Armando DeLaCruz, Jr., petitioner, Appellant,

This opinion will be unpublished and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
A17-0546

Armando DeLaCruz, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 14, 2018
Affirmed
Bratvold, Judge

Waseca County District Court
File No. 81-CR-13-771

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Brenda Miller, Waseca County Attorney, Waseca, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Florey ,
Judge.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
This is appellant Armando DeLaCruz Jr.’s second appeal from his conviction of
multiple counts of criminal sexual conduct and other offenses. In the first appeal, we
granted DeLaCruz relief, reversing the district court’s decision that it lacked jurisdiction to
hear his motion for a new trial. State v. DeLaCruz, 884 N. W.2d 878, 886-88 (Minn. App.
2016). On remand, the district court denied his motion for a new trial on the merits.
DeLaCruz’s second appeal challenges the district court’s denial of his motion for a new
trial. He also argues that he received ineffective assistance of counsel during the remand
proceedings. We conclude that the district court did not err when it denied him a new trial
for two reasons. First, the prosecutor did not commit a Brady violation because the
allegedly suppressed evidence was not material. Second, the allegedly suppressed evidence
was not newly discovered. We also deny DeLaCruz’s ineffective-assistance-of-counsel
claim on the merits. Thus, we affirm.
FACTS
The facts of this case are detailed in our opinion resolving DeLaCruz’s first appeal.
See DeLaCruz, 884 N.W.2d at 881-83. We summarize the facts that are relevant to the
issues on this second appeal. According to trial testimony, on the evening of September 13,
2013, C.O. was at home watching television in her bedroom while her two children were
sleeping. After hearing a noise, she looked around and found a man in the hallway , with
clothing covering his face; he was later identified as DeLaCruz. C.O. retreated to a
bedroom and closed the door, but DeLaCruz forced his way inside. Although C.O.
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struggled with DeLaCruz, and bit him twice, DeLaCruz threatened to harm her children if
she did not comply with his demands. He bound her arms and feet, touched her breasts and
buttocks, and moved her to the bathroom. There, DeLaCruz continued to grope C.O. and
forcefully penetrated her vagina three separate times. During the sexual assault, C.O.
recognized DeLaCruz as someone she had met earlier through an acquaintance. C.O.
eventually escaped and reported the assault to the police. When police arrested DeLaCruz,
he had a bite mark on his left forearm, scratches on his nose, a mark on his right arm, a
bloody scrape on his wrist, and a scratch on his right elbow.
The Waseca County Attorney’s Office charged DeLaCruz with 30 counts, including
1 count of kidnapping, 2 counts of terroristic threats, 4 counts of first-degree burglary, 1
count of false imprisonment, 10 counts of first-degree criminal sexual conduct, 11 counts
of second-degree criminal sexual conduct, and 1 count of fifth-degree assault. Following a
ten-day trial, a jury found DeLaCruz guilty of 20 counts, and not guilty of 8 counts. Before
trial, the state had dismissed 2 counts.
At a hearing to address posttrial motions, including DeLaCruz’s pro se motion for
a new trial, the district court informed the parties that it had received “an old court file
containing a police report” in which an officer documented that C.O. had accused him of
sexual assault (“the 2006 allegation”). The court file (No. 81-CR-06-223), which is part of
our appellate record, includes the “tab” charges against C.O., along with two police reports.
Both police reports described C.O. as intoxicated and upset about a custody dispute
involving her son. The reports also stated that C.O. repeatedly yelled and refused to follow
the officers’ instructions. The reports noted that an officer and a deputy brought C.O. to
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the ground to control her. In the deputy’s report, he described handcuffing C.O. while she
was on the ground and C.O.’s subsequent behavior, including kicking and screaming, as
the deputy attempted to seat her in his squad car. After anothe r struggle inside the squad
car, C.O. remained in the back seat.
As the deputy began to drive away, C.O. began kicking at the partition and window
and said the deputy had touched her “punanny” or “pussy .” The deputy returned to the
scene and asked that another officer transport C.O. As C.O was moved to a different
vehicle, she shouted that the deputy was “going down” for touching her inappropriately.
The deputy denied C.O.’s accusations in his report. C.O. pleaded guilty and was convicted
of criminal damage to property and obstruction of legal process. Nothing in this court file
indicates that any further action was taken regarding C.O.’s assault allegations against the
deputy.
After the district court told the parties about the allegation in C.O.’s 2006 court file,
DeLaCruz amended his motion for a new trial. Although the prosecuting attorney had
disclosed C.O.’s criminal history, including her 2006 convictions, he did not disclose the
2006 allegation. In his amended motion, DeLaCruz argued that failure to disclose the 2006
allegation was a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97
(1963). DeLaC ruz also sought a new trial under Minn. R. Crim. P. 26.04, subd. 1(1),
alleging that the 2006 allegation was newly discovered evidence, among other issues. The
state argued that the motion was untimely and that no Brady violation had occurred, in part,
because the 2006 allegation was not material evidence.
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The district court denied DeLaCruz’s new trial motion, reasoning that the motion
was untimely and it lacked jurisdiction; therefore, it declined to address the merits. The
district court imposed a sentence of 360 months for first-degree criminal sexual conduct in
violation of Minn. Stat. § 609.342, subd. 1(e) (i) (2012), along with concurrent sentences
for first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (2012), and
kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (2012).
DeLaCruz appealed the denial of his motion for a new trial. In the first appeal, this
court held that the district court had jurisdiction over the new trial motion, reversed, and
remanded the case for a hearing on the new- trial motion. See DeLaCruz, 884 N.W.2d at
888. We also rejected DeLaCruz’s pro se claims, including ineffective assistance of
counsel, prosecutorial misconduct, irregularity of the proceedings, and sufficiency of the
evidence. Id. at 888-90.
On remand, the district court held a hearing to address DeLaCruz’s new trial motion
on the merits. Before the hearing, DeLaCruz’s defense counsel filed an affidavit stating
that the public defender’s office had represented C.O. in the 2006 case and, at one time,
had a copy of the 2006 court file, which included the 2006 allegation, but had destroyed
the copy consistent with office policy.
At the hearing, the prosecuting attorney told the court that, before trial, it informed
the defense of “all of [C.O.’s] convictions,” including the convictions from the 2006 court
file. The prosecuting attorney also stated that the prosecutors working on DeLaCruz’s case
were unaware of the 2006 allegation and that the 2006 court file was not in their file for
the DeLaCruz case. But the prosecuting attorney acknowledged that, while preparing for
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the new trial hearing, she had found a copy of the 2006 court file, including the police
reports about the 2006 allegation, in the county attorney’s “storage unit.” In response,
DeLaCruz’s counsel acknowledged that she was aware of C.O.’s 2006 convictions, but
argued that neither side anticipated that the court file “would contain anything regarding
criminal sexual conduct.”
In a written order, the district court denied the new-trial motion after determining
that no Brady violation had occurred and that a new trial was not appropriate under rule
26.04, subd. 1(1). DeLaCruz appeals.
D E C I S I O N
I. The district court did not err in determining that the prosecution did not
commit a Brady violation when it failed to disclose the 2006 allegation because
the evidence was not material.

