State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0183

State of Minnesota,
Respondent,

vs.

Trevor Joseph Steven Kottke,
Appellant.

Filed June 5, 2017
Affirmed in part, reversed in part, and remanded
Kirk, Judge

Dakota County District Court
File No. 19HA-CR-14-2409

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Adam T. Johnson, David R. Lundgren, Lundgren & Johnson, PSC, St. Paul, Minnesota
(for appellant)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
This matter came before us as both a direct appeal from appellant’s convictions of
fourth- and fifth-degree criminal sexual conduct and an appeal from the district court’s
denial of appellant’ s postconviction petition. In his direct appeal, appellant alleged

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evidentiary errors and argued that he was deprived of his right to a fair trial because he was
not given a meaningful opportunity to present a complete defense and the state failed to
disclose exculpatory information. In his postconviction petition, appellant alleged that the
state had committed a Brady1 violation and that newly discovered evidence justified a new
trial. We affirm in part, reverse in part, and remand for a postconviction evidentiary
hearing.
FACTS
According to her trial testimony, on July 7, 2014, S.P. met appellant Trevor Joseph
Steven Kottke in the hallway of their apartment building . The two began to discuss the
apartment building. Appellant had recently moved in and was dissatisfied with his
apartment. S.P. was happy with her apartment and offered to show it to him. S.P. noticed
that appellant was wearing ragged cloth ing and she offered to give him some of her late
husband’s clothes.
Appellant followed S.P. into the bedroom a s she got the clothes out of the closet.
When she turned around, his pants were around his ankles. She asked him to go into the
bathroom to try on the clothes, but he refused. Appellant began touching her breasts and
her back. Appellant had an erection and asked S.P. to perform oral sex. At one point,
appellant shoved S.P. onto the bed. S.P. told appell ant that she was going to go to the
kitchen to get some water; she yell ed at him and was able to push him out the door. She
also threw his clothes into the hallway. S.P. was very upset and frightened; she called her

1 Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196 -97 (1963) ( holding that
suppression of exculpatory evidence by the state is a due -process violation, regardless of
the good faith or bad faith of the prosecution).

3
sister and texted her daughter . She c ontacted her doctor, who was treating her for an
anxiety disorder , for medication. She also told the building caretaker, J.P., that her
neighbor just tried to rape her. S.P. did not contact the police, but J.P. called them on her
behalf.
S.P. was impea ched at trial with a conviction of fraudulently obtaining a
prescription drug, oxycodone, in 2010. There were no witnesses to the alleged assault and
no physical evidence was collected. Appellant, who testified on his own behalf, denied
ever talking to S.P., forcing himself on her, or exposing his penis. The jury found appellant
guilty of both fourth- and fifth-degree criminal sexual conduct.
Appellant filed a direct appeal to this court, but then requested a stay of the appeal
in order to bring a postco nviction petition in the district court. This court granted that
request. Appellant asserted two grounds for postconviction relief, a Brady violation and
newly discovered evidence.
Appellant alleged in his postconviction petition that the state had committed a Brady
violation by failing to disclose that S.P. recanted accusations of domestic abuse she made
against her then-husband, W.L., at a hearing held less than two weeks before this trial.
According to a Hastings Police Department report made on October 10, 2015, S.P. accused
W.L. of hitting her and told police that she was afraid that W.L. was going to kill her. W.L.
was arrested and charged with domestic assault. On October 21, 2015, S.P. appeared in
court with W.L. Under oath, S.P. told the court that she had been on a three-day drinking
binge, had been falling down because she was inebriated, which caused bruising, and on
the third day of the binge, “snapped back into [her] first marriage,” and thought W.L. was

