This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Cary Brian Crowell,


Filed September 25, 2007


Halbrooks, Judge



Ramsey County District Court

File No. K2-05-2092


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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102  (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis , MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Muehlberg, Judge. *

U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction of first-degree criminal sexual conduct, appellant argues that (1) the district court abused its discretion by preventing appellant’s counsel from questioning prospective jurors concerning whether they could believe a lay witness instead of a police officer; (2) the district court abused its discretion by admitting the victim’s out-of-court statements to a police officer and her videotaped statement to a nurse; (3) the district court erred in its jury instruction on reasonable doubt; (4) the district court erred by determining that Minn. Stat. § 244.10, subd. 4 (2006), does not violate the doctrine of separation of powers; (5) the district court abused its discretion by imposing a double upward departure; and (6) he received ineffective assistance of counsel.  We affirm.


            On June 17, 2005, K.G., age 10, was at home with her stepbrothers and her stepfather, appellant Cary Brian Crowell, while her mother was out of town.  According to K.G.’s testimony, appellant came into K.G.’s bedroom naked, grabbed her arm tightly, and told her to take off her clothes.  K.G. complied.  Appellant then pushed K.G. down on her bed and told her to spread her legs.  Appellant then touched K.G.’s genitals with his hand, followed by oral, anal, and vaginal penetration.  K.G. resisted and told appellant to stop, but appellant ejaculated in K.G. 

            K.G. called 911 from her sister’s bedroom and reported the incident.  She remained on the phone with the dispatcher until the officer arrived.  He later stated that K.G.’s face was red, and that “[s]he was bent over, sitting on the bed hunched over with her hands near her face,” staring at the floor.  The audible sound of appellant’s voice caused K.G. to cringe.  And K.G. refused to leave the room until the officer told her that appellant was handcuffed in a police car. 

            K.G. was taken to the Children’s Hospital emergency room, where a nurse from the Midwest Children’s Resource Center (MCRC) interviewed and physically examined her.  The interview was videotaped.  K.G. reported that her “bottom,” including both her anal and vaginal areas, was sore.  A physical examination of K.G. indicated redness in the genital area, and the back of her labia had a cut that was bleeding.  The nurse collected swabs from K.G.’s vaginal, rectal, and perineal areas, and subsequent lab results showed the presence of amylase, which is typically from saliva.  DNA testing indicated the presence of appellant’s DNA, and a weaker DNA not inconsistent with K.G.’s was found on the boxer shorts that appellant was wearing when he was arrested.  Testing results from samples taken from K.G. indicated DNA consistent with appellant’s DNA. 

            Appellant was charged with two counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004).  A jury found appellant guilty of both charges.  In a subsequent sentencing trial, the district court instructed the jury on four aggravating sentencing factors, including that there had been multiple forms of sexual penetration; appellant committed the offense with particular cruelty; K.G. suffered personal injury; and appellant violated K.G.’s zone of privacy.  The jury found that all four aggravating factors had been proved beyond a reasonable doubt.  The district court granted the state’s motion to sentence appellant to 302 months, a double upward durational departure. 

This appeal follows.




            Appellant argues that the district court abused its discretion by precluding his counsel from asking hypothetical questions during voir dire that were intended to determine whether potential jurors gave more credence to police officers than to ordinary citizens.  District court decisions relating to the manner of conducting voir dire will not be reversed absent an abuse of discretion.  State v. Greer, 635 N.W.2d 82, 87 (Minn. 2001).

            The purpose of voir dire is to discover “bases for challenge for cause and for the purpose of gaining knowledge to enable an informed exercise of peremptory challenges,” including the ability to challenge for bias.  Minn. R. Crim. P. 26.02, subds. 4(1), 5(1)1.  But to keep the parties’ inquiries reasonable, the district court has the responsibility to “restrict or prohibit questions that are repetitious, irrelevant or otherwise improper.”  Id., subd. 4(1) cmt.  Hypothetical questions are improper if they would reveal in advance a juror’s decision regarding a specified set of facts or evidence, thus committing the potential juror before the case is submitted.  [2000-2006] Minn. Judges Crim. Bench Book 13-5 (Minn. State Ct. Adm’r Office, July 2004) (citing S. R. Shapiro, Annotation, Propriety and Effect of Asking Prospective Jurors Hypothetical Questions on Voir Dire as to How They Would Decide Issues of Case, 99 ALR 2d 7 (1965)).  Such questions “relate to what a juror’s verdict would be if certain facts were proved; how he would apply legal principles (for example, the burden of proof) if a certain factual situation appeared; and whether he would be willing to follow certain instructions if the trial judge gave them.”  Shapiro, 99 ALR 2d at 20.

