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This opinion will be unpublished and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
A17-1322

State of Minnesota,
Respondent,

vs.

Scott Alan Kepner,
Appellant.

Filed June 18, 2018
Affirmed
Halbrooks, Judge

Chisago County District Court
File No. 13-CR-16-226

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

Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant City Attorney, Center
City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
On appeal from his conviction of second-degree criminal sexual conduct, appellant
contends that (1) the state committed a Brady violation by not disclosing the existence of

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a diary authored by the victim before appellant’s first trial and (2) the district court abused
its discretion by not excluding the evidence of the diary at appellant’s second trial. We
affirm.
FACTS
After K.M. and her husband divorced in 2005, she and B.M., their grade-school-
aged daughter, remained in Minnesota. B.M.’s father moved to Illinois. To cover living
expenses, K.M. rented the basement of her home.
Appellant Scott Alan Kepner began renting the basement of K.M.’s home in
December 2011. Kepner, K.M., and B.M. shared the kitchen, but Kepner ’s bedroom and
living area were in the basement. On the weekends, Kepner’s middle-school-aged son
often visited him. Kepner’s son and B.M. spent considerable time together riding Kepner’s
son’s four wheeler, going to movies, and sharing meals under Kepner’s supervision.
One evening between January 1, 2012 and January 31, 2013 , Kepner told B.M. to
choose a movie that they could watch alone in the basement. K.M. was upstairs working
on the computer. Midway through the movie, Kepner took B.M.’s hand, slid it down inside
his pants, and forced her to grab and squeeze his penis. He also touched her breasts and
vagina, both over and underneath her clothes. The touching lasted for “[m]aybe 45
minutes.”
In order to keep B.M. from telling her mom what had happened, Kepner offered
B.M. the chance to drive the four wheeler or go to a movie. B.M. chose driving the four
wheeler and did not say anything to her mom. Kepner moved out a month or two later
after his rent increased; B.M. moved around the same time to live with her dad.

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B.M. subsequently recorded her recollection of the basement incident in two places.
First, she wrote an entry in her diary , referencing a “flashback” to when Kepner touched
B.M. in her private area and made her touch him. Her mother found the diary entry
sometime after B.M. moved to live with her dad. But when she asked B.M. about it, B.M.
was vague, and she did not pursue it further. B.M. also wrote a letter saying that “what
[Kepner] made [her] do was a crime” and that she had been experiencing flashbacks “[e]ver
since that day when [they] were sitting on the couch.” In March 2015, B.M.’s father found
the letter when doing B.M.’s laundry and reported it to local law enforcement. B.M. was
interviewed by a detective and later spoke to a child -abuse and forensic investiga tor in
Illinois. B.M. explained what happened in the basement and stated that she wrote about
the incident in both the letter and her diary.
The state charged Kepner with second-degree criminal sexual conduct under Minn.
Stat. § 609.343, subd. 1(a) (2010). At trial, B.M. testified about the basement incident and
the letter that her dad found. She also testified that her mom “found this diary that I had to
write . . . when I was younger.” Kepner’s defense theory was that B.M. fabricated the story
because she was upset that she had to move to her dad’s home and because she did not get
along with her parents.
The district court declared a mistrial after the jury deadlocked during deliberations.
B.M. then provided her diary to the prosecutor. Approximately 29 days before the second
trial, the prosecutor disclosed to Kepner excerpted copies of three diary entries . Kepner
moved in limine to exclude the diary entries from the second trial, arguing that the

