeachment value, and the district court properly denied relief on this ground.


            A defendant claiming ineffective assistance of counsel must show that his attorney’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.”  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)).  “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation and citation omitted).  There is a strong presumption that counsel’s performance “falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation and citation omitted).

            Lind contends that his attorney provided ineffective assistance when he chose not to object to the testimony on “grooming habits” of child abusers.  At the postconviction hearing, Lind’s attorney testified that he did not object because he believed it was more advantageous to cross-examine this expert and highlight the fact that Lind did not fit any of the descriptions of child abusers the expert was providing.  Trial tactics are not to be confused with competence.  State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990).  The district court did not abuse its discretion when it found that Lind’s attorney provided effective assistance of counsel.


            In a supplemental pro se brief, Lind raises three additional issues.  We have carefully reviewed these issues and conclude that they do not warrant relief.

            First, Lind contends that his Sixth Amendment rights were violated by the district court’s failure to allow expert testimony to rebut the state’s witnesses.  The cases supplied by Lind do not support his argument.  Furthermore, Lind did not call an expert witness in his defense or seek to present expert testimony.

            Second, Lind contends that due process requires the government to disclose material evidence affecting the credibility of government witnesses.  We agree with this assertion, but Lind does not apply it to a specific failure of the prosecution.  To the extent it applies to T.L.’s testimony or the purported recantation, we have rejected these arguments as a basis for a new trial.

            Finally, Lind contends that the prosecutor was related to one of the state’s witnesses and Lind’s right to due process was violated by a conspiracy between the prosecutor and the witness, who Lind alleges was the prosecutor’s niece.  Lind has provided no factual basis for his claim that one of the witnesses was the prosecutor’s niece, and the state denies the factual accuracy of the allegation.  Lind did not raise this issue in the district court.  In any event, no per se rule exists that would preclude the testimony of the witness because she was a niece of the prosecutor, and Lind has provided no evidence of conspiracy or any basis on which the evidence should be disallowed or that it was prejudicial.

            The district court did not err in its evidentiary rulings or its denial of postconviction relief, and we find no basis for reversal in Lind’s pro se supplemental brief.