            Here, the district court made the following record before voir dire was begun:

            [O]ff the record we had a discussion about the issue of use of hypotheticals during voir dire.  I did do a little additional research concerning this issue.


                        Specifically, I had cautioned [appellant’s counsel] about the use of hypothetical questions during voir dire.  I told him that hypothetical questions were not proper since it would require a juror in advance to commit to a certain statement of facts and, thereby, potentially commit himself prior to the case actually being submitted.


                        My authority for that is the Minnesota Criminal Bench Book, and that is still my ruling.  But [appellant’s counsel] did have some objection to that in terms of how that would affect his voir dire.  So I wanted to make a record of that.


            Juror No. 3, whose sister is a police officer, indicated on the jury questionnaire that he would probably give more credence to a police officer’s testimony.  During voir dire, the following exchange between appellant’s counsel and juror No. 3 occurred:

Q.        Do you think, though, that you could set aside that view about the reliability, the kind of super reliability of police officers and to weigh a police officer’s testimony the same as you would anybody else?

                        A.        Yes.

                        Q.        Did you understand what I was asking?

                        A.        I—in my answer, I didn’t make a police—I didn’t intend to make a police officer out as a super person or something.  I’m, I’m thinking that if someone—if an officer was on the stand and they were saying something, I would consider it and probably give it credibility.  If—would I do that more so than another person?  I don’t know.  I think that I would individually judge each person up on a stand giving the testimony.

                        Q.        Well, suppose, just purely hypothetically, you had an officer you heard say x, and then you had a civilian witness say not x, and if that’s all you had to go on, would you give the officer’s status as an officer kind of the lead there?

                        A.        No, I’d do it on an individual basis of my observation of an officer versus x.  I would do it on whom I believed more.

                        Q.        Okay.  So if I’m understanding you, I think you understand that an officer is a witness the same as other witnesses, and you have to determine that person’s credibility, as well as everybody else who testifies—

                        A.        Indeed, yes.

                        Q.        —in reaching your decision.

                        A.        Yes.


After the examination, appellant’s counsel passed juror No. 3 for cause.

            As voir dire continued, appellant’s counsel addressed this same line of questioning with at least two other prospective jurors.  For example, the following exchange occurred with a subsequent juror:

Q.        You stated that you would give more—I guess, yes, that you would give more credibility to the testimony of a police officer.  Am I understanding that correctly?

A.        Well, I’m not quite understanding, in all honesty, that question.  I guess it would depend on sort of the situation, it seems to me, but I, I look at police officers as trained observers and know—so in many cases I would assume that they would have an eye for looking at the appropriate detail.  It’s kind of a vague situation.  That was my thinking in that reply.

Q.        And would it be fair to say that perhaps another kind of witness might have a different kind of background or life experiences that would weigh into that person’s credibility?

A.        Well—

Q.        Well, you’ve got the police officer’s training and experience, and you’re saying you would weight that into credibility of that officer’s testimony.  Is that a fair statement?

A.        Yes.

Q.        and at the same time there might be another kind of witness who might have similar background or experiences.  And I guess I’m looking for whether you would also be able to factor in—

A.        Yes.

Q.        —those experiences in weighing that person’s credibility.

A.        Yes.

Q.        But there could just be different factors that go into that equation.

A.        Yes, I understand, and I would say, yes.


Once again, appellant’s counsel passed the juror for cause and did not exercise a peremptory challenge, although he still had one available.

            Appellant contends that based on State v. Logan, 535 N.W.2d 320 (Minn. 1995), the district court’s abuse of discretion created structural error that is not subject to a harmless-error analysis.  We disagree.

            In Logan, the supreme court reversed the defendant’s conviction of two counts of first-degree murder and remanded for a new trial on the ground that the district court’s failure to excuse a juror who admitted during voir dire that he would give more credence to a police officer’s testimony deprived the defendant of a fair trial by an impartial jury.  535 N.W.2d at 324. 

            But Logan is distinguishable on several bases.  First, defense counsel asked the district court to excuse a particular juror for cause, and the district court refused to do so.  Id. at 322.  There was no such request here.  But more importantly, the Logan prospective juror, who ended up on the jury, never swore that he “‘could set aside any opinion he might hold and decide the case on the evidence,’ but only that he would try.”  Id. at 324 (citations omitted).  In this case, the prospective jurors, upon counsel’s examination, indicated their willingness to decide the case on its merits, giving credence to those witnesses who were believable.  As a result, we conclude that the district court acted within its discretion in its ruling on voir dire.


