This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





David Gbalah Blayon,



Filed August 21, 2007


Shumaker, Judge

Concurring specially, Ross, Judge


Hennepin County District Court

File No. 04044114



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


Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)


            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N


            A jury found appellant David Gbalah Blayon guilty of criminal sexual conduct in the third degree.  He appealed, and that appeal was stayed so that he could petition for postconviction relief on the ground of ineffective assistance of his defense counsel at trial.  Finding that defense counsel’s performance was deficient but that the deficiency was not prejudicial, the district court denied the petition, and this court reinstated his direct appeal.  Blayon now contends that the district court applied the wrong standard in assessing prejudice.  Because there is no basis for postconviction relief, we affirm.


            Appellant David Gbalah Blayon, a Liberian national, was a member of a church that ministered to Liberian immigrants.  D.W. was an associate pastor there.  Between 2002 and May of 2004, D.W.’s relationship with Blayon was that of pastor and parishioner.  But in May 2004, Blayon began telephoning D.W., telling her that he loved her and wanted to marry her.  She knew Blayon was already married and that his wife and seven children lived in Ghana, and she told him that she was not interested in any relationship with him except as his pastor.

            On July 5, 2004, Blayon called D.W. and invited her to his home for a “great African meal” and to discuss his plan to run for the office of president of the local chapter of a Liberian organization.  She accepted the invitation.

            D.W. went to Blayon’s home on the evening of July 7.  As she entered the apartment, she commented that she did not smell anything cooking, and Blayon told her not to worry about that.  He told her to sit on the couch, and then he sat beside her and began kissing her.  He next unzipped her top and exposed her breast, and then he used the remote control to turn the television channel to a pornographic movie.  Blayon then exposed his genitals, leaned against D.W., and said, “Oh, I have to get a condom.”  He left briefly, and D.W. attempted to leave.  Blayon returned while D.W. was at the door, and he pressed her against the door and held her tightly.  Saying that he wanted to show her something, he led her to the bedroom.  Once there, he said, “Come on, let me poke you, let me poke you a couple of times.”  When D.W. refused, Blayon pushed her onto the bed and began to pull her clothes off.  She protested and struggled with him, but he was able to penetrate her vagina with his penis.  He was wearing a condom.  Ultimately, D.W. was able to leave the apartment, and she reported the incident to the police.

            The next day, Brooklyn Park Detective Mark Bergeron interviewed Blayon at the police station and tape-recorded the interview, which was played to the jury at trial.  Bergeron asked Blayon if he wanted to talk to him about what happened the previous evening, and, when Blayon said he did, Bergeron invited him to “start from the top and tell me what happened last night with [D.W.].”

            Blayon began with background information about his children and the INS.  Then he indicated that, when he learned D.W. was not married, he proposed to her.  He stated that she replied, “Okay, David, if you want to do that then you got to date me.”  He asked for how long.  He noted that he had already been in this country for four years and explained that when the “sexy feeling” comes to him he goes into the bathroom and “I do my dick like this . . . .  Then if my spray come off, then I finish.  I do this for four year I been in America.”  As he gave this explanation, he demonstrated by unzipping his pants and exposing and rubbing his penis.  Bergeron told him twice to put his penis back in his pants.  Blayon said, “Okay, you know, you man.”  Bergeron then advised him to explain with words.  Blayon continued to discuss how he has relieved his sexual tension and has used condoms so as not to spray on the wall.  Blayon further indicated that “I don’t have time for a woman” and that he has used this method for four years.  When Bergeron asked about condoms, Blayon stated that he keeps them around and uses them for masturbation “but no to have woman no.”  Blayon contended that his sex with D.W. was consensual and that she initiated it by telling him that she wanted to have sex with him.  Eventually, the state charged him with criminal sexual conduct in the third degree, and he pleaded not guilty.  After a trial, a jury found him guilty.

