This opinion will be unpublished and

may not be cited except as provided by

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






Luis Esquivel, petitioner,


State of Minnesota,


Filed August 28, 2007


Parker, Judge*


Watonwan County District Court

File No. K9-03-294



Luis Esquivel, OID #214956, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)


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


Lamar Piper, Watonwan County Attorney, Courthouse, 710 Second Avenue South, P.O. Box 518, St. James, MN 56081 (for respondent)



            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.

U N P U B L I S H E D  O P I N I O N




            Luis Esquivel appeals the district court’s order denying him funds for genetic testing and for contacting the public defender.  Because the district court did not abuse discretion, we affirm.



            In June 2003, appellant Luis Esquivel was convicted of first-degree criminal-sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), which prohibits engaging in sex with a person younger than 13 years of age when the perpetrator is more than 36 months older.  Thirteen days before his trial, the state moved the district court to have DNA testing done on the victim’s clothing and to get a DNA sample from Esquivel.  The state indicated that it was unsure if the BCA could get the DNA testing done before the trial began.  Esquivel was not opposed to DNA testing because he was sure the results would be negative.  But Esquivel did not want to delay trial any longer, and his attorney requested that “if it is physically impossible for the testing to be done by [the trial date], then [DNA testing] should not be done.”  The district court agreed with the parties and ordered that if the BCA could test the clothing before the trial, the state should provide the results to Esquivel by noon on the day before trial.

            No testing was performed, and the parties proceeded to trial.  The jury found Esquivel guilty of first-degree criminal-sexual conduct.  Esquivel filed a direct appeal of his conviction with this court, challenging the district court’s evidentiary rulings.  State v. Esquivel, Nos. A04-2024, A04-2025, 2006 WL 44240, at *1-*3 (Minn. App. Jan. 10, 2006), review denied (Minn. Apr. 18, 2006).  This court affirmed, and the supreme court denied review.  Id. at *4.

            In June 2006, by way of sending the district court a proposed order, Esquivel moved for funds so he could get DNA testing of the victim’s clothing and contact the public defender.  Esquivel’s motion was made pursuant to Minn. Stat. § 611.21(a) (2004).  The district court denied Esquivel’s motion, and this appeal followed.



            Minnesota law allows counsel for an indigent defendant to “file an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case.”  Minn. Stat. § 611.21(a) (2004).  Appellate courts review a district court’s denial of funds for an abuse of discretion.  State v. Griffie, 281 Minn. 569, 571, 161 N.W.2d 551, 552 (1968); In re Application of Jobe, 477 N.W.2d 723, 725 (Minn. App. 1991).  If the district court refuses to provide funding for the requested services, the district court must make written findings of fact and conclusions of law that state the basis for the district court’s denial.  Minn. Stat. § 611.21(c) (2004).

            Here, Esquivel was given the opportunity to have DNA testing before trial but declined.  Prior to trial, the state requested DNA testing of the victim’s clothing.  But the state agreed with Esquivel’s request that if testing could not be done before trial, it should not be done at all.  Although Esquivel argues that DNA testing is now necessary for an adequate defense, the district court found that Esquivel “has already had ample opportunity to present an adequate defense.”  Because Esquivel had the opportunity to have the DNA testing but refused, the district court’s determination that the funds were not necessary to Esquivel’s defense was proper.

            Furthermore, a request for funds under Minn. Stat. § 611.21(a) should be made prior to trial and does not apply to postconviction motions.  Minn. Stat. § 611.21(a) (referring to the “outset of the prosecution”); see also Griffie, 281 Minn. at 571, 161 N.W.2d at 552 (stating that a defendant’s motion for funds on the last day of trial was not timely).  Esquivel’s motion was made after his direct appeal from the trial failed, and it is untimely.  Moreover, the postconviction statute provides a remedy for DNA testing; however, Esquivel does not qualify because DNA testing was available at his trial.  Minn. Stat. § 590.01, subd. 1a(2) (2004).

            Based on the record, it also appears that the test—even if negative—would have been inconclusive.  See Griffie, 281 Minn. at 571, 161 N.W.2d at 552 (stating that a blood test would be “wholly inconclusive” because, at best, the test would only confirm that the blood sample was the right blood type, but would not conclusively identify who the sample was from).  Here, the record indicates that Esquivel used a condom, and a negative DNA match would not have been conclusive or necessarily exculpatory.

            Esquivel appears to raise other issues regarding “effectiveness of counsel,” due process, and prosecutorial misconduct, but these issues were not raised in the district court.  We decline to address these issues because they were not raised in the district court and are not properly before us.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally will not consider matters not argued and considered in the court below).



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