            Appellant argues that the district court abused its discretion by admitting K.G.’s statements to the police officer and her videotaped statement given to the nurse at MCRC pursuant to Minn. R. Evid. 801(d)(1)(B) and 803(4).  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  Minn. R. Evid. 801(d)(1)(B) states that a statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness[.]”  The supreme court has stated that

prior consistent out-of-court statements are not automatically admitted.  The statements must be helpful to the trier of fact in evaluating witness’ credibility.  Thus, before the statement can be admitted, the witness’ credibility must have been challenged, and the statement must bolster the witness’ credibility with respect to that aspect of the witness’ credibility that was challenged.


State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).

            Credibility of the victim and appellant was the central issue in this case.  Appellant denied that he sexually abused K.G., while she testified in detail as to what occurred.  Because the content of K.G.’s statements to the officer was consistent with her trial testimony and the statements bolstered her challenged credibility, the district court did not abuse its discretion by admitting the statements under Minn. R. Evid. 801(d)(1)(B).

            The second evidentiary ruling that appellant challenges is the admission of K.G.’s videotaped statement to the nurse at MCRC.  Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial . . . , offered in evidence to prove the truth of the matter asserted.”  Minn. R. Evid. 801(c).  Hearsay is generally inadmissible.  Minn. R. Evid. 802.

            A hearsay exception allows admission of “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”  Minn. R. Evid. 803(4).  Children alleging sexual assault need medical examination and diagnosis.  State v. Larson, 472 N.W.2d 120, 126 (Minn. 1991) (describing statements regarding identity of abuser and nature of the contact as being motivated by need for treatment).  But the child must have known that “she was speaking to medical personnel and that it was important she tell the truth.”  State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (citing Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1992)).

            After arriving at the emergency room, a woman introduced herself to K.G. as a nurse working at the clinic who would give K.G. a physical checkup to “make sure that you’re okay.”  The setting and introduction focused K.G. on the medical purpose of the conversation.  Based on K.G.’s descriptions of what had occurred, the nurse subsequently physically examined K.G. for evidence of sexual abuse.

Because we conclude that K.G.’s videotaped statement was made for purposes of medical diagnosis and treatment, consistent with the requirements of Minn. R. Evid. 803(4), the district court did not abuse its discretion in admitting the videotape. 


            Appellant argues that he was denied a fair trial because the district court erred by giving a modified jury instruction on reasonable doubt that emphasized what is not reasonable doubt as opposed to what constitutes reasonable doubt.  District courts are allowed “considerable latitude” in jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions are viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court’s instructions must define the crime charged.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted). 

            Reasonable doubt is the elementary principle in enforcing criminal law, and as such, “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”  State v. Peterson, 673 N.W.2d 482, 486-87 (Minn. 2004) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73 (1970)).  Such a constitutional defect warrants automatic reversal.  Id. at 487.  Nonetheless, the United States Constitution does not require that trial courts “use any particular form of words to define the government’s burden of proof as long as, taken as a whole, the concept of reasonable doubt is correctly conveyed to the jury.”  State v. Smith, 674 N.W.2d 398, 400 (Minn. 2004) (citing Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994)).  And a reviewing court evaluating a reasonable doubt instruction “asks if the jury was reasonably likely to apply the instruction in an unconstitutional manner.”  Id.

            The standard jury instruction for reasonable doubt states:

            Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs.  A reasonable doubt is a doubt based upon reason and common sense.  It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.


10 Minnesota Practice, CRIMJIG 3.03 (2006).  The district court used the following instruction:

            Proof beyond a reasonable doubt does not mean proof beyond all possibility of doubt.  A reasonable doubt is a doubt based on reason and common sense.  It is not a frivolous doubt or one based on impulse or whim.  Proof beyond a reasonable doubt is the type of proof upon which ordinarily cautious and reasonable men and women would act in their most important matters and affairs.  The requirement of proof beyond a reasonable doubt does not, however, mean that the State [of Minnesota] must prove defendant’s guilt to a mathematical or absolute certainty.


            Appellant’s argument is premised on an assertion that the district court’s instruction overemphasized what is not reasonable doubt rather than defining what is.  We disagree.  The district court’s instruction does not contradict CRIMJIG 3.03, and the additional statement about mathematical certainty is permissible.  Smith, 674 N.W.2d at 403.  The district court included the presumption-of-innocence instruction immediately before the reasonable-doubt instruction, and the instructions for the two counts of first-degree criminal sexual conduct also included the standard for reasonable doubt.  Therefore, we conclude that the jury instruction on reasonable doubt, when viewed in its entirety, adequately conveys the legal concept of reasonable doubt.