            At a pretrial conference, at a Rasmussen hearing, and during voir dire at trial, the issue of the admissibility of evidence that Blayon exposed and rubbed his penis in the police interview was discussed among counsel and the two successive judges assigned to the case, but no express, specific ruling on the issue appears of record.  Blayon filed a direct appeal, but that appeal was stayed so that he could pursue postconviction relief.  Contending that his defense attorney’s assistance was ineffective because he did not object to this evidence or did not “pursue rulings on objections,” Blayon sought postconviction relief.  The district court found defense counsel’s trial performance deficient but not prejudicial and denied the petition.  This court reinstated his direct appeal.



            Blayon contends that he established his claim of the ineffective assistance of his trial counsel and that the district court erred in not granting him a new trial.

            To claims of ineffective assistance of counsel, courts apply the test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (applying Strickland to trial counsel).  That test requires two inquiries: (1) whether counsel’s performance in representing the client fell below an objective standard of reasonableness; and, if so, (2) whether there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068.  In applying the Strickland test, courts also recognize “a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quotation omitted).  In the framework of the Strickland test and the presumption of reasonable assistance, and recognizing that the appellant carries the burden of establishing his claim, we carefully review the entire record to determine whether there is sufficient evidence to sustain the postconviction court’s findings.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Furthermore, the postconviction court’s conclusions will not be reversed on appeal absent a showing that the court abused its discretion.  Id.

            The postconviction court granted Blayon’s motion for an evidentiary hearing, took testimony from Blayon’s trial counsel, and received as an exhibit a copy of the transcript of the police interview containing the evidence that Blayon contends was inadmissible.

            In a carefully considered order dated August 16, 2006, the court reflected its factual findings; concluded that defense counsel’s performance was deficient because he either did not object to the “masturbation evidence” or, having objected, failed to obtain an explicit ruling on his objection; but concluded that Blayon failed to show that he was so prejudiced by counsel’s deficient performance that the outcome of the trial was affected.

            Blayon does not challenge any of the court’s factual findings or the court’s conclusion that defense counsel’s performance was deficient in the way the court said it was.  But, as Blayon urges, because his claim involves mixed questions of law and fact, we apply a de novo standard of review.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

            The unchallenged facts, as to which no contradictory evidence appears in the record, show that at a pretrial hearing before Judge Holahan “defense counsel objected to all of the masturbation evidence from the interview with Detective Bergeron,” arguing that the evidence was more prejudicial than probative and was irrelevant to Blayon’s “state of mind.”  At the postconviction hearing, defense counsel testified that, at the pretrial conference, “I believe I spoke for some length of time for my objections to it,” referring to the masturbation evidence.  Counsel testified that it was his recollection that Judge Holahan indicated that the interview would be admissible, subject to redactions, but that the judge did not rule on any redactions at that time nor did he indicate what things he felt would be redacted.  Rather, Judge Holahan told the attorneys to review the interview to determine what they could agree on.  They did so, but were unable to agree as to whether the masturbation evidence should be redacted.  Although Judge Holahan indicated that he also would review the interview to see whether anything gave him concern, the case was reassigned to Judge Greenberg before he could do so.

            Judge Greenberg first presided over a Rasmussen hearing at which defense counsel challenged the admissibility of the entire interview on constitutional grounds. The challenge was unsuccessful, and then both counsel advised the judge of the interview and of redactions they had agreed on, but they stated that “issues of disagreement would be submitted to the Court for resolution.”

            Judge Greenberg read the interview, noted that the “interview was admissible” but portions that were statements rather than questions were not admissible, and said that other materials, which he did not specify, might not be appropriate.  Judge Greenberg told the attorneys to tell him what they agreed on and to identify other items “as necessary for the Court’s ruling on whether they should be redacted, or whether they may be heard by the jury . . . .”

