This opinion will be unpublished and

may not be cited except as provided by

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






Michael Peter Henderson, petitioner,


State of Minnesota,


Filed June 27, 2006


Minge, Judge


Mille Lacs County District Court

File No. K2-02-588



Michael P. Henderson, MCF – Faribault, 1101 Linden Lane, Faribault, MN  55021-6400 (pro se appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Jan Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN  56353 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Appellant challenges the summary denial of his petition for postconviction relief.  Because the date of appellant’s offense is not a material factor of the crime, and because appellant’s allegedly newly discovered evidence would not produce a different or more favorable result, we affirm.


            This is an appeal from a denial of postconviction relief.  Appellant Michael Henderson was convicted of first-degree manufacture of methamphetamine (meth), a violation of Minn. Stat. § 152.021, subd. 2a (2000), and use of a police radio during the commission of a crime, a violation of Minn. Stat. § 609.856, subd. 1 (2000).  Appellant filed a direct appeal challenging, among other things, whether the district court abused its discretion in imposing an upward sentence departure.  State v. Henderson, No. A03-867, 2004 WL 1833936, at *1 (Minn. App. Aug. 17, 2004), review denied (Minn. Oct. 27, 2004).  This court affirmed appellant’s conviction but remanded for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Henderson, 2004 WL 1833936, at *5-6.  Subsequently, appellant moved for postconviction relief, requesting an evidentiary hearing for newly discovered evidence and arguing that his due process rights were violated at trial.  The district court summarily denied appellant’s petition for postconviction relief.

            The facts relating to appellant’s conviction are summarized in the opinion addressing his direct appeal.  See id., at *1.  Only the facts relevant to appellant’s request for postconviction relief are recited here.  Subsequent to his arrest on May 21, 2002, appellant admitted that he “cooked” meth for two years, had done so within the week prior to his arrest, and used meth the evening before his arrest.  The complaint listed three counts against appellant: (1) controlled-substance crime in the first degree for manufacture of meth on or about May 2, 2002; (2) unlawful containment, tampering, theft or transport of anhydrous ammonia on or about May 21, 2002; and (3) use of police radios during the commission of a crime on or about May 21, 2002.

            While discussing jury instructions, appellant raised the issue of whether the state had proved the first charge in the complaint, which alleged manufacture on or around May 2, not May 21, when appellant was arrested.  The state noted the date error on the complaint and asked the judge to instruct the jury that, because appellant admitted that he had manufactured meth a week or less prior to his arrest, it was not essential for the state to prove that meth manufacture occurred on a specific date.  Appellant complained, arguing that the state was seeking to amend the complaint and that appellant would be prejudiced by such action.

            The district court submitted the following instruction to the jury:

The statutes of Minnesota provide that whoever unlawfully manufactures any amount of methamphetamine is guilty of a crime.  The elements of a controlled substance crime in the first degree are:

            First, the defendant manufactured any amount of methamphetamine.  “To manufacture” methamphetamine means and includes the production, quality control, and standardization of drugs by mechanical, physical, or chemical means, and their packing, repacking, or other processing.

            Second, the defendant’s act took place on or about May 21, 2002 in Mille Lacs County.

            If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.

(Emphasis added.)  Appellant argues that the district court abused its discretion in denying postconviction relief on the basis that this instruction impermissibly prejudiced his defense and in failing to grant an evidentiary hearing to consider new evidence.


            A postconviction court’s decision is reviewed “only to determine whether sufficient evidence supports the court’s findings.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will reverse a postconviction court’s determination only for an abuse of discretion.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).  A petitioner seeking postconviction relief bears the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (2004).  To meet that burden, a petitioner’s allegations must be supported by more than mere argumentative assertions that lack factual support.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

            A.        Date of Offense

            Appellant first argues that the district court improperly instructed the jury, which prejudiced his opportunity to present a meaningful defense.  “It is well established that a criminal defendant has a constitutional due process right to present a meaningful defense.”  State v. Reese, 692 N.W.2d 736, 740 (Minn. 2005).  Appellant contends that this right was infringed by the jury instruction, which allowed the jury to consider whether the offense occurred on a date different from that charged in the complaint.

