This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Geraldine Kesselberg,



Filed March 15, 2005


Willis, Judge


Norman County District Court

File No. K0-03-239


Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Thomas Opheim, Norman County Attorney, 318 E. Main Street, Ada, MN  56510 (for respondent)


Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a conviction of perjury, appellant argues that the district court erred by finding that appellant’s false statement was material and by rejecting her recantation defense.  Appellant also argues that she received ineffective assistance of counsel.  Because we find no error and that appellant has not shown ineffective assistance of counsel, we affirm.


            On April 18, 2003, police searched Geraldine Kesselberg’s house and property and subsequently charged her son, Michael Padilla, with possession of a controlled substance.  At an omnibus hearing on June 25, 2003, Padilla moved to suppress the evidence seized in the search.  During this hearing, Kesselberg testified that Padilla did not maintain a residence at her house, that he had to have permission to stay there, and that he did not have permission on the day the search took place.  The district court denied Padilla’s motion to suppress.

            On July 21, 2003, in support of Padilla’s motion to reconsider the suppression motion, Kesselberg submitted an affidavit stating that her previous testimony was false, that Padilla maintained a room at her house, and that he “had total access to [her] residence.”  In denying the motion to reconsider, the district court stated that it did not “believe a thing [Kesselberg] says. . . .  She has no credibility left.”

            Kesselberg was charged with perjury under Minn. Stat. § 609.48, subds. 1(1), 3, 4(2) (2002).  The district court found that Kesselberg made statements during her testimony at the omnibus hearing that were inconsistent with those in her later affidavit and that she could not have believed that each statement was true when she made it.  The district court also found that Kesselberg made all of the statements under oath and that all were material because they were relevant to Padilla’s standing to contest the search and, therefore, were relevant to the motion to suppress.  The district court therefore found Kesselberg guilty of perjury under Minn. Stat. § 609.48, subds. 1(1), 3, and 4(2), but stayed the imposition of her sentence and instead placed her on five years’ probation, on the condition that she serve 60 days at Northwest Regional Correction Center, with the last 30 days under electronic home monitoring.  The district court also ordered Kesselberg to complete 120 hours of community service and pay a $500 fine.  This appeal follows.



Kesselberg admits that she testified falsely at the omnibus hearing.  But she argues that the record is insufficient to support the district court’s finding that her false testimony was material.  In a challenge to the sufficiency of the evidence, this court reviews the record in a light most favorable to the verdict.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  This court will look to see “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”  Id. (quotation omitted).  “We review criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions.”  Id. (quotation omitted).

            A person commits perjury by making “a false material statement not believing it to be true . . . in or for an action, hearing or proceeding of any kind in which the statement is required or authorized by law to be made under oath or affirmation.”  Minn. Stat. § 609.48, subd. 1(1) (2002).  Ordinarily, in a prosecution for perjury, the state must prove that the defendant made a false statement.  See id.  But “[w]hen the declarant has made two inconsistent statements under such circumstances that one or the other must be false and not believed by the declarant when made,” the state need not prove which statement is false because the fact-finder must determine only that one of the “statements was false and not believed by the declarant.”  Minn. Stat. § 609.48, subd.  3 (2002).

            Kesselberg argues that the district court’s response to Padilla’s motion to reconsider shows that it did not believe her original testimony.  Such disbelief, she contends, shows that her omnibus-hearing testimony had no effect on the court’s decision and that the falsehoods in her testimony are therefore immaterial.  Kesselberg argues that, without further evidence of the materiality of the false statements, the state has failed to meet its burden of proof. 

But the United States Supreme Court has defined a material statement as one that has “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it [is] addressed.”  United States v. Gaudin, 515 U.S. 506, 509, 115 S. Ct. 2310, 2313 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546 (1988)) (alteration in original).  Whether the district court believed Kesselberg’s testimony is, therefore, of no consequence to a determination of materiality.  A statement need not actually influence the decision-maker to be material; it is enough that the statement, if believed, is “capable of influencing” the decision-maker.  See id.  Kesselberg’s statements regarding whether her son was a resident of her house were material because they were capable of influencing the district court’s decision regarding the son’s motion to suppress evidence found at Kesselberg’s house.  Furthermore, it is not a defense to a perjury charge that “the statement was not used or . . . did not affect the proceeding for which it was made.”  Minn. Stat. § 609.48, subd. 2(4) (2002). 

The record also supports the district court’s finding that Kesselberg’s statements were inconsistent, as described in Minn. Stat. § 609.48, subd. 3.   Kesselberg could not have believed both that (1) Padilla did not maintain a residence and did not have permission to stay at her house, and (2) that he did maintain a room and had total access to her residence.  Kesselberg made both sets of statements under oath.  This is exactly the sort of circumstance contemplated by Minn. Stat. § 609.48, subd. 3.  Because the record supports the district court’s finding that one set of statements must be false and not believed when made, it follows that sufficient evidence exists to support Kesselberg’s conviction.  State v. Mach, 411 N.W.2d 574, 577 (Minn. App. 1987).


            Kesselberg next argues that the record does not support her conviction in light of her recantation.  We are aware that the Model Penal Code provides that if a declarant retracts a false statement in the course of the proceeding in which it was made, before it becomes apparent that the falsehood will be exposed and before it substantially affects the outcome of the proceeding, the recantation will bar a conviction of perjury.  Model Penal Code§ 241.1(4) (1980).  Minnesota has not enacted such a statute.  But the Minnesota Supreme Court has passively recognized the recantation defense by noting that  “it does appear from the advisory committee comments . . . that the legislature probably intended to permit such a defense.”  State v. Berge, 288 N.W.2d 687, 689 (Minn. 1979).  In Berge, however,the court chose not to “explicate the defense other than to say it is clear the defense had no application” in that case because the district court found the defendant guilty of perjury for making inconsistent statements as described in Minn. Stat. § 609.48, subd. 3.  Id.  The court noted that the recantation defense would apply only after a determination that the first of two inconsistent statements was false and that the second was true.  Id.  Minn. Stat. § 609.48, subd. 3, as we have noted above, does not require a determination of which of inconsistent statements is false.  

            Here, as in Berge, the district court found Kesselberg guilty under Minn. Stat. § 609.48, subds. 1, 3 (2002).  We find that the defense of recantation also is inapplicable here and does not bar her conviction.


            Finally,Kesselberg argues that her lawyer provided ineffective assistance.   Ineffective assistance of counsel justifies the reversal of a conviction when the appellant affirmatively proves that “counsel’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)).

            The lawyer who represented Padilla in his trial for possession of a controlled substance subsequently defended Kesselberg against the perjury charge.  Kesselberg alleges that the lawyer, while he was representing Padilla, lied to her on several occasions and that his “misconduct” resulted in the charges against her.  But the only unprofessional error that she alleges occurred while the lawyer represented her was his absence from her sentencing hearing; the district court granted a continuance because of his absence.  Kesselberg does not allege any unprofessional errors by her attorney during her trial or claim that the outcome of the proceeding was a result of prejudice caused by any attorney error.

            Because Kesselberg does not point to any conduct that falls below an objective standard of reasonableness, we find her claim of ineffective assistance of counsel to be without merit.