            The postconviction court found that, before opening statements, “the parties argued numerous aspects of the police interview to Judge Greenberg, and he ruled on the admissibility of disputed issues.”  It is clear from the record that the masturbation evidence was one of those disputed issues, but the record does not contain any express ruling by Judge Greenberg as to that evidence or any other of the “numerous aspects of the police interview” in dispute.  However, the postconviction court found that “Judge Greenberg ultimately ordered that the tape of the interview with Detective Bergeron be redacted to reflect his rulings, and the redacted tape was played to the jury.”  (Emphasis added.)  The redacted tape, and the redacted transcript, continued to contain the masturbation evidence.  Implicitly, then, Judge Greenberg overruled defense counsel’s objection to the masturbation evidence.  This conclusion is compelled both by the finding that Judge Greenberg allowed into evidence only the evidence that was consistent with his rulings and by the virtually incontrovertible unlikelihood that the trial judge and experienced defense counsel would sit by without comment while inadmissible evidence was presented to the jury.

            Having heard defense counsel’s postconviction testimony, the court found him to be “reputable, experienced, and skilled, with over 30 years of criminal and civil jury trial experience . . .” who “plainly understood” the problem with the masturbation evidence.  The court did not find or intimate that defense counsel’s uncontradicted postconviction testimony lacked credibility or was equivocal or ambiguous.

            Thus, the unchallenged, uncontradicted facts show that defense counsel objected to the masturbation evidence in the police interview before Judge Holahan and before Judge Greenberg on grounds of relevancy and the rule 403 exclusion.  Minn. R. Evid. 403 (even if evidence is relevant, it may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice”).  Although defense counsel did not cite that rule, and Blayon does not mention the rule on appeal, the postconviction court correctly identified rule 403 as being one of the bases on which the masturbation evidence might be excluded.

            Any conclusion that defense counsel failed to object to the masturbation evidence in the police interview before both Judge Holahan and Judge Greenberg is unsupported by the record and is at odds with the postconviction court’s factual findings.  Thus, under the “performance” prong of Strickland, defense counsel’s representation was not ineffective for want of a timely objection on proper grounds.  Blayon’s insistence that defense counsel should have objected to references to the masturbation evidence during the prosecutor’s opening statement and final argument as well as during the evidentiary portion of the trial lacks merit.  Defense counsel testified that he received a ruling on his objection before opening statements, and the facts bear that out, although the ruling was not explicit.  Unless defense counsel’s testimony was lacking in credibility—and, as noted above, nothing in this record supports such an inference—once the court overruled counsel’s objection, he had no obligation to continue to press the objection.  Having made a timely objection on proper grounds and having received a ruling on it, counsel provided the requisite reasonable professional assistance, at least as to the conduct of the trial itself.

            Blayon also faults defense counsel for failing to obtain a clear, explicit ruling as to his objection on the record.  A clear and complete record is critical to adequate posttrial proceedings and appellate review.  Recognizing that trials and other evidentiary proceedings are dynamic and not always characterized by linear orderliness, gaps and ambiguities in the record can occur.  Ensuring a proper record is a joint enterprise of court and counsel.  The judge and the attorneys need to be vigilant about the record.

            We cannot determine why Judge Greenberg’s rulings as to the police interview do not appear explicitly on the record.  The evidence is inconclusive as to whether this omission was defense counsel’s fault.  But even assuming, for the sake of discussion, that it was defense counsel’s duty to ensure that the ruling on his objection was placed explicitly on the record and that he failed to perform that duty, such deficiency could not cause the type of prejudice at trial contemplated by the second prong of Strickland.

            Blayon argues that the masturbation evidence was both irrelevant and so highly prejudicial that it virtually precluded the jury from deciding the case on the admissible evidence.  His premise is that defense counsel’s pursuit of the issue of admissibility would have resulted in the exclusion of the evidence.  As we have held, defense counsel made the objection and received an adverse ruling.  His failure to ensure a clear ruling on the record as to his objection could not possibly have affected the outcome of the trial because the court allowed the evidence over counsel’s objection.  Any “prejudice” could pertain only to posttrial or appellate proceedings in which an adequate record is critical.

            Finally, Blayon assumes that the masturbation evidence was irrelevant and excludable as such, but he makes very little analysis of the issue.  The postconviction court found the evidence “arguably relevant” to show the detective’s surprise and hence D.W.’s lack of expectation of sexual conduct, and to explain why Blayon bought condoms.