            Due process requires that the complaint provide the defendant with notice of the claims against him.  See McCollum v. State, 640 N.W.2d 610, 618 (Minn. 2002).  Here, appellant claims that he lacked notice because the first charged offense, manufacture of meth, was dated May 2 and not May 21.  All charges in the complaint arise from the same series of events.  Police arrested appellant on May 21 and executed a search warrant at appellant’s house on the same day.  Both the second and third charged offenses were dated May 21.  Moreover, after his arrest on May 21, appellant was questioned extensively by police about his activities on that date, and appellant admitted to making meth within a week of his arrest.  In consideration of these facts, appellant had adequate notice of the charges against him and his due process rights were not violated.

            In addition, Minnesota law provides that “the precise time at which the offense was committed need not be stated in the indictment, but may be alleged to have been committed at any time before the finding thereof, except where the time shall be a material ingredient in the offense.”  Minn. Stat. § 628.15 (2000).  The precise date is a material factor of the crime “only where the act done is unlawful during certain seasons, on certain days or at certain hours of the day.”  State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984); see State v. Fraser, 277 Minn. 421, 422, 152 N.W.2d 731, 731-32 (1967); see also State v. Irish, 183 Minn. 49, 52, 55, 235 N.W. 625, 626-27 (1931) (holding that a criminal defendant was not prejudiced when the information was amended at trial to note that grand-larceny acts happened in 1924 instead of 1927); City of Duluth v. Nordin, 166 Minn. 466, 467, 208 N.W. 189, 189 (1926) (holding that when the offense is keeping a place where intoxicating liquor is sold, direct proof that a sale occurred on a particular day was not material ingredient of crime).

            Here, appellant was charged with first-degree manufacture of meth.  The statute provides that “a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.”  Minn. Stat. § 152.021, subd. 2a (2002).  Accordingly, guilt is not predicated on manufacture on a particular date, and, the date is not a material element of the offense.  The only relevant inquiry is whether the defendant actually manufactured meth in the general timeframe.  Appellant admitted to “cooking” meth for two years and admitted to doing so within a week of his arrest.  Appellant was not prejudiced when the district court instructed the jury to consider appellant’s act “on or about May 21, 2002” even though the complaint stated the acts occurred “[o]n or about May 2, 2002.”

            Moreover, appellant failed to raise this issue on his direct appeal, although it was certainly known to him at that time.  “[O]nce a direct appeal has been taken ‘all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.’”  McDonough v. State, 675 N.W.2d 53, 55 (Minn. 2004) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).  Although there are exceptions to this procedural bar, they do not apply in this case.  See Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003).  Therefore, the district court did not abuse its discretion by denying appellant postconviction relief on this ground.

            B.        Newly Discovered Evidence

            Appellant also argues that the district court abused its discretion by denying an evidentiary hearing to determine whether he should have a new trial in light of newly discovered evidence.  A postconviction court must grant an evidentiary hearing on a motion for postconviction relief “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2004); see also Townsend v. State, 582 N.W.2d 225, 229 (Minn. 1998) (providing that petitioner must allege necessary underlying facts that, if proved, would entitle him to the relief requested in order to have an evidentiary hearing on his postconviction petition).

            In order to obtain a new trial on the ground of newly discovered evidence, the defendant must establish that: (1) the evidence was not known to him or defense counsel at trial; (2) his failure to learn of the evidence before trial was not due to lack of diligence; (3) the evidence is material; and (4) the evidence will probably produce an acquittal at a retrial or a result more favorable to the petitioner.  Race v. State, 417 N.W.2d 264, 266 (Minn. 1987). 

            Here, appellant’s newly discovered evidence is alibi testimony.  Appellant contends this is sufficient to warrant an evidentiary hearing.  However, appellant’s evidence fails to meet the four-prong test articulated in Race, principally because appellant admitted that he manufactured meth.  Because appellant’s conviction did not rest on the fact that he manufactured meth on a particular day, having an alibi for a precise date is irrelevant.  Appellant’s production of alibi witnesses appears to be related to his first claim that he was unprepared to defend an allegation that he manufactured meth on a particular day, which presumably these witnesses might refute.  Yet, because appellant admitted that he manufactured meth for two years and had done so within a week of his arrest, an alibi for a particular day is not the type of evidence likely to produce a different result in this case.  Thus, the district court did not abuse its discretion by denying an evidentiary hearing.