This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Thomas Wayne Evenstad,






State of Minnesota,




Filed May 20, 2003

Affirmed in part and reversed in part
Forsberg, Judge


Hennepin County District Court

File No. 98023039


Karin Marie Gjerset, McMahon & Associates, 2499 Rice Street, Suite 140, St. Paul, MN  55113 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order denying a postconviction petition challenging a 1999 conviction and sentence for first-degree criminal sexual conduct, appellant Thomas Wayne Evenstad argues that the postconviction court abused its discretion in denying his motion to strike respondent State of Minnesota’s memorandum, in rejecting appellant’s claim of newly discovered evidence of falsified testimony at trial, and in finding there was no Brady violation.  Finally, appellant argues that the court erred in failing to rule on his request that the third-degree criminal sexual conduct conviction be vacated as a lesser-included offense.  We affirm in part and reverse in part, by vacating the conviction for third-degree criminal sexual conduct.


            H.S. participated in a telephone chat line where she became acquainted with appellant who knew that she was 18 years old.  Appellant presented himself to H.S. as being an attractive 20-year-old, who owned a business, was wealthy, and drove a nice car.  H.S. began talking to appellant by telephone and they decided to meet in person.  When appellant picked up H.S., she noticed that he did not fit his given description but decided to go with him anyway.  Appellant sexually assaulted H.S. later that evening at his home.

            After the assault, H.S. left messages on the female side of the chat line in an attempt to learn if appellant had sexually assaulted other women.  As a result, two victims came forward, and their testimony was admitted at trial as Spreigl evidence.  J.A., a third alleged victim, claimed she was sexually assaulted by appellant, gave a statement to police, and identified him in a photo lineup.  J.A., however, recanted her story and later recanted the recantation, so the charges for sexual assault against her were eventually dropped.

            A jury found appellant guilty of committing first- and third-degree criminal sexual conduct against H.S, and he was sentenced to 139 months in prison.  Appellant sought review of his conviction, alleging insufficiency of the evidence and abuse of the district court’s discretion in admitting certain Spreigl evidence and barring impeachment evidence.  He also claimed ineffective assistance of trial counsel, but moved this court to dismiss that portion of his appeal because he had filed a petition for postconviction relief.  This court affirmed the district court’s decision and dismissed that part of the appeal dealing with ineffective assistance of counsel. 

Appellant’s postconviction petition claimed ineffective assistance of counsel, newly discovered evidence, and failure to disclose Brady evidence.  The postconviction court denied appellant’s petition in its entirety.  This appeal followed.


            An appellate court’s review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The court will not disturb the postconviction court’s decision absent an abuse of discretion.  Boitnott v. State, 640 N.W.2d 626, 629 (Minn. 2002).  A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.   Minn. Stat. § 590.04, subd. 3 (2002); State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).


            Appellant argues that the postconviction court abused its discretion by denying his motion to strike the state’s memorandum in opposition to the petition for postconviction relief.  Appellant asserts that because the memorandum was submitted 199 days after appellant filed his petition for postconviction relief, far beyond the 20 days required under Minn. Stat. § 590.03 (2002), and the court issued no order authorizing an extension, the response should have been stricken as untimely.  The postconviction court denied the motion to strike because there was trouble scheduling a hearing date before March 4, 2002, and “it was at least implicitly understood that [the court] was going to be giving the county attorney more time to respond.”  The record contains no document explicitly giving the state additional time to file a response.

            After filing a postconviction petition, the attorney acting on behalf of the county or state shall respond to the petition by answer or motion “[w]ithin 20 days after the filing of the petition * * * or within such time as the judge to whom the matter has been assigned may fix.”  Minn. Stat. § 590.03.  The supreme court has stated repeatedly: 

            Under the plain wording of § 590.03, the 20-day limit is not absolute and the state may be granted an extension of the time for filing a responsive pleading.  Since § 590.03 allows the postconviction court in its own discretion to “fix” the time period within which the state must file a responsive pleading, that court clearly did not abuse its discretion in denying the petition because the state had not filed an answer earlier.  Furthermore, petitioner failed to show prejudice from the delay on the part of the state in filing its responsive pleading.


Dhaemers v. State, 286 Minn. 250, 255-56, 175 N.W.2d 457, 461 (1970) (emphasis added); see also Wertheimer v. State, 294 Minn. 293, 299-300, 201 N.W.2d 383, 387 (1972) (following Dhaemers).  In Dhaemers, the state’s response was filed 43 days after the petition for postconviction relief.  286 Minn. at 252, 175 N.W.2d at 459.  Neither the state nor the caselaw defines a process for the court to follow in approving an extension.

Appellant claims that he was prejudiced by the delay because the state had extra time to prepare a response.  He contends that in its memorandum and order, the postconviction court relied heavily on the state’s memorandum in opposition to the petition by “almost uniformly adopting [the state’s] proposed case law and summarizing or paraphrasing their view of the facts.”  But it is unlikely the prosecutor spent more than the allotted 20 days on the response.  Even if we could recognize more helpful briefing as being prejudicial, appellant has not shown prejudice from the delay.  Appellant’s claim does not amount to prejudice.  Because the district court had discretion in setting a response time under Dhaemers, and because no prejudice is shown, we conclude that the postconviction court did not abuse its discretion in denying the motion to strike.


            Appellant argues that the postconviction court incorrectly applied the test for determining whether postconviction relief is warranted for newly discovered evidence.  See Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (applying four-prong test to determine whether new trial was warranted based on newly discovered evidence).  Appellant claims the court should have applied the three-pronged test from Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), adopted by the Minnesota Supreme Court in State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982). 