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trying to kill her. She testified that W.L. had never touched her. The district court lifted
the no-contact order and advised S.P. not to drink. At appellant’s trial, S.P. testified that
she had been through treatment in 2010 and 2012, she was proud she had done so, and she
was sober.
Appellant did not realize that S.P. was using a different name until the day of trial;
in the domestic-abuse proceeding, she used her married name, S.L. The domestic-abuse
matter was investigated by the Hastings police department, who also investigated the
allegations against appellant, and was heard in the Dakota County Courthouse, where
appellant’s trial was held, by a different district court judge. At the domestic-abuse matter,
the state was represented by a Hastings city attorney, rather than a Dakota County attorney.
Appellant also alleged that there was newly discovered evidence that “casts
substantial doubt on the veracity of [S.P.].” Appellant cited several ite ms, including:
(1) the domestic-abuse matter described above; (2) W.L.’s allegations that S.P. was highly
intoxicated the night before she testified at appellant’s trial; (3) statements of J.K. and B.K.,
friends of S.P. and W.L., that S.P. was drinking hea vily the night before testifying;
(4) W.L.’s statement that, after the jury verdict, S.P. “was on top of the world laughing and
giggling, saying that she finally got [appellant] who f**ked her over the pills”; and
(5) statements by S.P.’s cousin, J.T., who lived with S.P. after the alleged assault.
Appellant learned about the domestic-abuse matter and the other allegations from J.T., who
contacted defense counsel in August 2016, and stated that S.P. was a “severe alcoholic and
drug addict”; S.P. threatened W.L. “by saying ‘you saw what I did to [appellant] I can do
the same to you”; and S.P. attempted to seduce another man to get out of trouble.

5
The district court denied appellant’s postconviction petition without a hearing,
concluding that there was no Brady violation and that appellant was not entitled to a new
trial based on newly discovered evidence.
D E C I S I O N
I.
In his direct appeal, appellant alleged that the district court erred by permitting
(1) the prosecutor to ask S.P. a leading question about appellant’s tattoo; (2) the
investigating officer to offer opinion testimony; and (3) two police witnesses to refer to
S.P. as a “victim.” Appellant also argues that the district court abused its discretion by
refusing to admit evidence of two comm itment petitions filed with regard to the building
caretaker, J.P.
We review a district court’s evidentiary rulings for an abuse of discretion. State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003). “[T]he appellant has the burden of establishing
that the [district] court abused its discretion and that appellant was thereby prejudiced.” Id.
Defense counsel objected to or sought rulings on each of the alleged error s and, therefore,
this court reviews for harmless error. See Minn. R. Crim. P. 31.0 1; State v. Peltier, 874
N.W.2d 792, 802 (Minn. 2016) (stating that an objected-to error is reviewed under the
harmless-error standard). “[A]n appellant who alleges an error in the admission of
evidence that does not implicate a constitutional right must prove that there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.” Id.
(quotation omitted). A reviewing court can consider (1) the manner in which the evidence
was presented by the state ; (2) the persuasive qua lity of the evidence; (3) whether the

6
evidence was used in closing; and (4) whether defense counsel effectively countered the
evidence. Id. Errors that standing alone may not have affected the verdict may still
cumulatively deprive a defendant of his rig ht to a fair trial. State v. Penkaty, 708 N.W.2d
185, 206 (Minn. 2006). “Cumulative error exists when the cumulative effect of the errors
and indiscretions, none of which alone might have been enough to tip the scales, operate
to the defendant’s prejudice by producing a biased jury.” Id. (quotation omitted).
(1) Defense counsel objected to the prosecutor’s question to S.P., “Do you recall
telling police that that was a skull and crossbones on his chest?” as leading. The style and
placement of appellan t’s tattoo was an issue because S.P. mentioned a distinctive tattoo
during her interviews with police, but at trial S.P. was unable to recall the tattoo or its
placement.
The use of leading questions is discouraged because they have “the effect of
unsworn testimony” by substituting the attorney’s statement for the witness’s testimony.
State v. Brown, 348 N.W.2d 743, 746 (Minn. 1984), abrogated on other grounds by State
v. Ramey , 721 N.W.2d 294, 29 9 (Minn. 2006). But reversal is required only upon a
showing of prejudice. See State v. Ellert , 301 N.W.2d 320, 323 (Minn. 1981). Here,
defense counsel cross -examined S.P. extensively about her conflicting statements and
about a meeting she had with the prosecutor to review her prior statements. This cross -
examination mitigated any prejudice to appellant, and reversal is not required.
(2) Although the district court granted appellant’s motion to prohibit testimony
about “typical rape victim behavior or post -rape symptoms,” t he investigating officer,