            The evidence was clearly relevant under Minn. R. Evid. 401, which defines relevant evidence as that having any tendency to make a consequential fact more likely or less likely than it would be if the evidence were not presented.  Minn. R. Evid. 401.  The issue was whether Blayon’s admitted sexual intercourse with D.W. was consensual or nonconsensual.  He offered to the police an exculpatory explanation, namely that even though he has been without a woman for four years, he relieves his sexual tension by masturbating and he uses a condom for purposes of cleanliness.  The inference he wanted the detective to draw is that he does not have to force sex upon a woman because he has an outlet.  Depending on whether the trier of fact believed Blayon’s explanation, his masturbation evidence would have some tendency to make nonconsensual sex less probable.  As a general matter, it is difficult to imagine how an accused’s attempt to exculpate himself from criminal liability by offering an excuse, explanation, or plain denial would not be relevant, however implausible it might be.  And if an exculpatory explanation is irrelevant, then the prosecution can also obtain its exclusion, possibly to the significant detriment of the accused because he might then find that he has nothing to offer in his defense.  Furthermore, the fact that Blayon coupled his explanation with a physical demonstration does not make the evidence less relevant.  The demonstration was intended to augment, clarify, and illustrate his oral explanation.  Any effort by defense counsel to pursue a relevancy objection would almost certainly fail, and counsel’s representation would not have been deficient even if he had made no objection at all on this ground.

            The masturbation evidence raises an issue under Minn. R. Evid. 403.  As noted above, the evidence has probative value as Blayon’s exculpatory explanation of why he did not need to have nonconsensual sex and why he had purchased a condom.  If the jury did not believe his explanation because it seemed implausible, then the attempted exculpation was prejudicial to Blayon.  But the operative adjective in rule 403 is “unfair” prejudice.  Blayon’s demonstration of how he relieves sexual tension was crude and distasteful.  However, to assess whether it unfairly prejudiced him, we need to recognize that it was neither gratuitous nor prurient.  In lieu of the descriptive word “masturbate,”—which Blayon never used at any time—he demonstrated.  He did this in the presence of an adult male in a private setting, and he even indicated that he felt his illustration would be understood by another male.  That evidence is distasteful does not per se mean it causes unfair prejudice.  To be unfair, the evidence would have to be something possibly extraneous to the case and that would cause the jury to reach its decision principally on or because of that evidence rather than the legitimate evidence on the merits.  Even shockingly graphic evidence is not excludable without a clear showing of unfairness.  See State v. Miller, 666 N.W.2d 703, 715-16 (Minn. 2003) (affirming introduction of the head of a plastic female sex toy with semen on the anatomically correct mouth that was found in defendant’s bedroom, when the victim in the case was decapitated); State v. Jobe, 486 N.W.2d 407, 416-17 (Minn. 1992) (affirming introduction of explicit and gruesome crime-scene photographs to show extent and severity of victims’ injuries); see also State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993) (affirming admission of a pornographic magazine for corroboration purposes and to assist the jury in placing the defendant's conduct in its proper and relevant context); State v. Holscher, 417 N.W.2d 698, 702-03 (Minn. App. 1988) (holding sex toys seized from the scene of a sexual assault were relevant and admissible despite the fact that they were not used against the victim), review denied (Minn. Mar. 18, 1988).  Understanding the nature, context, and intent of the masturbation evidence, we can conceive of it as being admissible even over a rule 403 objection.  Defense counsel did make a rule 403 objection in substance, but even had he not done so, his representation would not therefore have been deficient.

            Although we disagree with the postconviction court’s conclusion that defense counsel’s representation was deficient, the court’s conclusion that there was no prejudice as a result was correct and is fully supported by the record.


















ROSS, Judge (concurring specially)

I concur in the majority’s affirmation and join in nearly all aspects of the opinion.  My only caveat is that I cannot agree with the conclusion that, even had defense counsel not made the rule-403 objection to the masturbation evidence, counsel’s representation would still have constituted effective assistance.  As a practical matter, once we determine that the record establishes that Blayon’s counsel certainly made the objection—a determination the majority makes and explains very well—Blayon’s constitutional challenge to his counsel’s alleged failure to object falls with no need for the supplemental even-if discussion.  The opinion goes one step too far beyond this holding.