“[T]he suppression by the State, whether intentional or not, of material evidence
favorable to the defendant violates the constitutional guarantee of due process.” Zornes v.
State, 903 N.W.2d 411, 417 (Minn. 2017) (alteration in original) (quotation omitted). Also
known as a Brady violation, the test for determining if a violation has occurred includes
three elements:
(1) the evidence must be favorable to the defendant because it
would have been either exculpatory or impeaching;
(2) the evidence must have been suppressed by the prosecution,
intentionally or otherwise; and
(3) the evidence must be material—in other words, the absence
of the evidence must have caused prejudice to the defendant.

Id. “[T]he remedy for a Brady violation is a new trial.” State v. Hunt, 615 N.W.2d 294, 299
(Minn. 2000).
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Under Brady, evidence is material if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Zornes, 903 N.W.2d at 418 (quotation omitted). “A reasonable probability is
one that is sufficient to undermine confidence in the outcome.” Id. (quotation omitted).
Evidence that would have been “possibly useful,” but “unlikely to have changed the
verdict” is not material under this prong. Id. Appellate courts “make a materiality
determination by considering the effect the undisclosed evidence would have had in the
context of the whole trial record.” Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).
DeLaCruz argues that the district court erred by denying his motion for a new trial
because the state committed a Brady violation when it did not disclose the 2006 allegation,
even though the failure was inadvertent. The district court rejected this argument, in part ,
because it determined that the evidence would not have materially undermined the case
against DeLaCruz. We agree with the district court’s materiality analysis for two reasons:
(1) DeLaCruz impeached C.O. at trial, and the 2006 allegation was not materially different
impeachment evidence; and (2) independent evidence besides C.O.’s testimony supported
DeLaCruz’s guilt.
1
Because materiality is dispositive, we address only the third Brady element. We
review the district court’s analysis de novo because “a Brady materiality analysis involves
a mixed question of law and fact.” Zornes, 903 N.W.2d at 417 (quotation omitted).