7
Sergeant Amb er Wi ech, testified that S.P.’s conduct when she gave her statement was
consistent with that of crime victims.
A lay witness may offer an opinion if it is “rationally based on the perception of the
witness [and] helpful to a clear understanding of the wi tness’ testimony or the
determination of a fact in issue.” Minn. R. Evid. 701. Wiech offered a limited explanation
of why S.P.’s chronology of events in her statement was inaccurate, commenting that crime
victims “are not a witness to a crime, they are actually involved in it. . . . They may not get
the time right of the event but the event that happened can still be correct and consistent
throughout a statement, even if it’s not in a chronological order.” This general statement
about a crime victim’s behavior did not violate the district court’s order limiting testimony
about rape victims. Wiech’s testimony was based on her own observations and was helpful
to the jury. The district court did not abuse its discretion by permitting this testimony.
(3) The district court also granted appellant’s motion to prohibit reference to S.P. as
a “victim.” Wi ech and another police officer each referred to S.P. once as a “victim.”
Although it should not have happened, o n both occasions the use of the word “victim”
appeared to be a mistake, rather than a deliberate attempt to flout the court’s ruling.
“Any error that does not affect substantial rights must be disregarded [as harmless
error].” Minn. R. Crim. P. 31.01. An error that does not implicate a constitutional right is
harmless unless the error “substantially influenced the jury’s verdict.” State v. Expose, 872
N.W.2d 252, 260 (Minn. 2015) (quotation omitted). Two such limited references to S.P.
as a “victim” did not substantially influence the jury’s verdict.

8
(4) Appellant argues that the district court abused its discretion by refusing to admit
evidence of two petitions to civilly commit the witness J.P. on grounds of mental illness.
J.P. was not actually committed. The district court concluded that the potential prejudicial
effect of testimony regarding the commitment petitions outweighed its probative value and
could confuse the jury.
Relevant evidence is generally admissible, while evidence that is not relevant is not
admissible. Minn. R. Evid. 402. Relevant evidence may be excluded if its “probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Minn. R. Evid. 403. “Generally, evidence is relevant and has
probative value when it logically tends to prove or disprove a material fact in issue.” State
v. Mosley, 853 N.W.2d 789, 797 (Minn. 2014).
J.P.’s trial testimony was limited to describing her interaction with S.P., an
encounter she had with appellant, and her role in calling the police for S.P. The fact that
J.P. was the subject of commitment petitions that were filed, stayed, and discharged before
July 7, 2014, does not prove or disprove a material fact in issue.
None of the evidentiary errors alleged by appellant is sufficiently egregious to have
substantially impacted the jury’s verdict, and even the cumulative impact of the alleged
errors was not sufficient to improperly influence or bias a jury. Throughout the trial,
appellant’s attorneys performed effectivel y and acted as skilled advocates for appellant.
These relatively minor errors did not significantly impact the verdict.

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II.
The district court permitted appellant to impeach S.P. with evidence of her 2010
conviction of forging a prescription, but refus ed to permit him to call witnesses to the
criminal act . Minn. R. Evid. 609(a) provides that a witness may be impeached with
evidence of a felony conviction if the probative value of admitting the evidence outweighs
its prejudicial effect, or with evidence of a conviction for a crime of dishonesty or false
statement, regardless of the term of punishment. The district court’s decision is reviewed
for an abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).
“[I]t is the general lack of respect for the law, rather than the specific nature of the
conviction, that informs the fact -finder about a witness’s credibility.” State v. Hill , 801
N.W.2d 646, 652 (Minn. 2011). Appellant was permitted to impeach S.P. with the fact o f
her conviction; more specific details about her conduct were unnecessary. See id. at 651
(noting that rule 609(a) does not “require the impeaching party to offer evidence about the
details or nature of the conviction at the time of impeachment,” so long as the conviction
fits into one of the two categories listed in the rule). The district court did not abuse its
discretion by limiting impeachment of S.P. to the fact of her conviction.
III.
Appellant alleged two discovery violations: (1) the state failed to disclose the details
of S.P.’s interaction with the prosecutor during a trial recess while she reviewed the
statements she made to police to refresh her recollection; and (2) the state failed to disclose
J.P.’s two civil commitment petitions.