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prosecutor had committed a Brady violation by not disclosing the diary to Kepner before
the first trial.
At the motion hearing, Kepner argued that the diary had both exculpatory and
inculpatory value. Kepner argued that the diary had exculpatory value because the third
entry supported his defense theory that B.M. fabricated the basement incident as a way to
attract attention from her parents . He argued that it had inculpatory value in that it
potentially corroborated “what [B.M.] indicated occurred previously with Mr. Kepner.”
The prosecutor advised the district court that she did not realize the value of the
diary until B.M. mentioned it in her testimony in the first trial. The prosecutor maintained
that she had not committed a Brady violation because (1) the diary had not been in the
possession of the state or anyone working for the prosecution team and (2) the diary did
not have exculpatory value. The prosecutor asserted that the diary did not have exculpatory
value because the state “would not have known what the defense’s theory of the case was
prior to the first trial, and so it’s not like it would have been something that was readily
obvious to the State that it needed to be disclosed.”
The district court offered Kepner a continuance to review the diary in order to
prepare a defense and determine if he wanted to retain an expert. Kepner’s counsel advised
the district court that she no longer worked in the jurisdiction, so it would be “really
difficult for [her] to consider a continuance.” After consulting with his counsel, Kepner
declined the continuance.
The district court denied Kepner’s motion in limine, concluding that the prosecutor
could introduce the three diary entries at the second trial. The prosecutor admitted into

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evidence the diary entries and the letter that B.M. wrote to Kepner. Kepner ’s theory of
defense in the second trial was the same as in the first trial—that B.M. fabricated the story
for parental love and attention and that the third diary entry supported that assertion. The
jury found Kepner guilty , and the district court sentenced Kepner to a stayed term of 36
months’ imprisonment. This appeal follows.
D E C I S I O N
I.
Kepner argues that the state violated his due-process rights and committed a Brady
violation by not investigating and producing B.M.’s diary before the first trial. We review
constitutional issues that raise due-process concerns de novo. State v. Heath, 685 N.W.2d
48, 55 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).
The state has an affirmative duty in criminal cases to disclose evidence that is
favorable and material to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196-97 (1963); State v. Williams , 593 N.W.2d 227, 23 4 (Minn. 1999). To constitute a
Brady violation, the following three requirements must be established:
(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;1 and
(3) the evidence must be material—in other words, the absence
of the evidence must have caused prejudice to the defendant.

1 The first two components of Brady are embodied in the Minnesota Rules of Criminal
Procedure. Pederson v. State, 692 N.W.2d 452, 460 (Minn. 2005). Minn. R. Crim. P. 9.01
provides that the state must disclose any written or recorded statements which relate to the
case “within the possession or control of the prosecution” as well as any “[m]aterial or
information in the prosecutor’s possession and control that tends to negate or reduce the
defendant’s guilt.”

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Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017) (quotation omitted). “Because a Brady
materiality analysis involves a mixed question of law and fact, [appellate courts] review a
district court’s materiality determination de novo.” Id. (quotation omitted).
The district court ruled as follows concerning the alleged Brady violation:
The Court is concerned with the lack of investigation on the
part of the State relative to the journal, given the information
provided in [the] June 8, 2015 interview with the alleg ed
victim. Still, this Court does not believe the circumstances here
amount to a discovery violation, or directly contravene the U.S.
Supreme Court’s rule in Brady. The lack of disclosure by the
State seems to have been the result of the prosecution’s ow n
lack of investigation, and the journal does not appear to be
material to guilt or punishment of [Kepner], or to negate or
reduce his guilt in this case, so as to constitute exculpatory
evidence. Moreover, [Kepner] consulted with counsel and then
did not request any continuance of Trial in this matter in the
course of the Hearings on February 17 and February 21, 2017.
For these reasons, the Court will allow entry of the journal into
evidence at Trial.

A. Favorable Evidence
The diary contains the following three entries:
Today is January 4 and [my mom’s boyfriend] keeps calling
me names, picking on me and then saids you [know] if it were
up you’d be at your dad and also saids me and [my mom] live
together without me and lend me to my dads. So he is so unfair.
Feelings = mad sad middle.

Scared for life. Today is January 12 and I had a horrible flash
back. About 1 year ago we had a room [m]ate named [S]cott
and he was aw[e]some untill Oct-27 when he touched in private
area and made [me] touch him. [T]oday I heard [our] new
room[m]ate . . . and his friend making sexual noises gross.
Feelings—ew grossed out[.]