            Appellant contends that the district court erred in ruling that Minn. Stat. § 244.10, subd. 4 (2006), does not violate the separation-of-powers doctrine.  We review a constitutional challenge to a statute de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            The legislature amended section 244.10 in 2005 following the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which required a jury determination of sentencing factors used to support an upward sentencing departure.  The legislature in 2005 added subdivision 4, the provision appellant challenges, which states:

In bringing a motion for an aggravated sentence, the state is not limited to factors specified in the Sentencing Guidelines provided the state provides reasonable notice to the defendant and the district court prior to sentencing of the factors on which the state intends to rely.


2005 Minn. Laws ch. 136, art. 16, § 3, at 1115.

            The power to establish the punishment for criminal offenses lies with the legislature.  State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982).  The authority to define a criminal offense also lies with the legislature.  See State v. Soto, 378 N.W.2d 625, 630 (Minn. 1985) (“The enactment of criminal laws, the scope of those laws, and the sanctions for their violation, are solely within the legislative function and province.”).  Appellant argues that Minn. Stat. § 244.10, subd. 4, unconstitutionally delegates to the prosecutor, an executive-branch officer, the power to define criminal offenses and their sentences.  We disagree.

            The legislature delegated to the Minnesota Sentencing Guidelines Commission the task of promulgating the sentencing guidelines.  Minn. Stat. § 244.09, subd. 5 (2006).  The guidelines commission, in turn, created a non-exclusive list of mitigating and aggravating factors that could be used to support a departure from the presumptive sentence.  Minn. Sent. Guidelines II.D.2.  Thus, the legislature never retained for itself the authority to determine appropriate departure factors.  And the supreme court recognized early on the authority of judges to craft departure factors not listed in the guidelines.  See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled on other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996).  Appellant now argues, however, that the 2005 amendment creating Minn. Stat. § 244.10, subd. 4, impermissibly delegates this authority to the prosecutor in an individual case.

            The 2005 amendment gives the prosecutor the power only to propose a new aggravating factor by giving pretrial notice of it.  The district court could still determine at the omnibus hearing, upon a proper motion by the defense, not to allow a new aggravating factor on which the prosecutor has given notice to go to the jury.  See Minn. R. Crim. P. 11.04 (providing that the court at the omnibus hearing shall determine whether the law supports presentation to the jury of an aggravating factor on which the prosecutor has given notice).  Since prosecutors had the authority to propose new aggravating factors before the 2005 amendment, that provision has little effect on the operation of the guidelines-departure process.

            Appellant argues, however, that the 2005 amendment in effect allows the prosecutor to create a new criminal offense by alleging an aggravating factor.  He relies on language in United States Supreme Court opinions describing departure factors as “functional equivalent[s]” of elements of the offense.  See Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000); see also Hankerson v. State, 723 N.W.2d 232, 237 (Minn. 2006) (declining to decide whether aggravating factors are functionally elements of the offense for double-jeopardy purposes).  Our supreme court, however, has rejected an extension of Apprendi’s comparison of aggravating factors to elements outside the Sixth Amendment context in which Apprendi made the comparison:

            The Supreme Court in Apprendi made the comparison of aggravating sentencing factors to elements in the context of the adequacy of proof to satisfy the Sixth Amendment’s jury trial requirement, not in the context of giving adequate notice of the charges presented to satisfy the Sixth and Fourteenth Amendments’ more relaxed due process and notice requirements.


State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006).

            In the context of the separation-of-powers doctrine, there is even less basis for ignoring the differences between aggravating sentencing factors and elements.  Here, we are addressing only the prerogatives of the legislature in defining the offense, not any constitutional rights of criminal defendants.  Appellant has not shown why the legislature should not be allowed to distinguish elements from aggravating sentencing factors in this limited context by delegating the development of the latter to others.  See generally State v. King, 257 N.W.2d 693, 697 (Minn. 1977) (holding that legislature could delegate the power to schedule narcotic substances to the pharmacy board).  Indeed, as discussed above, the legislature has historically delegated that task to both the guidelines commission, and, through it, to the courts. 


            Appellant also argues that the four aggravating factors presented to, and found by, the jury, are unconstitutionally vague and that the district court erred in failing to further define the aggravating factors.  Appellant argues, therefore, that the double upward durational departure, to a sentence of 302 months, must be reversed.

A constitutional challenge is reviewed de novo.  Wright, 588 N.W.2d at 168.  Jury instructions are generally reviewed for an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).

