This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed September 6, 2005
Affirmed; motion granted
Toussaint, Chief Judge
Hennepin County District Court
File No. 03055352
Mike Hatch, Attorney General, 1800
Song Lo Fawcett, Robert J. Fowler, Daniel S. Le, Kelley
& Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, St. Paul,
Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.
TOUSSAINT, Chief Judge
Appellant Yeng Pha, age 22, was charged with two counts of first-degree criminal sexual conduct for allegedly having sexual intercourse with his 11-year-old twin nieces, M.K.X. and M.N.X. See Minn. Stat. § 609.342, subd. 1(a) (2002) (prohibiting sexual conduct between complainant under 13 years of age and actor more than 36 months older). After a bench trial, the district court convicted Pha of both counts of first-degree criminal sexual conduct and sentenced him to 144 months in prison. Pha filed a motion for a new trial, arguing that the evidence was insufficient to support the conviction and that his counsel was ineffective. The district court denied the motion. Because we conclude that (1) the evidence was sufficient to support the conviction; and Pha voluntarily waived his right to a jury trial and (2) Pha’s counsel was not ineffective, we affirm the conviction.
D E C I S I O N
Sufficiency of the Evidence
argues that the lack of physical evidence of sexual abuse and the girls’ lack
of credibility bolster a conclusion that the conviction was not supported by
the evidence. In assessing a claim
attacking the sufficiency of evidence, the evidence is viewed in the light most
favorable to the verdict to determine whether the facts in the record and any
other legitimate inferences would permit a jury to conclude that a defendant
was guilty beyond a reasonable doubt.
At trial, both girls testified that Pha sexually penetrated them on multiple occasions while they were staying in his room at the girls’ grandmother’s house. M.K.X. testified that she reported the abuse because she thought it might have contributed to an illness that she developed. Using a diagram, each girl testified that Pha’s genitalia touched hers when she was staying in his room. M.K.X.’s attending nurse, a prosecution witness; and M.N.X.’s examining doctor, a defense witness; both testified that physical injuries from sexual conduct would not be common in young females, especially if there was a lapse between the injury and the examination. The examining doctor also testified that it is more than 90 % likely that a child will not exhibit physical evidence of a sexual injury if an examination is not done on the day of the abuse.
According to the state’s original complaint, M.K.X. told police that the last time she was abused was two months before she was interviewed at the Midwest Children’s Resource Center in July 2003, and M.N.X. stated that the last time the abuse occurred was when she was ten years old; M.N.X. had her eleventh birthday on July 1, 2003, more than one month before the complaint was filed. The record therefore reflects that the girls’ testimony was credible, and the nurse’s and doctor’s testimony regarding the absence of physical injuries when there is a delay in submitting to an examination support the girls’ original statements to police.
Pha next asserts that the girls were not credible because they had a history of fabricating abuse. After the girls’ parents divorced and their mother was awarded legal custody in April 2003, the girls reported to a schoolteacher that their stepfather sexually abused them. First-degree criminal sexual conduct charges against the stepfather were brought but later dismissed because police did not believe that the girls’ accusations were reliable. Pha contends that the girls’ accusations against him are also unreliable because they mirror the discredited accusations against their stepfather. The district court rejected this argument and noted that the girls had a motive to fabricate allegations against their stepfather because they preferred to live with their father, while in this case, the girls had no motive to fabricate because they testified that they liked visiting Pha. Pha further asserts that the district court in the stepfather’s case made a factual finding that the sexual-assault allegations were fabricated and that this court should take judicial notice of the finding. But we agree with the state’s observation that the district court only barred hearsay evidence from being admitted against the stepfather under the catchall exception, which did not amount to a judicial finding of fabrication.
is well settled that judging the credibility of witnesses and the weight given
to their testimony rests within the province of the finder of fact. State
v. Johnson, 568 N.W.2d 426, 435 (
Ineffective Assistance of Counsel
next argues that he is entitled to a new trial because he was denied the effective
assistance of counsel. The district
court rejected Pha’s claim, which was raised in a motion for new trial. An ineffective-assistance-of-counsel claim
involves mixed questions of law and fact, and this court reviews postconviction
decisions on this issue de novo. Opsahl v. State, 677 N.W.2d 414, 420 (
bears the burden of proof on a claim of ineffective-assistance-of-counsel. State v.
Lahue, 585 N.W.2d 785, 789 (
Pha first asserts
that his trial counsel’s performance fell below an objective standard of
reasonableness because counsel did not investigate known witnesses with an
interpreter and did not pursue exculpatory evidence from Pha’s mother. These claims are without merit. First, the supreme court has “repeatedly
stated” that it will not review an attack on an attorney’s trial strategy. Opsahl,
677 N.W.2d at 421. “The extent of
counsel’s investigation is considered a part of trial strategy.”