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Today is April-30-2015 I live with my dad now and it sucks[.]
I really hate him[.] I screwed up with my mom and now living
with him. I am 11 years old and when I lived with my mom I
did rollerskating at Roller Garden in Saint Louis Park . . . . I
wish I could rewind but can’t change the pas t. Feeling—
bummed out.

Kepner contends that the third entry is exculpatory because it supports his theory
that B.M. fabricated the story involving the incident in the basement. He also argues that
the third diary entry is at least impeaching because it differs from the version of events that
B.M. provided to the investigator during her interview. The state counters tha t the diary
does not have exculpatory value because its contents “do nothing that tends to negate or
reduce [Kepner’s guilt]” and do not directly impeach or contradict B.M.’s trial testimony.
We disagree with Kepner’s assertion that the third entry is exculpatory . Although
the third entry establishes that B.M. did not enjoy living with her father at the time, it does
not indicate that B.M. fabricated the basement story to attract love from her parents.
Neither does the third entry have impeachment value . It is true that “[w]hen the
reliability of a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within the Brady rule.” Pederson, 692
N.W.2d at 460 ( quotation omitted ). But here, the third diary entry makes B.M. more
credible. B.M. told the investigator that her father worried “too much,” that he was
“annoying,” and that he “puts everything on everybody else.” The third entry is consistent
with those statements. It does not provide a basis to impeach B.M.

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B. Suppression by the State
Even if the diary had exculpatory or impeachment value, Kepner cannot establish
that the diary was suppressed by the state. Kepner does not assert that the prosecutor
possessed B.M.’s diary entries or letter before the first trial. The prosecutor disclosed the
diary to Kepner when she received it—at least 25 days before the hearing on Kepner’s
motion in limine and 29 days before the second trial. See State v. Rainer, 411 N.W.2d 490,
495 (Minn. 1987) (concluding that report disclosed 13 days before the beginning of the
defendant’s case did not constitute a serious discovery violation).
C. Material
But even if the prosecutor had suppressed the diary, Kepner cannot establish that
the diary entries were material. “Evidence is material under Brady 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 s omitted). “A
reasonable probability is one that is sufficient to undermine confidence in the outcome.”
Id. (quotations omitted). The remedy for a Brady violation is a new trial . Id. But a new
trial is not required “simply because a defendant uncovers previously undisclosed evidence
that would have been possibly useful to the defendant but is unlikely to have changed the
verdict.” Id. (quotation omitted). We evaluate materiality in light of the entire trial record.
Id. at 417.
Kepner cannot establish that the diary entries were material because he cannot show
that the outcome of the first trial would have been different had the evidence been available.
First, the prosecutor disclosed the diary entries, t he district court admitted the m at the

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second trial , and a jury again convicted Kepner. Second, even if there was a Brady
violation, Kepner cannot establish prejudice because he received the remedy articulated in
Brady: a new trial. See id. If anything, the prosecutor’s failure to obtain the diary earlier
represents, as the district court noted, an incomplete investigation by the state. But without
a showing of prejudice, “allegations regarding an inadequate police investigat ion do not
amount to a Brady violation.” Woodruff v. State , 608 N.W.2d 881, 888 (Minn. 2000).
Because Kepner cannot establish all three prongs, the district court properly concluded that
the state did not commit a Brady violation.
II.
Kepner also contends that the district court erred by admitting the diary in evidence
at the second trial, arguing that the district court should have instead suppressed the diary
as an appropriate sanction for the discovery violation. 2 A district court can impose
sanctions for violating Minn. R. Crim. P. 9.01, subd. 1, and in doing so, the district court
should take into account “(1) the reason why disclosure was not made; (2) the extent of
prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a
continuance; and (4) any other relevant factors.” State v. Lindsey, 284 N.W.2d 368, 373
(Minn. 1979). The district court is in the best position to fashion a remedy. Therefore, we
will not reverse a district court’s decision concerning sanctions for di scovery violations
unless it constitutes a clear abuse of the district court’s discretion. Id.

