A04-2030

State of Minnesota,

Respondent,

vs.

Brent David Lopez,

Appellant.

Filed August 8, 2006

Affirmed

Willis, Judge

Kandiyohi County District Court

File No. K1-03-1738

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

Sergio R. Andrade, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from convictions of second-degree assault, terroristic threats, and two counts of first-degree criminal sexual conduct, appellant argues that the record is insufficient to support his convictions. Appellant also appeals the denial of his petition for postconviction relief, asserting that the postconviction court erred by determining that he did not prove his ineffective-assistance-of-counsel claim and that he is not entitled to a new trial on the basis of newly discovered evidence of allegedly falsified trial testimony. Because we determine that (1) the record is sufficient to support appellant’s convictions, (2) appellant did not prove his claim of ineffective assistance of counsel, and (3) the postconviction court did not abuse its discretion by determining that the trial testimony was not false and that, therefore, appellant was not entitled to a new trial, we affirm.

FACTS

In the early morning hours of November 11, 2003, while visiting J.F. in her apartment, appellant Brent Lopez assaulted J.F. with a knife, threatened to kill her, and repeatedly assaulted her sexually. Lopez and J.F. had been dating and lived in separate apartments in the same building. Shortly after the incident, J.F. went to a hospital emergency room. An examination showed (1) mucosal tearing of the vaginal wall consistent with trauma, (2) that Lopez’s semen was present in J.F.’s vagina and rectum, and (3) that J.F. had a bruise consistent with a human bite mark on her left shoulder blade, a bruise on her upper left arm, and a superficial cut on her left buttock, consistent with a knife wound.

Lopez was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(d) (2002) (dangerous weapon); first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002) (personal injury and force/coercion); kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2) (2002); second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2002) (dangerous weapon); and terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002). After a bench trial, Lopez was convicted of all charges except kidnapping. Lopez unsuccessfully moved for postconviction relief. Lopez appeals his convictions and the denial of his petition for postconviction relief.

D E C I S I O N

Lopez argues that the record is insufficient to support his convictions. When an appellant challenges the sufficiency of the evidence, we review the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.” Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted). We view the record in the light most favorable to the verdict. State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998). The fact-finder is the exclusive judge of witness credibility and determines the weight of the evidence, and we assume that the fact-finder believed the evidence supporting the state’s case and disbelieved contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). When determining the sufficiency of evidence, our review of bench trials is the same as our review of jury trials. Davis, 595 N.W.2d at 525.

Lopez contends that because the case against him was “largely based on circumstantial evidence and boiled down to a ‘he said, she said’ issue,” the evidence does not support any of his convictions. And with regard to his conviction of first-degree criminal sexual conduct, Lopez argues that the evidence was insufficient to support that conviction because the “evidence could be explained by consensual sexual intercourse.” As an initial matter, because J.F., the victim, testified for the state, we determine that the case against Lopez was based on direct evidence. We further determine that the state presented substantial evidence supporting Lopez’s convictions. J.F. testified that Lopez raped her four times in her apartment. She described how Lopez raped her both vaginally and anally. The emergency-room doctor who examined J.F. testified that there was mucosal tearing along the side of J.F.’s vaginal wall and that such tearing is consistent with trauma and is inconsistent with consensual intercourse. DNA testing showed that semen found in J.F.’s vagina and rectum was consistent with Lopez’s DNA. J.F. further testified that Lopez threatened her with a knife and cut her sweater and buttocks with the knife. The cut sweater was admitted into evidence, and the doctor testified that the laceration on J.F.’s buttocks was consistent with being cut by a sharp object. J.F. also testified that when Lopez put the knife down, she was able to grab it and that when he then began fighting her for it, her hand was cut. Pictures of the cut on her hand were admitted into evidence. A BCA forensic scientist identified a mixture of J.F.’s and Lopez’s DNA on the knife. J.F. also testified that Lopez bit her on the back when he was trying to retrieve the knife; the emergency-room doctor testified that the bruise on J.F.’s back was consistent with having been made by a human mouth.

Lopez’s testimony regarding the events of that evening was inconsistent. He first denied penetrating J.F vaginally but later testified that they had vaginal intercourse for two minutes. Lopez’s version of the events failed to explain the presence of his semen in J.F.’s rectum, her mucosal tearing, and her other injuries. When there is conflicting testimony, we must assume that the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Thus, viewing the evidence—which includes direct testimony from J.F. and supporting medical testimony from the emergency-room doctor—in the light most favorable to the verdict, we conclude that the record supports the convictions.

II.

Lopez next argues that the postconviction court erred by denying him relief on his claim that he was deprived of effective assistance of trial counsel. Lopez asserts that his trial counsel was ineffective for (1) failing to challenge probable cause as stated in the complaint, (2) making Lopez decide whether there were any issues for an omnibus hearing, (3) having little contact with Lopez, and (4) failing to advise Lopez of the right to a jury trial.

