This opinion will be unpublished and

may not be cited except as provided by

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







Donald C. Rutledge, petitioner,





State of Minnesota,




Filed August 13, 2002


Halbrooks, Judge


Hennepin County District Court

File No. 97063384



Donald C. Rutledge, #196056, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Donald C. Rutledge challenges the denial of his postconviction petition challenging his 1998 convictions of first-degree criminal sexual conduct, third-degree assault, and terroristic threats.  Appellant asserts that the postconviction court erred in finding that a photo that the victim allegedly posed for is not “new evidence” warranting a new trial.  Appellant also contends that the postconviction court erred in not allowing appellant to present Spreigl evidence to impeach the victim’s credibility.  Finally, appellant attacks the constitutionality of the statutory prohibition against instructing the jury that criminal sexual conduct is a crime easily charged but difficult to disprove.  Because we find the postconviction court did not abuse its discretion in denying appellant’s petition, we affirm. 


            We previously set forth the underlying facts in this case in appellant’s direct appeal:

Appellant Donald Rutledge was charged with assaulting, sexually assaulting, and threatening to kill R.M., a friend of Rutledge with whom he had been drinking over a two-day period.


A cab driver picked up R.M. in front of Rutledge’s apartment building in the early morning hours of July 22, 1997.  R.M.’s upper body was covered with blood, and her left eye was severely swollen.  At the hospital, an examination revealed that R.M. had redness in the genital and rectal areas consistent with sexual assault; swelling of her left eye; a 1.5 cm. cut about the eye; bruises on her breasts, left arm, and chin; and abrasions on her back.  R.M. told the emergency room staff that she had been beaten and sexually abused by a friend who wanted to have a sexual relationship with her.  R.M. identified Rutledge to the police as her assailant.


The emergency room physician who examined R.M., Dr. Clinton, testified that the laceration about R.M.’s left eye required stitches.  He testified that R.M.’s injuries would have required “significant force” to inflict.  When the prosecutor asked Dr. Clinton whether, based on his training as a medical professional, R.M.’s injuries constituted “serious bodily harm,” defense counsel objected, arguing that the witness should not be allowed to give an expert opinion on an issue of fact reserved to the jury.  The trial court ruled that Dr. Clinton could give his medical opinion whether R.M. suffered “serious bodily harm,” and Dr. Clinton testified that she had.


The jury found Rutledge not guilty of first-degree assault and one of the two counts of first-degree criminal sexual conduct.  Rutledge was convicted of the other count of first-degree criminal sexual conduct, third-degree assault, and terroristic threats.  The district court sentenced him to 129 months for first-degree criminal sexual conduct, a one and one-half times upward departure from the presumptive sentence.  The court also gave Rutledge concurrent sentences of a year and a day for both the third-degree assault and the terroristic threats convictions.


State v. Rutledge, No. C5-98-904, 1999 WL 185202, at *1 (Minn. App. Apr. 6, 1999), review denied (Minn. June 16, 1999).  We affirmed appellant’s convictions, but vacated the sentences for third-degree assault and terroristic threats.  Id. at *2.

            Appellant filed a pro se postconviction petition two years later seeking an evidentiary hearing and a new trial.  Appellant argued that a recently discovered photograph of a hand on a woman’s vaginal area proved that any sexual contact between himself and R.M. was consensual, that R.M.’s injuries were not the result of rape but of her own doing, and that R.M. perjured herself on the stand.  Appellant also claimed that a photograph of R.M. already in the record refutes his conviction.  In his supplemental brief to the petition, appellant sought a new trial so that he could impeach R.M. with Spreigl evidence that the trial court previously excluded.

            The postconviction court denied appellant’s petition, finding that the “newly discovered” photograph did not constitute “new evidence” because (1) appellant knew of the photo or could have discovered it before trial, (2) the photo is cumulative, not impeaching, and doubtful, and (3) the photo would probably not produce an acquittal or more favorable result.  The court also found that the photo already in the record that depicted R.M. in the clothes she wore to appellant’s apartment did not provide grounds for a new trial because appellant had the opportunity to argue its significance to the jury.  The court did not explicitly address appellant’s Spreigl argument.  This appeal follows.