2 We acknowledge the irony in Kepner’s argument that the diary constituted Brady
evidence because it is exculpatory but that the district court abused its discretion in
admitting the diary at the second trial.

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The district court took the above-stated factors into account in denying Kepner’s
motion in limine. The district court stated that the parties became aware of the diary after
reviewing the transcript of the interview between B.M. and the investigator, but that neither
party requested an order for production. The district court determined that the lack of
disclosure stemmed from the state’s inadequate investigation but reasoned that Kepner
could have remedied any potential prejudice through a continuance because it would have
given him additional time “to more fully review the entries in the journal and/or retain an
expert to examine the diary itself.” The district court further noted that it had offered
Kepner a continuance and that, after Kepner consulted with counsel, he declined it.
The district court “is in the best position to determine whether any harm has resulted
from the particular violation and the extent to which this harm can be eliminated or
otherwise alleviated.” Id. The district court considered its options in light of the record
and offered Kepner time to remediate any potential prejudice. We therefore conclude that
the district court properly exercised its discretion by admitting evidence of the diary entries
in the second trial.
III.
In a pro se supplemental brief, Kepner argues that he received ineffective assistance
of counsel at his second trial because his attorney (1) did not object during B.M.’s
testimony, (2) did not ask questions about Kepner’s father molesting Kepner’s younger
sister, (3) did not question B.M. on cross-examination like she did during the first trial, and
(4) did not want a continuance because she transferred to a position in a different county.

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Kepner did not raise these ar guments to the distri ct court or in a postconviction
petition. The general rule is that “an appeal from a convict ion is not the most appropriate
way to raise issues of trial counsel’s ineffective representation . . . because [appellate
courts] do not have the benefit of all the facts regarding why defense counsel acted as [s]he
did.” State v. Cermak, 350 N.W.2d 328, 332 n.6 (Minn. 1984 ). Because Kepner did not
raise his ineffective-assistance-of-counsel claim in district court, that claim is not properly
before us. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate
courts “generally will not decide issues which were not raised before the district court”).
Even if we assume that Kepner properly raised this claim in district court, it fails on
the merits. See Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (addressing claims
alleging ineffective assistance of trial counsel on direct appeal where the existing record
was sufficient to determine those claims without any additional fact finding). When an
ineffective assistance of counsel claim is properly raised in a direct appeal, we examine the
claim under the two -prong test set forth in Strickland v. Washington , 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). State v. Ellis -Strong, 899 N.W.2d 531, 535 ( Minn. App.
2017). The defendant must affirmatively establish 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.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted).
Kepner’s first three claims of ineffective assistance of counsel amount to
disagreements with his counsel’s trial strategy. We will not review ineffective-assistance-
of-counsel claims that are based on trial strategy. Andersen v. State , 830 N.W.2d 1, 10

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(Minn. 2013). The fourth claim alleges that Kepner’s trial counsel was ineffective because
she had transferred to a different county and decli ned a continuance for a second trial.
During the hearing on Kepner’s motion in limine, when the district court asked Kepner
whether he wanted a continuance, the following exchange occurred among the district
court, Kepner’s counsel, and Kepner:
[COUNSEL]: Your Honor, I’ve discussed it with my client.
He really wants to move forward, so we’re not requesting a
continuance.

THE COURT: So there will be no continuance requested. That
is a remedy the Court would allow in this case if your client
wished it. I would note that that is being waived. Mr. Kepner,
that is your request?

[KEPNER]: Yes, your honor.

The record establishes that Kepner declined the offer of a continuance. Kepner has not
pointed to any record evidence establishing that his trial cou nsel fell below an objective
standard of reasonableness. Ellis-Strong, 899 N.W.2d a t 536. Kepner has failed to
affirmatively establish the first prong of the Strickland test. Id. Therefore, even if Kepner
properly raised his ineffective-assistance-of-counsel claim, it fails on the merits.
Affirmed.