This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jose Crecencio Mendez Zuniga,



Filed March 2, 2004


Kalitowski, Judge


Watonwan County District Court

File No. K0-02-92


Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Lamar Piper, Watonwan County Attorney, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for respondent)


John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of two counts of first-degree criminal sexual conduct and one count of domestic assault, arguing that the district court erred in instructing the jury and in excluding evidence of prior sexual acts by the victim.  In his pro se brief, appellant argues that he was denied effective assistance of counsel, the district court’s errors denied him a fair trial, and the evidence was insufficient to support the verdict.  We affirm.



            Appellant argues that the district court deprived him of a unanimous verdict by improperly instructing the jury.  See Minn. R. Crim. P. 26.01, subd. 1(5) (providing that verdicts in criminal cases must be unanimous).  District courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  When a defendant fails to object to jury instructions, this court may review the issue if there is (1) error; (2) that is plain; and (3) that affects substantial rights.   State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

A jury must unanimously find that the state has proved each element of a criminal charge.  Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999); Minn. R. Crim. P. 26.01, subd. 1(5).  But “[u]nanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.”  State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988) (citation omitted). 

Here, appellant was charged with two counts of first-degree criminal sexual conduct.  An essential element of one count is penetration; an essential element of the other count is sexual contact.  At the close of the evidence, the district court instructed the jurors that “[i]n order for you to return a verdict, whether guilty or not guilty, each juror must agree with your verdict.  Your verdict must be unanimous.”  After instructing the jurors on the essential elements of both counts, the district court instructed that “[i]f you find that each of these elements has been proved beyond a reasonable doubt, then the defendant is guilty.  If you find any element has not been proven beyond a reasonable doubt, then the defendant is not guilty.”  On appeal, relying on State v. Stempf,  627 N.W.2d 352 (Minn. App. 2001), appellant argues that because the jurors were not instructed that they had to unanimously agree on which particular act or acts constituted the crime, he was deprived of a unanimous verdict.  We disagree. 

            In Stempf, the acts occurred in two different, known locations; thus, there were two separate and distinct acts.  Id. at 358-59.  Here, the complaint did not allege separate and distinct acts of sexual conduct.  And the then-eight-year-old victim S.G. could not differentiate between the acts, but told investigators that they occurred every day after her mother left for work since she was seven years old.  Also, S.G. testified that the sexual contact occurred numerous times at the trailer where she lived with her family and appellant, her stepfather.  Moreover, Stempf noted that if an essential element of a crime is established through unanimous agreement, the means by which the element is satisfied need not be unanimously agreed upon.  Id. at 355.  Thus, we conclude that the district court did not err in denying appellant’s request for a specific unanimity instruction.

Appellant also argues that the complaint is imprecise and lacks detail because the complaint alleged the offense occurred “during February and/or March, 2002.”  But specific dates need not be charged or proven in a sexual abuse case.  State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992), aff’d, 499 N.W.2d 31 (Minn. 1993). 

Here, the jury instructions required the jury to unanimously agree that each element of every count charged was proved beyond a reasonable doubt.  Although appellant argues that the jury may have disagreed on what specific acts constituted penetration and contact, he was not denied his right to a unanimous verdict because it is not necessary for the jury to unanimously agree on the way in which he committed the crimes.  See Poole, 489 N.W.2d at 543.  In finding appellant guilty, the jury unanimously agreed that his conduct satisfied the elements of each offense with which he was charged.  We conclude that the district court did not commit plain error in instructing the jury.


            Appellant next argues that the district court erred in ruling evidence of S.G.’s prior sexual acts inadmissible.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  Id. (citation omitted).  The abuse-of-discretion standard of review has been specifically applied to proffered evidence regarding a complainant’s prior sexual history.  State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991); State v. Kroshus, 447 N.W.2d 203, 204 (Minn. App. 1989), review denied (Minn. Dec. 20, 1989).

            Generally, the rape-shield law provides that evidence of a victim’s previous sexual conduct is inadmissible except by court order.  Minn. Stat. § 609.347, subd. 3 (2002); Minn. R. Evid. 412.  But in certain cases, a victim’s past sexual conduct may be admitted where it is constitutionally required by the defendant’s right to due process, his right to confront his accuser, or his right to offer evidence in his own defense.  State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982).  And despite the rape-shield law, “a trial court has discretion to admit evidence tending to establish a source of knowledge of or familiarity with sexual matters in circumstances where the jury otherwise would likely infer that the defendant was the source of the knowledge.”  State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).

Here, appellant argues that the excluded evidence was relevant to show that S.G. had prior knowledge of sexual acts, specifically that S.G. did not learn about sex from him and she was predisposed to fabricating a charge of sexual assault.  But the district court admitted evidence regarding an unsubstantiated abuse allegation S.G. made against appellant.  Thus, appellant was able to argue that S.G. had a predisposition to falsely accuse appellant of sexual conduct.  Because none of the other prior acts of sexual conduct by S.G. tends to prove that she had a predisposition to falsely accuse individuals of sexual conduct, the district court did not err in excluding evidence of these incidents.