            The district court submitted to the jury, and the jury found, four aggravating factors:  (1) personal injury to the victim; (2) particular cruelty; (3) multiple forms of penetration; and (4) violation of the victim’s zone of privacy.  None of these four aggravating factors was further defined.  But appellant’s attorney did not request that any further definitions be given.  Therefore, on appeal we may review the failure to give such instructions only for plain error.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (defendant failed to object to jury instructions and the court applied plain-error review when the instructions were challenged on review).  And, when the jury during deliberations asked if there was a definition of “personal injury” or “zone of privacy,” defense counsel opposed the giving of any further instructions.

The doctrine of invited error precludes appellate review when the appellant has participated in the error by, for example, requesting a jury instruction.  State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997).  The doctrine does not apply to an error of fundamental law.  Id.  And there is some authority for the principle that failure to instruct the jury on an element of the offense is an error of fundamental law.  See State v. Johnson, 374 N.W.2d 285, 288 (Minn. App. 1985) (holding that failure to instruct on element of specific intent was “fundamental error”), review denied (Minn. Nov. 18, 1985).  But even if aggravating factors are the equivalent of elements for this purpose, the district court here instructed the jury on the aggravating factors.  Appellant is merely arguing that further definition was necessary.  He has not shown that the failure to do so was an error of fundamental law.  Thus, we conclude that appellant has waived entirely any claim that the first (personal injury) or the fourth (zone of privacy) aggravating factors should have been further defined.  See State v. Kortness, 284 Minn. 555, 558, 170 N.W.2d 210, 213 (1969) (holding that attorney should not be permitted to court error at trial and then claim it on appeal).

            This court has recently indicated that a sentencing jury should be given a further definition of “particular cruelty.”  State v. Weaver, 733 N.W.2d 793, 802-03 (Minn. App. July 3, 2007), review denied (Minn. Sept. 18, 2007).  But we conclude that the phrase “multiple forms of penetration” is sufficiently specific as to require no further definition.  That aggravating factor, along with one of the two aggravating factors on which appellant’s counsel opposed any further definition, is sufficient to support the upward departure.  Therefore, we need not address whether it was reversible error to fail to define “particular cruelty.”

The phrase “multiple forms of penetration” does not require further definition except for the term “penetration.”  And the jury was instructed on the statutory definition of “sexual penetration.”  See Minn. Stat. § 609.341, subd. 12 (2006) (defining the term).  The evidence at trial established that appellant committed anal, vaginal, and oral penetration.  And this court has held that if there are multiple forms of penetration, that aggravating factor by itself will support a double departure.  State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

We conclude that it is proper to also consider the invasion of the victim’s zone of privacy, an aggravating factor on which defense counsel opposed further definition.  The evidence at trial established that appellant, who did not live in the house with K.G. and was there only to babysit the children, entered K.G.’s bedroom to commit the offense.  The jury certainly could have found that K.G.’s bedroom was a zone of privacy.  See State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992) (holding that victim’s bedroom was a zone of privacy even though the defendant lived in the same house), review denied (Minn. Mar. 19, 1992).  And appellant waived any challenge to the failure to further define this aggravating factor by opposing any further definition in response to the jury’s question.

Because appellant has waived his challenge to the instructions on the aggravating factor on the invasion of the victim’s zone of privacy and has not shown that the factor of infliction of multiple forms of penetration needed further definition and because those factors together adequately support the double upward departure, we conclude that the sentencing departure must be affirmed.


            Appellant argues in his pro se supplemental brief that he received ineffective assistance of counsel because he did not see K.G.’s videotaped testimony until it was played at trial and because his attorney did not call the witnesses he suggested.  Claims of ineffective counsel are mixed questions of fact and law, and therefore, we review them de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

            The right to effective assistance of counsel is part of the Sixth Amendment right to a fair trial under the United States Constitution.  Id.  A party alleging ineffective assistance of counsel must show that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  Id. (quotation omitted).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  A strong presumption exists “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 marks omitted).  Appellate courts with benefit of hindsight may not review counsel’s tactical decisions involving trial strategy.  State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003). 

            The prosecution made a copy of K.G.’s videotaped statement available to appellant’s attorney prior to trial.  Appellant’s counsel contested the videotape’s admissibility, and the district court ultimately ruled that the tape was admissible.  While appellant may have preferred to have viewed the tape before trial, the fact that he did not do so does not amount to a viable claim of ineffective assistance of counsel.  Similarly, appellant contends that his attorney provided ineffective assistance because he did not call certain witnesses, without identifying those witnesses and indicating how that would have altered his defense.  At most, appellant’s dispute is about trial strategy, which does not constitute ineffective assistance of counsel. 



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