may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Hennepin County District Court
File No. 01085929
Robert D. Miller, Robert D. Miller & Associates, Suite 110, 111 Marquette Avenue South, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Hussein Osman Abdi was charged with five counts of first-degree criminal sexual conduct. Following a bench trial based in part on stipulated evidence, Abdi was convicted of all five charges. On appeal, he makes the following arguments. First, he argues that the district court committed plain error in relying on the conclusions of the state’s DNA experts when (a) the foundation as to their expert qualifications was insufficient; and (b) the DNA reports on which the court relied were not properly authenticated. Second, he argues that he was denied the effective assistance of counsel when his trial counsel (a) failed to request a Frye-Mack hearing; and (b) advised Abdi to waive his right to a jury trial and his right to confront adverse witnesses. Third, Abdi argues that the evidence was insufficient to support his convictions. We affirm.
In October 2001, S.H.O., who was 12 years old, reported to the police that she was sexually assaulted by appellant Hussein Osman Abdi, who was approximately 32 years old. S.H.O further reported that the abuse began when she was ten years old. S.H.O., an immigrant from Kenya, began living in the United States with appellant and his wife in 1996. Abdi was eventually charged with five counts of first-degree criminal sexual conduct.
Abdi waived his right to a jury trial and his right to confront the state’s witnesses, and agreed to a trial based in part on stipulated evidence. See Minn. R. Crim. P. 26.01, subd. 3 (providing for a trial on stipulated facts). In exchange for his waiver, the state agreed that if Abdi were convicted on all five counts, the state would not seek an upward durational departure and that Abdi would be sentenced to 144 months in prison — the presumptive term for a conviction of one count of first-degree criminal sexual conduct. Minn. Stat. § 609.342, subd. 2(b) (2000).
Abdi initially made some stipulations regarding the DNA evidence but retracted those the following day with the state’s consent. However, Abdi’s stipulation to the admissibility of the DNA report remained unchanged. Abdi’s trial counsel described how the state would present its evidence:
[B]y agreeing to this procedure the government is going to be able to present evidence without calling witnesses to the witness stand. In doing so, I will not be able to ask questions of the witnesses because they would be offering the evidence through both [sic] papers and photographs and videotapes.
The Constitution says that you’re entitled to require the government to bring in witnesses to testify from the witness stand so that they have to come in open court . . . so we can ask them questions to test the truth of their statement[s].
But by entering this agreement you’re waiving your right and giving up your constitutional right to do that; and the State has agreed to do certain things in this case in exchange for your agreement to do that.
Defense counsel also stated:
What we anticipate is that the State will present at least part of its case through reports and videotape [of S.H.O.’s Cornerhouse interview] without the necessity for live witnesses and without our right to confront obviously — or cross-examine the videotapes.
Accordingly, Abdi did not object when the state’s DNA report was admitted into evidence.
At trial, and in accordance with Abdi’s waivers, the state submitted only record evidence that included the amended complaint, the DNA report, property-inventory pages, photographs, underwear, police reports, medical and sexual-assault-exam reports, videotaped interviews with S.H.O., a search warrant and receipt, and an immigration report.
Abdi testified in his defense and denied having sexual intercourse with S.H.O. Abdi testified that he and his wife had sexual relations in S.H.O.’s bedroom and that the underwear recovered in the bedroom belonged to his wife, though he admitted under cross-examination that his wife was much larger and taller than S.H.O. Abdi also presented three character witnesses, including S.H.O.’s uncle, who each testified that Abdi was an honest and trustworthy person.
The district court found Abdi guilty of all five counts of first-degree criminal sexual conduct. Abdi was sentenced to 144 months in prison in accord with the agreement of the parties. Abdi filed an appeal from his convictions in June 2002, but later moved for and was granted a stay so he could file a petition for postconviction relief. This court then dismissed Abdi’s June 2002 appeal in October 2002.
Thereafter, Abdi filed a petition for postconviction relief, alleging ineffective assistance of counsel. Abdi argued that his trial counsel erred when he (a) did not request a Frye-Mack hearing to challenge the admissibility of the DNA evidence; and (b) obtained from Abdi a waiver of his right to a jury and his right to confront the witnesses against him. Following a hearing on the matter, the district court denied Abdi’s petition. Abdi appeals from his convictions and from the denial of his postconviction petition.
Abdi first argues that the district court abused its discretion by relying on the DNA reports because the state failed (a) to prove its DNA experts were qualified to provide an expert opinion; and (b) to authenticate its DNA reports. He concedes that he did not object to the admission of the reports at trial, but argues that their admission is plain error. This court applies the plain-error analysis to unobjected-to errors at trial. “[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). We begin and end our plain-error analysis with the conclusion that the district court did not err in receiving and relying on the experts’ reports.