The district court also allowed testimony about an incident occurring in 1997 when S.G. was found masturbating with a stuffed animal.  This incident occurred while S.G. was in foster care and before she met appellant.  Thus, appellant was able to argue that S.G. had an inappropriate knowledge of sex before she met him.

            The district court also properly excluded evidence of two separate incidents in which S.G. was allegedly engaging in sexual acts with other children.  The court concluded that evidence of these incidents was more prejudicial than probative if offered to prove that S.G. had sexual knowledge before she met appellant because the incidents occurred after she met him.  But the district court provided that if the state argued that S.G.’s sexual knowledge was evidence that appellant had sexually abused her, it would allow evidence of those incidents because it would be relevant to show that S.G.’s sexual knowledge came through experimenting with other children rather than from appellant abusing her.  Thus, the record indicates that the district court carefully evaluated the parties’ arguments and the offered evidence in making its decision.

            The decision to admit evidence is left to the discretion of the district court.  Here, in ruling on these evidentiary matters, the district court allowed appellant to present evidence in support of his two theories of defense.  And because the district court carefully weighed the probative value of the evidence with its prejudicial effect in determining whether to allow the evidence, we conclude that the district court did not abuse its discretion. 


            Appellant argues in his pro se brief that he received ineffective assistance of counsel.  An appellant arguing that he or she received ineffective assistance of counsel must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and a reasonable probability exists that the outcome would have been different but for counsel’s errors.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  A reasonable probability is one that is sufficient to undermine confidence in the outcome.  Id.  There is a strong presumption that a counsel’s performance fell within the range of reasonable assistance.  See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  An attorney’s tactical decisions are within the proper discretion of the attorney and will not be later reviewed for competence.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).

            In his pro se brief, appellant asks that we preserve his right to pursue an ineffective assistance of counsel claim in a postconviction hearing.  “Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.”  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  But where the record provides sufficient grounds for a determination of the claim, such that an additional hearing is not necessary, this court may decide the claim on its merits.  Id.; Black v. State, 560 N.W. 2d 83, 85 n.1 (Minn. 1997).

            Appellant contends that he was denied effective assistance of counsel because his trial attorney failed to:  (1) properly investigate S.G.’s claims that she told her school friends about being abused; (2) object to the exclusion of S.G.’s mother from the courtroom; (3) object to closure of the courtroom while S.G. testified without a hearing; (4) make a Batson challenge to the state’s peremptory challenge of a Hispanic member of the jury pool; and (5) request a specific unanimity jury instruction.

            We cannot conclude that appellant’s counsel was ineffective for failing to investigate more thoroughly.  As the state points out, there is nothing in the record that indicates that appellant’s trial attorney did not investigate the statements S.G. allegedly made to her friends.  Further, nothing indicates that had appellant’s attorney investigated more thoroughly he would have discovered evidence that would have been helpful to appellant’s defense.  Finally, nothing in the record indicates that any evidence obtained by appellant’s attorney would have been admissible or that there is a reasonable probability that any new evidence would have affected the verdict.

            Nor can we conclude that appellant’s counsel was ineffective for failing to request a specific unanimity jury instruction.  As discussed above, because appellant was not entitled to a specific unanimity instruction, it was not error for his counsel to fail to ask for one.

            Appellant’s remaining arguments are also without merit.  Whether to make an objection is a tactical decision within the proper discretion of a trial attorney, and we do not review matters of trial strategy for competency.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

            We conclude that appellant’s ineffective assistance of counsel argument is without merit.  Because additional findings are not necessary to determine the merits of the issues raised, a postconviction hearing is not required, and appellant is barred from bringing these issues in a subsequent postconviction hearing.  Black, 560 N.W.2d at 85 n.1.


            Appellant next argues that the district court’s errors denied him his right to a fair trial.  Even if an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of the errors may compel reversal.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  Because we conclude that appellant has failed to establish that the district court erred, appellant is not entitled to reversal.


            Finally, appellant argues that the evidence is insufficient to support the verdict.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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).

            Appellant argues that S.G.’s testimony should have been corroborated and cites State v. Ani for this proposition.  257 N.W.2d 699 (Minn. 1977).  But Ani held that a sex-crime victim’s testimony need not be corroborated, noting that a jury trial and the judge’s power to grant relief are adequate to protect an innocent defendant against false charges.  Id. at 700.  Further, Minnesota law provides that a sex-crime victim’s testimony need not be corroborated.  Minn. Stat. § 609.347, subd. 1 (2002).  The record indicates that S.G.’s testimony is consistent with her medical examination and what she reported to three different investigators, and her testimony supports a finding that appellant is guilty of the charged crimes.  Because the jury found S.G.’s testimony to be true, we conclude that the evidence is sufficient to support the verdict.

            In conclusion, we affirm appellant’s conviction because (1) appellant is not entitled to a specific unanimity instruction; (2) the district court did not abuse its discretion in making evidentiary rulings; and (3) appellant’s pro se arguments are without merit.