Second, contrary to Pha’s claim, it is not obvious from the record that the defense witnesses were confused. As the state observes, some witnesses effectively contradicted the prosecution’s testimony. For example, Pha’s cousin and mother both testified that Pha’s bedroom door did not have a lock, which contradicted M.N.X.’s testimony. Pha’s cousin testified that sexual relations between Pha and his nieces would be taboo in Hmong culture, which questioned the truthfulness of the girls’ claims. The girls’ mother testified that the girls would typically come to her if they needed help, but the girls never mentioned Pha’s actions. Finally, Pha’s counsel successfully impeached M.K.X.’s statement that M.K.X. told a social worker in May 2003 that Pha had inappropriately touched her by calling the social worker to the stand and exposing the misstatement.
There is no indication in the record that counsel’s performance fell below an objective standard of reasonableness such that the verdict would have been different but for the deficient performance. Vick, 632 N.W.2d at 688. As the state observed, Pha’s counsel attempted to establish that family members did not witness the abuse and that Pha’s bedroom door did not have a lock. We do not question this trial strategy and thus do not reverse Pha’s conviction based on ineffective assistance of counsel.
Waiver of Jury Trial
Pha argues that his conviction should be reversed because he did not
voluntarily waive his right to a jury trial.
A defendant’s right to a jury trial is protected by the state
constitution, but the defendant may waive this right.
waiver of a jury trial must be made knowingly, intelligently, and
voluntarily. State v. Ross, 472 N.W.2d 651, 653 (
Before trial and with the assistance of an interpreter, Pha’s attorney advised him of the charges, the potential jail sentence, the fact that both parties could call witnesses who would be cross-examined, and the requirement that the 12 jurors must be unanimous to return a guilty verdict. The attorney also explained that Pha could help choose the 12 jurors, but if he waived his right to a jury trial, the judge would listen to the evidence. Pha confirmed that he wished to waive his right to a jury trial. The judge then explained that he would take the place of the jury and apply the facts and the law to the case. The judge asked Pha if he had any questions, and he answered, “I don’t know much about, I will take that option.” The judge accepted Pha’s waiver as intelligently made.
Pha argues on appeal that his waiver was not knowingly, voluntarily, or intelligently made because he is unfamiliar with the legal system and wished to speak more about the matter with the aid of an interpreter. But Pha’s counsel clearly explained the basic elements of a jury trial as outlined in Ross, and Pha stated unequivocally that he wished to waive his right to a jury. The record also reflects that Pha had an opportunity to speak to his attorney with the aid of an interpreter in the hallway outside of the courtroom and before the judge. The waiver was made orally after Pha had the opportunity to consult with counsel, and it complies with the dictates of the state constitution and Minn. R. Crim. P. 26.01, subd. 1(2)(2). Although the district court’s colloquy only emphasized that the judge would take the place of the jury and did not exhaustively describe the factors enunciated in Ross, the court is not required to make a “searching inquiry” as to why Pha waived his right to a jury trial. See M.E.M., 674 N.W.2d at 213. The attorney’s extensive discussion—aided by an interpreter—of jury-trial procedures, along with Pha’s on-the-record statements, support the conclusion that his waiver of a jury trial was made knowingly, voluntarily, and intelligently. See Ross, 472 N.W.2d at 654 (“The nature and extent of the inquiry may vary with the circumstances of a particular case.”).
Motion to Strike Portions of Appellant’s Appendix
After briefing was completed in this case, the state made a motion to strike two excerpts from Pha’s appendix that were not part of the record. The first excerpt was a transcript from the pretrial hearing of the girls’ stepfather. The second excerpt was from an interview between M.K.X. and a social worker. Pha argues that the excerpts should be considered in our discretion because they relate to the girls’ discredited allegations against their stepfather and provide a complete appellate record. We disagree.
“The record on
appeal shall consist of the papers filed in the trial court, the offered
exhibits, and the transcript of the proceedings, if any.”
Because the evidence was sufficient to support Pha’s conviction, he was not denied effective assistance of counsel, and he voluntarily waived his right to a jury trial, we affirm.
Affirmed; motion granted.
 Pha also argues that the police lacked probable cause to arrest. The district court suppressed Pha’s pretrial statement to police on the ground that the interrogative setting was unduly coercive. Pha provides no authority for his argument that the evidence underlying his conviction was insufficient because of the suppression of his pretrial statement, and we find it to be without merit.
observe that the preferred method for raising an
ineffective-assistance-of-counsel argument is through a petition for
postconviction relief. See