Minnesota Rules of Evidence permit the admission of “scientific, technical, or other specialized knowledge” by a witness “sufficiently qualified as an expert.” Minn. R. Evid. 702; id. 1977 comm. cmt. It is the responsibility of the district court to determine if a witness is sufficiently qualified as an expert. Minn. R. Evid. 702 1977 comm. cmt. In this case, because the parties stipulated to the admissibility of the reports, the district court did not address the qualifications of the experts who analyzed the DNA evidence. Stipulations as to evidence to be considered at trial are binding upon trial and appellate courts. State v. Litzau, 377 N.W.2d 53, 55 (Minn. App. 1985); see State v. Cavegn, 294 N.W.2d 717, 723-24 (Minn. 1980) (holding defendant waived right to question admission of Spreigl evidence after stipulating to admission of all evidence received at omnibus hearing).
Here, the reports were clearly offered as expert opinion evidence; there would be no other basis on which to receive them. A showing of expertise is a part of the foundation of the admission of such evidence. Minn. R. Evid. 702. Thus, once Abdi stipulated to the admissibility of the reports, he stipulated to the expertise of the authors. Because Abdi stipulated to the admission of the DNA reports and the expertise of the authors, the district court did not err in admitting and relying upon the reports. See State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999) (stating that “because [defendant’s] counsel did not object to the admissibility of the DNA evidence, any objection to its admission was knowingly waived”).
Abdi takes exception to the statement in the court’s memorandum accompanying its verdict in which the court found that “[t]here is no evidence that the opinions lack foundation.” Abdi argues that the court’s finding impermissibly shifts the burden of proof from the state to the defendant. This argument is not persuasive. The court had properly received the reports during the trial, and when the court was rendering its verdict at the end of the trial, the statement of which Abdi complains was merely a comment on a ruling the court had already made.
Abdi also argues that the state failed to authenticate the documents containing the experts’ reports concerning the DNA evidence. Authentication is a condition precedent to admissibility; it requires a showing that the matter is what its proponent says it is. Minn. R. Evid. 901(a). Once Abdi stipulated to the admissibility of the experts’ reports, he perforce agreed that they were what the state said they were, that is, reports completed by the scientists who appeared to author them. The authentication requirement was met, and Abdi’s claim that the district court erred in this respect must be rejected.
Alternatively, Abdi argues that his trial counsel was ineffective when counsel (1) failed to request a Frye-Mack hearing to challenge the admissibility of the DNA evidence; and (2) obtained Abdi’s waiver of his right to a jury trial and his right to confront the witnesses against him. Abdi asserts that had his counsel sought a Frye-Mack hearing, he would have been able to raise the issue of population statistics and their relationship to a person of Somali descent. Counsel could also have raised an issue as to the integrity of the forensic samples.
The claim of ineffective assistance of counsel was raised in Abdi’s postconviction proceeding. 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. “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. It is the petitioner’s burden to establish “by a fair preponderance of the evidence facts that warrant a reopening of his case.” Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000). To succeed on his ineffective assistance of counsel claims, Abdi
must demonstrate that his counsels’ performance fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsels’ errors. We consider an attorney’s actions to be within the objective standard of reasonableness when the attorney provides the client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances. There is a strong presumption that counsels’ performance was reasonable.
Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (citation and quotations omitted). “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, 2068 (1984)).
The district court denied Abdi’s motion for postconviction relief, finding, inter alia, that (1) trial counsel’s decision not to request a Frye-Mack hearing was a matter of trial strategy and Abdi failed to establish prejudice; (2) Abdi’s waiver of his right to a jury trial and his right to confront witnesses were also matters of trial strategy, because in return for the waivers Abdi negotiated a substantial sentence concession by the state; and (3) the evidence was sufficiently strong that it “was likely” Abdi would have been convicted even without the DNA evidence.
In State v. Schneider, the supreme court held that “[d]efense counsel’s tactical decisions as to whether to request a Frye hearing, object to the admission of DNA evidence, or otherwise attempt to cast a reasonable doubt on the reliability of the DNA evidence [are] matters of trial strategy.” 597 N.W.2d at 894. Appellate courts do not review matters of trial tactics or strategy for competency. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). Moreover, because Abdi agreed to stipulate to the admission of the DNA evidence received at trial, he cannot now claim surprise or prejudice. See Litzau, 377 N.W.2d at 55 (holding that a stipulation as to evidence to be considered at trial is permissible and binding upon trial and appellate courts). Further, Abdi has not submitted any evidence challenging the protocol utilized or the databases relied upon by the BCA to make its probability calculations. Therefore, there is no reason to believe the district court would have suppressed the DNA evidence if a Frye-Mack hearing had been held. King v. State, 562 N.W.2d 791, 796 (Minn. 1997). Accordingly, we conclude that the district court did not abuse its discretion in finding Abdi failed to establish that his trial counsel was ineffective when he chose not to request a Frye-Mack hearing to challenge the admissibility of the DNA report.