But I also disagree in substance with the additional contemplation because I believe that the postconviction court correctly determined that defense counsel’s failure to object would have constituted deficient representation in this case.  Blayon’s claim that he masturbates to relieve sexual tension is clearly relevant for the reasons explained by the majority.  If that were the only matter, I would agree with the dicta.  But the separate, shocking fact is that without any solicitation, Blayon actually demonstrated the act by opening his pants and underwear and manipulating his exposed penis during a police department interview.  This exhibition evidence presents a real danger of unfair prejudice and of misleading the jury.  And this danger significantly outweighs the slight probative value of the evidence as it regards the alleged sexual-tension relief.  See Minn. R. Evid. 403 (rendering relevant evidence inadmissible when the danger for unfair prejudice or misleading of the jury, among other things, substantially outweighs its probative value).

In Blayon’s underlying he-said-she-said criminal case, whether the jury would find that Blayon sexually assaulted his pastor might depend largely on whether it believed that Blayon is self-restrained within commonly accepted sexual boundaries.  In that context, the graphic evidence that Blayon openly demonstrated masturbation in front of an officer whom he had just met while the officer twice told him to put his penis back into his pants would almost certainly be misapplied by the jury as character evidence to convict Blayon because he is sexually uninhibited and deviant.  See Id. 404(a) (rendering character evidence generally inadmissible to prove an action in conformity with that character), 404(b) (rendering evidence of an accused person’s actions inadmissible to prove character if the probative value of the evidence is outweighed by its potential for unfair prejudice).

And the fact that jurors might impermissibly consider the masturbation episode as evidence to conclude that Blayon acted in conformity with his sexually unrestrained character turned out to be no mere hypothetical possibility in this case.  After the trial court admitted the evidence over defense counsel’s objection, the prosecutor exploited the provocative exhibition during closing argument.  Obvious from the following excerpt, she did so in a fashion that pressed jurors to consider Blayon’s shocking conduct as a reflection of his character and to convict him based on his demonstrated propensity to ignore societal sexual standards:

In this case, the defendant went too far the night of the sexual assault, he went too far during his interview with Detective Bergeron, in trying to portray this actual intercourse in this case as Pastor W[.]’s idea . . . .


Was Pastor W[.] surprised to see the defendant’s penis exposed to her while she was sitting on the couch?  Was Detective Bergeron surprised at the act where the defendant stood up during this taped interview, removed his penis from his pants, and masturbated in the presence of a controlled environment?  You bet.  Both of them were surprised and shocked.


Did Pastor W[.] and Detective Bergeron both see how quickly the defendant’s behavior could change, how quickly his conduct could turn into exposing himself, and how preoccupied he was with his penis when the, quote, feeling comes to him, unquote, by the defendant’s words and conduct . . . ?


[C]onsider . . . when the defendant stands during this interview, removes his penis from his jeans and starts masturbating and he tells the detective, quote, I do this to my d‑‑k like this.  I do this like this.  Then, if my spray comes off, then I finish.  I do this for four years I been in America.


I believe the evidence of Blayon’s unusual sexual demonstration was subject to objection because it was highly likely to be misused by the jury—just as the prosecutor ultimately urged—to convict Blayon based on an impermissible character-driven comparison.  But the prosecutor’s exploitation merely emphasizes the point; any minimally competent defense attorney would have recognized the apparent imbalance between the demonstration’s two competing concerns: its marginal value to the probative issue for which the evidence is relevant, and its substantial tendency toward undue prejudice and jury confusion.  The cases cited by the majority also include extraneous prejudicial facts, but the evidence in none of those cases presents the stark disparity between the minimal probative value and the high probability of significant prejudicial misapplication apparent here.  I therefore do not join in the view that counsel’s hypothetical failure to object to the admission of the masturbation evidence would necessarily have passed constitutional scrutiny on the theory that the evidence would survive a rule-403 challenge.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.