1 The parties dispute whether the 2006 allegation was admissible. Because we determine
that even if the 2006 allegation was admissible, it would not have been material, we do not
reach this issue.
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1. The 2006 allegation was not material evidence requiring a new trial
because DeLaCruz impeached C.O. during trial.

In State v. Miller, the supreme court held that no Brady violation occurred where
the state failed to provide the defendant with complete copies of a witness’s criminal
history. 754 N.W.2d 686, 706 (Minn. 2008). The undisclosed evidence would have
revealed that the witness had been convicted of four felonies. Id. The supreme court held
that the state suppressed evidence and that the evidence was exculpatory. Id. But the
supreme court reasoned the evidence was not material because the witness’s credibility
nonetheless was “successfully impeached at trial.” Id. The supreme court pointed out that,
during trial, the witness “admitted to lying to the police and to being unreliable because he
was high on methamphetamines when the events took place.” Id.
Similarly, DeLaCruz impeached C.O. during trial. In three separate instances,
DeLaCruz adduced evidence that C.O. was either untrustworthy or unreliable. First,
DeLaCruz offered evidence that C.O. had been drinking on the night of the assault, as well
as evidence that C.O. had recently taken amphetamines because a urine test after the assault
showed “the highest level” of amphetamines in her system.
Second, DeLaCruz offered evidence from which he argued that C.O. lied about her
use of Adderall. C.O. testified that she took Adderall just “one time” a day or so before her
assault, and otherwise had never before taken Adderall or had since used the drug. But
C.O.’s friend testified that C.O. “consistentl y use[d] Adderall during 2013.” DeLaCruz’s
counsel argued during closing that, “[C.O.] did not tell you the truth about her use of
Adderall. How can you believe her about anything[?]”
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Third, DeLaCruz offered evidence that C.O. intentionally did not inform
investigators about her use of Adderall. C.O. testified that she did not have a prescription
for Adderall. C.O. also admitted that she intentionally mentioned her use of diet pills to
investigators to explain the amphetamine test results because she was trying to avoid
incriminating the friend who supplied her with the Adderall.2 C.O. admitted at trial that
she did not disclose her use of Adderall around the date of the assault to the prosecutor
until the week before trial. DeLaCruz’s attorney raised C.O.’s omissions during closing
arguments.
We conclude that the 2006 allegation had limited impeachment value when
compared to evidence showing that C.O. was untruthful while on the stand and to state
officials during the investigation. The 2006 allegation was remote in time and involved
significantly different facts. Notably, C.O. never pursued a complaint against the deputy
about the conduct described in the 2006 allegation. Further, C.O. had a motive to fabricate
allegations in 2006—to avoid criminal prosecution—and similar motives are not apparent
here.
When we consider the impact of DeLaCruz’s successful impeachment of C.O.’s
trustworthiness and credibility during trial, as well as the low probative value of the 2006
allegation, we are persuaded that the 2006 allegation was not material. There is no
reasonable probability that, had the 2006 allegation been disclosed to the defense before

2 At trial, C.O. stated that she “underst[ood] that Adderall contains amphetamine.”
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trial, the outcome of the trial would have been different. Thus, our confidence in the jury’s
verdict is not undermined. See Zornes, 903 N.W.2d at 418.
2. The 2006 allegation was not material evidence requiring a new trial
because independent evidence suggested DeLaCruz’s guilt.

In State v. Jackson, the supreme court held that no Brady violation occurred even
though the prosecutor failed to provide the appellant with the criminal record of one of the
state’s key witnesses. 346 N.W.2d 634, 636-39 (Minn. 1984). The supreme court reasoned
that the appellant was not prejudiced by the suppressed evidence because the witness’s
testimony “was not the only damni ng evidence” against him , and this decreased “the
likelihood that any [evidence suppression] was prejudicial.” Id. at 638.
Here, independent evidence corroborated C.O.’s account that DeLaCruz assaulted
her. First, the nurse who examined C.O. in the early morning of September 14, 2013, said
that C.O. appeared “very anxious and afraid.” The medical examination showed that C.O.
had scratches, abrasions, and bruises on her body, as well as “redness” and “abrasions”
around her vagina and uterus, not usually seen in a “normal patient.” The nurse also found
swelling around C.O.’s labia. Second, C.O.’s neighbors testified that on the night of
September 13, she came to their house “screaming,” appeared “frantic,” and wore only a
“little towel.” Third, a detective testified that he found damage to C.O.’s bedroom door, a
broken “toilet paper holder frame,” and other physical evidence corroborating C.O.’s
testimony about the assault. Fourth, police found wounds on DeLaCruz that matched the
wounds that C.O. said she had inflicted on her attacker, including “a possible bite mark.”
Finally, DeLaCruz changed his story about how he had received his injuries. Initially , he
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said that he received his injuries in a fight. Later, he said that he had received his injuries
by falling off a bike.
Accordingly, we conclude that the suppression of the 2006 allegation did not
prejudice DeLaCruz. As a result, DeLaCruz has not satisfied the third Brady prong and no
Brady violation occurred. See Zornes, 903 N.W.2d at 417 (holding that, to prevail, an
appellant “must meet all three requirements to establish a Brady violation”).
II. The district court did not abuse its discretion by denying DeLaCruz a new trial
under Minn. R. Crim. P. 26.04.