A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). A defendant “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068 (1984)).

We conclude that Lopez has not proved his claim of ineffective assistance of counsel. First, Lopez’s brief fails to explain why he believes that the complaint was not supported by probable cause. Thus, we determine that Lopez has not proved that defense counsel’s performance fell below an objective standard of reasonableness by not challenging probable cause. And further, Lopez has failed to show how, but for his counsel’s alleged error, the result of the proceeding would have been different. In any event, because we conclude that the evidence is sufficient to support Lopez’s convictions, it is clear that the complaint was supported by probable cause. See State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995) (determining that probable-cause argument was irrelevant after conviction because the standard for the sufficiency of the evidence to support a conviction “is much higher than probable cause”), review denied (Minn. Mar. 21, 1995).

Lopez next claims that his defense counsel “put the onus on [Lopez] to decide whether any omnibus issues existed.” But Lopez cites nothing in the record to support this assertion. And a review of the record shows that at the postconviction hearing, Lopez in fact testified that he believed that defense counsel told him that an omnibus hearing was not necessary. Thus, because Lopez has not shown that defense counsel’s performance fell below an objective standard of reasonableness or how he was prejudiced by defense counsel’s alleged error, we conclude that the postconviction court did not err by denying Lopez relief on this ground.

Lopez also asserts that defense counsel “had very little contact” with him. At the postconviction hearing, Lopez testified that he met with defense counsel three times. But Lopez’s defense counsel, whom Lopez hired two to three months before trial, testified at the postconviction hearing that he met with Lopez approximately six times. We determine that even if Lopez and defense counsel met only three times, Lopez is not entitled to relief because he has not explained how this would fall below an objective standard of reasonableness or how the result of his trial would have been different if he had met more often with defense counsel.

Lopez further argues that defense counsel “did not fully advise him of his constitutional right to have a jury trial” and that Lopez “did not fully understand the consequences of his decision to waive a jury trial.” But the record shows that before trial, Lopez filed a written waiver of jury trial and that before the trial started, the district court examined Lopez extensively about his decision to waive a jury. Lopez told the district court that he had consultedwith defense counsel about his right to a jury trial and that he had been fully advised about the right. Lopez also told the district court that he had “had enough time to meet with [defense counsel] about this whole area of his right to a jury trial.” Further, at the postconviction hearing, both Lopez and defense counsel testified that they had discussed whether to waive a jury trial.

The district court did not err by denying relief on Lopez’s claim of ineffective assistance of counsel.

III.

Lopez also argues that the postconviction court erred by denying him a new trial on the basis of newly discovered evidence in the form of allegedly falsified testimony. The three-pronged Larrison test is used in Minnesota to determine whether a claim of this sort of newly discovered evidence requires a new trial. Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001); State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982) (adopting the three-prong test described in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928)). Under this test, for a petitioner to receive a new trial “(1) the court must be reasonably well-satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.” Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002). We review a district court’s application of the test for an abuse of discretion. Dukes v. State, 660 N.W.2d 804, 818 (Minn. 2003). “We will not substitute our view of the evidence when there is adequate evidence to sustain the postconviction court’s findings of fact.” Pederson v. State, 692 N.W.2d 452, 461-62 (Minn. 2005).

Lopez alleges that newly discovered evidence shows that J.F. gave false testimony. On February 7, 2005, a friend of Lopez’s, Martina Wold, submitted an affidavit claiming that in August 2004, J.F. told her that J.F.’s allegations that Lopez sexually assaulted her were false. At the postconviction hearing, Wold testified that in September or October of 2004, she approached J.F. in a parking lot and asked her “why did she do that to such a good person?” According to Wold, J.F. told her that the allegations against Lopez were not true.

The postconviction court determined that Lopez failed to demonstrate that J.F.’s trial testimony was false, finding that (1) J.F.’s trial testimony was credible and largely consistent with the physical evidence, (2) the physical evidence showed that J.F. had experienced vaginal mucosal tearing consistent with trauma, (3) the physical evidence was “entirely inconsistent” with Lopez’s testimony, and (4) Wold’s affidavit and postconviction-hearing testimony did not demonstrate the falsity of J.F.’s trial testimony because it was “vague and inconsistent with the physical evidence.” Because there is adequate evidence to sustain the postconviction court’s findings of fact and we defer to a postconviction court’s assessment of witness credibility, we determine that the postconviction court did not abuse its discretion by determining that J.F. did not give false testimony at trial and that Lopez therefore failed to satisfy the first prong of the Larrison test. See Opsahl v. State,710 N.W.2d 776, 782 (Minn. 2006) (determining that a postconviction court is in a “unique position to assess witness credibility” and that, therefore, an appellate court must give “considerable deference” to a postconviction court’s assessment of witness credibility).

Affirmed.