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“Whether a discovery violation occurred is an issue of law which this court reviews
de novo.” State v. Palubicki , 700 N.W.2d 476, 489 (Minn. 2005). “We review a trial
court’s decision on whether to impose sanctions for discovery violations for an abuse of
discretion.” Id. Minn. R. Crim. P. 9.01, subd. 1(2) , requires the prosecution to disclose
statements, including written, recorded, or oral statements made by witnesses. The
prosecutor has a continuing duty to disclose “before and during trial.” Minn. R . Crim. P.
9.03, subd. 2(c). But a discovery violation will mandate a new trial only if the defendant
can demonstrate prejudice. Palubicki, 700 N.W.2d at 489. A district court’s decision to
deny a request for a new trial must be reversed if the prosecutorial misconduct, in light of
the whole record, is so inexcusable, serious, and prejudicial that the defendant was denied
a fair trial. Id. “But the misconduct is harmless beyond a reasonable doubt if the verdict
rendered was surely unattributable to the error.” Id.
Because the requirements of rule 9.01 are mandatory, and rule 9.03 states that the
duty to disclose is continuing and includes statements made during trial, the state had a
duty to provide defense counsel with a summary of S.P.’s stateme nts made during the
recess. But viewed in light of the entire record, appellant was not prejudiced by this
discovery violation, particularly in light of defense counsel’s effective cross -examination
of S.P.
Appellant also argues that the state’s failure to disclose J.P.’s commitment petitions
was a Brady violation. See Brady , 373 U.S. at 87, 83 S. Ct. at 1196 -97 (stating that
suppression of exculpatory evidence by the state is a due -process violation, regardless of
the good faith or bad faith of the pros ecution); Pederson v. State , 692 N.W.2d 452, 459

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(Minn. 2005). A Brady violation is defined by three elements: (1) the evidence must be
favorable to the defendant, as either exculpatory or impeaching; (2) the state must have
suppressed the evidence, either willfully or inadvertently; and (3) the defendant must have
been prejudiced as a result. Id. In order for a new trial to be required, the evidence must
be “material,” meaning that there must be a reasonable probability that the resu lt of the
proceeding would have been different had the evidence been disclosed. Id. at 460.
Here, e ven if the prosecutor should have disclosed J.P.’s commitment petition s,
appellant has not demonstrated that he was prejudiced. See State v. Hunt, 615 N.W.2d 294,
300-01 (Minn. 2000) ( “Nondisclosure of evidence that is merely impeaching may not
typically result in the kind of prejudice necessary to warrant a new trial.”).
IV.
We review the district court’s decision to deny a postconviction petition , and its
decision to deny an evidentiary hearing, for an abuse of discretion. State v. Whitson, 876
N.W.2d 297, 303 (Minn. 2016). The district court’s factual findings are reviewed for clear
error and its legal conclusions are reviewed de novo. Id. The postconviction court must
view the alleged facts in the light most favorable to the petitioner. Id. “A postconviction
court may deny a petition without a hearing only if the record, the facts alleged by the
petitioner, and the parties’ arguments conclusively show the petitioner is not entitled to
relief.” Id.
Appellant alleged that the prosecutor’s failure to disclose S.P.’s abuse allegations
against her husband and subsequent recantation was a Brady violation. The district court
concluded that the state h ad no knowledge of the domestic -abuse proceeding and,