DeLaCruz also moved for a new trial, arguing that the 2006 allegation was newly
discovered evidence under Minn. R. Crim. P. 26.04, subd. 1(1). To succeed on this ground,
DeLaCruz needed to show:
(1) that the evidence was not known to him or his counsel at
the time of trial, (2) that his failure to learn of it before trial was
not due to lack of diligence, (3) that the evidence is material
(or, as we have sometimes said, is not impeaching, cumulative
or doubtful), and (4) that the evidence will probably produce
either an acquittal at a retrial or a result more favorable to the
petitioner.

Race v. State, 417 N.W.2d 264, 266 (Minn. 1987). We review a district court decision not
to grant a new trial based on newly discovered evidence for abuse of discretion. Rainer v.
State, 566 N.W.2d 692, 695 (Minn. 1997).
DeLaCruz’s argument fails the third requirement for a new trial under Minn. R.
Crim. P. 26.04, which provides that the new evidence must be material and not
“cumulative, impeaching, or doubtful.” Id. Here, the 2006 allegation would have served no
other purpose than to impeach C.O.’s credibility. Evidence that is “merely impeaching”
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does not satisfy the third requirement. Pippitt v. State, 737 N.W.2d 221, 228 (Minn. 2007).
As a result, the district court did not abuse its discretion by denying DeLaCruz’s motion
for a new trial under Minn. R. Crim. P. 26.04.3
III. We deny DeLaCruz’s ineffective-assistance-of-counsel claim.

DeLaCruz appears to ask this court to remand for additional proceedings to
determine whether DeLaCruz’s previous counsel provided ineffective assistance during the
remand proceedings. It seems that DeLaCruz claims that his previous attorney failed to ask
for an evidentiary hearing to allow the district court to determine whether C.O.’s 2006
allegation against the officer was true, contending that this would further support his
Brady-violation claim.4
To prevail on an ineffective-assistance-of -counsel claim, “an appellant must
demonstrate 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.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (quotation omitted).
Our review of the record indicates that DeLaCruz did not raise an ineffective-
assistance-of-counsel argument to the district court, and the district court did not address

3 The district court also determined that a new trial was not warranted based on “the
interests of justice” or “prosecutorial misconduct.” DeLaCruz does not dispute these
determinations on appeal.

4 Typically, “The Knaffla rule bars postconviction claims of ineffective assistance of trial
counsel after direct appeal except when the merits of the claim cannot be determined from
the district court record and requires additional evidence, such as that involving attorney -
client communications.” Erickson v. State, 725 N.W.2d 532, 535-36 (Minn. 2007)
(quotation omitted). Here, DeLaCruz’s ineffective-assistance claim is not barred because
he relies on the hearing that occurred after this court remanded his case.
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it. Generally, this court will not “decide issues which are not first addressed by the trial
court and are raised for the first time on appeal even if the issues involve constitutional
questions regarding criminal procedure.” State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990)
(quotation omitted). But we may address an ineffective-assistance- of-counsel claim if the
record before us is sufficient. See State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App.
2017) (citing Anderson v. State, 830 N.W.2d 1, 10 (Minn. 2013)).
DeLaCruz’s ineffective-assistance claim fails to satisfy the prejudice requirement.
To support his claim, DeLaCruz contends that his attorney failed to request an evidentiary
hearing related to his Brady-violation claim. Because we have rejected the Brady violation
and our reasons for doing so would not have been affected by an evidentiary hearing,
DeLaCruz cannot show that the outcome of his Brady claim “would have been different”
but for the alleged ineffective assistance. See Rhodes, 657 N.W.2d at 842. Thus, we deny
his claim on the merits.
Affirmed.