We review a postconviction court’s findings only to see if there is sufficient support in the record, and we will not reverse a postconviction court’s decision unless there is a clear abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

A hearing on a postconviction petition is required “[u]nless 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).  A petitioner must establish by a preponderance of the evidence that there are facts warranting a re-opening of the case.  State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999).  Newly discovered evidence is a basis for a new trial only when the petitioner can show:

(1) the evidence was not known to the defendant or counsel at the time of trial; (2) the failure to learn of the evidence prior to trial was not due to a lack of diligence; (3) the evidence is material, not merely impeaching, cumulative, or doubtful; and (4) the evidence will probably produce either an acquittal or a more favorable result for the defendant.


Woodruff v. State, 608 N.W.2d 881, 888 (Minn. 2000) (citation omitted).  Any claim known by a defendant at the time of a direct appeal that the defendant fails to raise in that appeal should not be considered for postconviction relief unless the claim is “so novel that the legal basis was not available on direct appeal” or “fairness requires its consideration.”  Severson v. State, 636 N.W.2d 808, 810 (Minn. 2001) (citation omitted).  These standards apply equally to pro se petitioners.  See Pierson v. State, 637 N.W.2d 571, 578-79 (Minn. 2002) (applying the same standards to a pro se petitioner). 

Appellant contends the “newly” discovered photograph is “new evidence” because he did not realize the photo had not been included in the trial court record until after the trial finished and, therefore, he could not have brought it to the court’s attention any sooner than now.  He claims having the photo in the record would most likely result in an acquittal or more favorable result because it shows that R.M. caused her own injuries and, thus, exonerates appellant and impeaches R.M.  Appellant also argues that he now realizes that a photo already in the record impeaches R.M.’s credibility.

            The “newly” discovered picture does not meet the standard for “new evidence.”  First, appellant knew of the photo at the time of his trial.  Further, there is no evidence establishing that the woman in the photograph is R.M. or showing the circumstances under which it was taken.  Given the strength of the evidence to support the conviction of criminal sexual conduct, even if this additional photo were admitted into evidence, it is unlikely that the photo would produce an acquittal or more favorable result.

Likewise, the photo already in the record does not present grounds for postconviction relief.  This photo does not constitute “new evidence” as it is already in the trial record.  Appellant could have raised this issue in his direct appeal.  Severson, 636 N.W.2d at 810 (holding that issues that could have been raised on direct appeal are inappropriate grounds for postconviction relief).  In addition, as the postconviction court noted, R.M.’s clothing and presence at appellant’s apartment were both undisputed and irrelevant to the issue of whether or not the sexual contact was consensual.  Therefore, the postconviction court did not abuse its discretion in denying appellant’s petition because neither the “newly” discovered photo nor the photo already in the record provide a basis for a new trial.

Appellant next argues the postconviction court should have ordered an evidentiary hearing or new trial because the trial court erred in not admitting into the record Spreigl evidence of R.M.’s prior accusation of assault against appellant.  As stated earlier, a defendant cannot use a petition for postconviction relief to raise a claim that was known at the time of a direct appeal unless the legal basis for the claim was not reasonably available at the time or the interests of justice so require.  Pierson, 637 N.W.2d at 578-79.  Neither factor exists here.  This claim existed at the time of the direct appeal and a Spreigl argument is not so novel so as to excuse appellant from raising it earlier.  Further, appellant made no real argument to the postconviction court, but merely asserted in his conclusion to his supplemental filing that he should have been allowed to impeach R.M. with the Spreigl evidence.  See Warren, 592 N.W.2d at 449 (petitioner must prove by a preponderance of the evidence that there are facts warranting a re-opening of the case).  Thus, the postconviction court did not abuse its discretion in denying this claim.

Appellant’s final argument assails the constitutionality of Minn. Stat. § 609.347, subd. 5(c) (2000).  Appellant contends the statute is unconstitutional because it contravenes the presumption of innocence by prohibiting the trial court from instructing the jury that “[c]riminal sexual conduct is a crime easily charged by a victim but very difficult to disprove by an accused.”  Id.  A petitioner waives an issue on appeal if he or she fails to raise it in the postconviction petition.  Hirt v. State, 309 Minn. 574, 575, 244 N.W.2d 162, 162 (Minn. 1976).  Appellant did not raise this argument in the postconviction court and thus waived it for purposes of this appeal.  But we note that appellant’s argument lacks merit because prohibiting the instruction has no effect on the presumption of innocence guaranteed by Minn. Stat. § 611.02 (1996).