12
therefore, it did not suppress evidence. We agree. Although a prosecutor is charged with
the knowledge of others working for the state, such as police officers, in this case there is
no showing that the police officers investigating appellant were aware of the domestic-
abuse allegations made by S.P. over one year later. See State v. Williams, 593 N.W.2d 227,
235 (Minn. 1999) (stating that prosecutor has a duty to disclose favorable evidence known
to others who are acting on the government’s behalf ). Here, the charges against appellant
and the domestic-abuse matter involved different prosecuting authorit ies, judge s, and
police officers, and the victim’s name had changed.
A defendant is entitled to a new trial because of newly discovered evidence if he
can prove that: (1) the evidence was not known to the defendant or defense counsel at the
time of trial; (2) the evidence cou ld not have been discovered through due diligence prior
to trial; (3) the evidence is not “cumulative, impeaching, or doubtful”; and (4) “the
evidence would probably produce an acquittal or a more favorable result.” Bobo v. State,
860 N.W.2d 681, 684 (Min n. 2015) (citing Rainer v. State, 566 N.W.2d 692, 695 (Minn.
1997)). “The quantum of proof required for each Rainer element is a fair preponderance
of the evidence.” Bobo, 860 N.W.2d at 684. The district court concluded that appellant
failed to demonstrate the last three Rainer elements. We disagree with the district court’s
decision as it applies to S.P.’s false allegations of abuse and recantation in the domestic -
abuse proceeding.
If, as the district court concluded, the state could not be charged wi th a Brady
violation because the prosecutor was wholly unaware of the domestic -abuse proceedings,
appellant likewise should not be held to have acted with less than due diligence by failing

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to uncover information about the domestic -abuse proceeding , which occurred less than
three weeks before trial. J.T. was the source of appellant’s knowledge about these events.
It is unclear from this record whether appellant could have learned about S.P.’s false
accusations from J.T. or if J.T. even knew about S.P.’s false accusation before appellant’s
trial. Cf. State v. Mosley, ___ N.W.2d ___, 2017 WL 1491005, at *3 (Minn. Apr. 26, 2017)
(affirming rejection of defendant’s claim of newly discovered evidence because it was
known to defense counsel at the time of trial and was cumulative).
Second, although a new trial may not be based on newly discovered evidence that
is merely “cumulative, impeaching, or doubtful,” this court found “persuasive the rule of
law established in several foreign jurisdictions whereby evidence of prior false accusations
is admissible both to attack the credibility of the complainant and as substantive evidence
tending to prove that the instant offense did not occur.” State v. Goldenstein, 505 N.W.2d
332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In Goldenstein, this
court considered the district court’s exclusion of evidence of prior accusations of sexual
abuse made by child witnesses that were most likely false. Id. Because there was no
conclusive physical evidence, “the veracity of the children when making those statements
was critical to [the] defense.” Id. This court also concluded that “the trial court’s exclusion
of evidence of the prior false allegations violated [the defendants’] constitutional right to
present a defense.” Id. Here, S.P.’s recantation in the domestic -abuse matter w as not
cumulative to the trial evidence nor were her statements doubtful because she made them
under oath and in court. And, under Goldenstein, “evidence of prior false accusations” is
admissible both to impeach and as substantive evidence. Id.

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Finally, S.P. and appellant were the only witnesses to the alleged assault and no
physical evidence was recovered that supported either version of events. Appellant’s
convictions rest ent irely on S.P.’s credibility. Under these facts, there is a reasonable
probability that the outcome of the trial would have been different had the jury known
about S.P.’s false accusations of domestic abuse.
The district court did not hold an evidentiary hearing, which “is unnecessary if the
substance of the affidavit purporting to contain newly discovered evidence, when taken at
face value, is insufficient to entitle the petitioner to the relief requested.” Scherf v. State,
788 N.W.2d 504, 508 (Minn. 20 10). The district court stated in its postconviction order,
“The petition, files, and records of this proceeding conclusively show that [appellant] is
entitled to no relief.” But because there was no postconviction evidentiary hearing, the
record does not demonstrate whether appellant could have discovered this evidence with
due diligence. And, in a close case, “any doubts about whether to conduct a postconviction
hearing should be resolved in favor of the petitioner.” Dobbins v. State, 788 N.W.2d 719,
736 (Minn. 2010). S.P.’s false accusations in the domestic -abuse proceeding raise an
important enough issue to merit an evidentiary hearing, which would give the district court
an additional opportunity to make credibility determinations. See id.
We conclude that the district court abused its discretion by denying appellant’s
postconviction petition as to the newly discovered evidence without holding an evidentiary
hearing. We, therefore, reverse the district court’s postconviction order and remand for a
postconviction evidentiary hearing.
Affirmed in part, reversed in part, and remanded.