The supreme court has stated:

            Although the four-prong Rainer test is the correct test for newly-discovered evidence, it is not the correct test when a court reviews an allegation that false testimony was given at trial.  When it is alleged that false testimony was given at trial, the court must evaluate the claim under the three-prong test articulated by the 7th Circuit in Larrison.  * * *  The test for newly-discovered falsified testimony provides that in order to grant a new trial:  (1) the court must be reasonably well satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.  


Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001) (citations omitted).  The supreme court remanded the case under Dukes “for an application of the three-prong Larrison test and for findings as to whether a new trial is warranted by the newly-discovered falsified testimony.”  Id. at 258. 

            Here, however, the postconviction court found under the fourth prong on the Rainer test that “the evidence probably would not produce an acquittal or a more favorable result,” because A.M. “only was one of two Spreigl witnesses and did not testify to any facts regarding the crimes of which [appellant] was convicted.”  The fourth prong of the Rainer test is similar to the second prong of the Larrison test regarding the jury reaching a different conclusion without the false testimony or newly discovered evidence.  Therefore, while the postconviction court should have applied the Larrison test, rather than the Rainer test, it was harmless error because the outcome of the trial would not have been more favorable for appellant.


            Appellant argues that the postconviction court erred by determining that there was no Brady violation with regard to the state not disclosing exculpatory evidence that J.A. did not initially identify appellant in the photographic lineup.  Appellant asserts that this information was material to his guilt or punishment because it would have called into question A.M.’s identification of appellant.  Appellant argues that because Officer Beth Roberts allegedly prompted J.A. to identify appellant in the photo lineup, it is probable that Roberts did the same thing with A.M. and, therefore, the information was reasonably likely to have affected the judgment of the jury.  Because we find no merit to appellant’s pro se claims of Brady violations, we will only address the claim regarding J.A.

            Due process requires the state to disclose material evidence favorable to the defense following a defense request for discovery.  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000).  Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).  The state’s affirmative duty to disclose evidence that is favorable and material to the defense is embodied in Minn. R. Crim. P. 9.01, subd. 1(6).[1]

            At the postconviction proceeding, J.A. testified that before she identified appellant in the photographic lineup, which was tape-recorded, she was asked by Roberts to identify the man who raped her.  J.A. claims that when she identified a photo of a different man, Roberts said she had identified the wrong man and then pointed to appellant’s picture.  J.A. testified that Roberts then began to tape-record J.A.’s identification of appellant.  Before trial, the state provided appellant with a transcript of the lineup identification, but did not disclose to appellant that J.A. had identified someone other than appellant before the recorded identification.  Appellant’s trial counsel did not call J.A. as a witness and the state never presented evidence of her identification of appellant at trial.

            We conclude that the improper prompting of J.A. was not material, and therefore no Brady violation occurred.  Because J.A. recanted her story, and later recanted the recantation, presenting “significant credibility problems,” appellant’s trial counsel decided not to call J.A. as a witness.  The state called two Spreigl witnesses at trial who identified appellant as the man who raped them under circumstances similar to the assault against H.S.  There is no reasonable probability, even assuming the defense risked presenting the testimony of J.A., that the jury would have believed that the two Spreigl witnesses also initially failed to identify appellant and were improperly prompted.  Because we conclude that the evidence was not material, we need not address the rest of the Brady analysis.


            Appellant argues is his pro se brief that he received ineffective assistance of counsel because his attorney at trial did not pursue a conspiracy theory or call certain witnesses.  He asserts that there was a “complete breakdown in the trial strategy announced by counsel” at the beginning of trial.  He claims that his attorney did not adequately prepare for trial.

            In a postconviction case, the petitioner must allege facts that show counsel’s representation did not meet 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) (quotation omitted).  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); see also State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (“Appellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy.”).

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 at 633 (citation omitted).  Trial tactics are not to be confused with competence.  State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990).

            Appellant’s trial attorney, Fred Goetz, testified at the postconviction hearing that he never received an individual’s name that could adequately corroborate the conspiracy theory.  He also testified that he and appellant spoke extensively throughout trial about which witnesses to call and that ultimately appellant agreed with him as to who to call and not call as witnesses.  He testified that appellant was “an active participant in [the] trial defense” and that he did not present any theory over appellant’s objection.  Goetz chose not to pursue some of the proposed defense theories because they could have raised various issues or evidence that would not work in appellant’s favor.

            The postconviction court found that Goetz conducted a thorough investigation and acted on all aspects of the case.  Review of the postconviction hearing record supports the court’s conclusion.  When things were not investigated by Goetz or the hired investigator because of the costs involved, appellant and his father chose to investigate them instead.  Because which witnesses to call and which strategies to pursue at trial are within the trial counsel’s discretion, and the postconviction court is in the best position to determine the credibility of Goetz’s testimony, we conclude that the court did not err in determining that appellant received the effective assistance of counsel.


            The state is in agreement with appellant that the conviction for third-degree criminal sexual conduct should be vacated.  The postconviction court did not address this issue despite it being properly raised below.

A defendant may not be convicted of both a greater offense and a lesser degree of the same crime.  Minn. Stat. § 609.04, subd. 1 (2002).  Because third-degree criminal sexual conduct is a lesser degree of first-degree criminal conduct, and each arose out of the same act, we conclude that the lesser conviction of third-degree criminal sexual conduct should be vacated.

            Appellant’s pro se supplemental brief raises a number of additional issues for our review.  We have thoroughly reviewed the record and conclude those additional issues are without merit.

            Affirmed in part and reversed in part.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]   Minn. R. Crim. P. 9.01, subd. 1(6) states that the prosecutor

shall disclose to defense counsel any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.