As to Abdi’s decision to waive his right to a jury trial and his right to confront adverse witnesses, the record supports the district court’s finding that doing so was a matter of trial strategy. Abdi’s complaint in this respect must be viewed in the context that in exchange for Abdi’s agreeing to a trial based on stipulated facts, his trial counsel was able to obtain a substantial sentencing concession from the state: 144 months, as opposed to a possible sentence of 288 months, as well as the state’s agreement not to seek an upward departure.
Moreover, the record reflects that when Abdi entered his waiver, he understood the nature of the rights he was waiving, and he makes no claim that his waivers were invalid. He signed a written waiver of his right to a jury trial and, with the aid of a court interpreter, orally waived his right to confront adverse witnesses and agreed to proceed on stipulated facts. The trial court inquired into the waivers, and the postconviction court found that Abdi agreed to a trial based on stipulated facts. Where the record indicates a defendant has been informed of the consequences of an agreement to proceed on stipulated facts and to waive his right to a jury trial, and where a defendant’s waivers are knowing and voluntary, a claim that he was denied effective assistance of counsel has no merit. Miles v. State, 512 N.W.2d 601, 603 (Minn. App. 1994), review denied (Minn. May 17, 1994).
We conclude that the district court did not abuse its discretion in denying Abdi’s petition for postconviction relief.
Finally, Abdi argues that the evidence was insufficient to support his convictions. In considering a claim of insufficient evidence, this court’s review is limited to an 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 reached. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This 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). This court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The findings of a trial court, after waiver of a jury trial, are entitled to the same weight as a jury verdict. State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996).
Abdi’s argument rests largely on his earlier arguments: because the DNA reports were admitted without adequate foundation or authentication, the trial court should not have considered the expert’s opinions of the DNA analysis, and without the expert opinions, the court was helpless to decipher the data. Thus, argues Abdi, there was insufficient evidence to convict him. However, because we have concluded that the district court did not err in admitting and relying on the DNA reports, Abdi’s argument is without merit.
Moreover, there was other evidence in the record sufficient to support Abdi’s conviction when viewed in a light most favorable to the verdict. S.H.O. reported the last sexual assault within 24 hours after it occurred and made consistent statements to her teacher, the police, the Cornerhouse interviewer, and the sexual-assault examiner. There was evidence submitted that S.H.O. experienced medical injuries consistent with a rape occurring on October 16, including scratches on her face. There was also evidence of vaginal injuries, and the presence of semen in S.H.O’s vagina and perineal area and on her underwear. In contrast, there was no evidence that persons other than Abdi had access to the victim during the time indicated prior to October 16. Even without the DNA evidence, a fact-finder could reasonably conclude that Abdi was guilty of the charged offenses.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The agreement amounted to a substantial concession by the state. Not only did the state agree that it would not seek an upward departure, but the agreement also negated the possibility that Abdi would receive consecutive sentences. Had he been convicted of five charges, or any two charges for offenses committed on separate dates, Abdi could have received consecutive sentences of 144 months each. (Consecutive sentences are permissive and may be given without departure in cases of “multiple current felony convictions for crimes against persons.” Minn. Sent. Guidelines II.F.2; “Consecutive sentencing is permissive . . . even when the offenses involve a single victim involving a single course of conduct.” Minn. Sent. Guidelines cmt. II.F.04).
 The postconviction court’s finding of fact #4 is therefore erroneous with respect to its finding that appellant “stipulated . . . that the DNA matches that of [appellant], and either party was then permitted to call whatever other witnesses they chose.” The record indicates the parties agreed that (a) appellant retracted his earlier stipulations with respect to the DNA evidence; and (b) the state would not call any witnesses.
 The state argues that appellant has impermissibly “shifted and expanded” his arguments on appeal; its brief does not address appellant’s argument concerning the sufficiency of the evidence to convict. The state’s brief assumes appellant appeals only from the denial of his petition for postconviction relief. However, appellant’s notice of appeal indicates that he appeals both from the judgment of conviction and the order denying postconviction relief, which is permissible given the procedural posture of this case. See Johnson v. Gray, 533 N.W.2d 57, 61 (Minn. App. 1995) (stating where defendant moves to stay direct appeal for purposes of bringing postconviction proceedings, it is the practice of this court to dismiss appeal and allow defendant to raise all issues in subsequent appeal from denial of postconviction relief). This court’s “order dismissing [appellant’s] direct appeal for purposes of bringing postconviction proceedings has the same effect as a stay of the direct appeal.” Id. Thus, all of appellant’s arguments are properly before this court.