State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1423

State of Minnesota,
Respondent,

vs.

Anthony John Sawina,
Appellant.

Filed December 10, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-19465

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bradford Colbert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Ju dge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant challenges his convic tions for two counts of attempt ed first-degree
murder and three counts of second-degree assault, arguing that the state failed to prove that

2
he intended to kill or premeditated killing anyone and that the jury should not have received
a supplemental instruction on transferred intent. He also challenges his sentence, arguing
that the five consecutive sentences imposed by the district court exaggerate the criminality
of his conduct. In a pro se brief, Sawina contends that his co nfrontation-clause right and
his right to effective assistance of counsel were violated. Be cause sufficient evidence
supports appellant’s convictions and the district court did not abuse its discretion either in
giving a supplemental instruction on transferred intent or in s entencing appellant, we
affirm.
FACTS
Appellant Anthony Sawina and J.J., an acquaintance, left a bar early in the morning
of June 29, 2016, with a group of people. Sawina was carrying a gun for which he did not
h a v e a p e r m i t . T h e g r o u p e n c o u n t e r e d f i v e m e n , a l l p r a c t i c i n g Muslims observing
Ramadan and attired in qamis. So meone in the group made a comm ent about wearing a
dress, and one of the men in the group said, “F--- Muslims.”
The Muslim men got into their car. 1 As they began to drive off, the driver, A.H.,
pointed out Sawina and J.J., saying they were with the group th at made the offensive
comment about Muslims. A.H. st opped the car and asked Sawina a nd J.J. about the
comment. Sawina and J.J. walked toward the car, and J.J. said, “It wasn’t us” and “I don’t
have anything against Muslims.” Sawina, however, approached A.H. and said, ‘What if it

1 The five men in the car were the driver, A.H.; the frontseat p assenger, H.A.; and the
backseat passengers, A.Y. (behind the driver), A.A. (in the middle), and H.G. (behind the
frontseat passenger).

3
was me?” Someone in the backse at answered, “You didn’t say it. Your friend [i.e., J.J.]
just said you didn’t.” Sawina, standing outside the driver’s d oor, said, “Well, it was me.
What are you going to do about it?” The discussion escalated.
Sawina then said that he had a right to carry a gun, that he was going to kill the men
in the car, and that they should get out of the car. He pulled o u t h i s g u n . F r o n t s e a t
passenger H.A. got out of the car and ran away. Sawina moved to the front of the car and
pointed his gun at H.A., then moved back along the right side o f car, told right-backseat
passenger H.G., who had opened the right rear door and was getting out, to get back in the
car, and pointed the gun at him. H.G. told A.H. to start drivi ng, but A.H. had difficulty
getting the car in gear; he was bent down in his seat. When th e car started moving, left-
backseat passenger A.Y. opened his door and ran away. Sawina fired two bullets through
the open right rear door. Both H.G. and middle-backseat passen ger A.A. received bullet
wounds in the leg. One bullet lodged in A.A.’s leg; the other went through the windshield.
The bullet that struck H.G. went through his leg.
Sawina ran from the scene. He was arrested about three weeks later and charged
with five counts of se cond-degree assault. Respondent State of Minnesota (the state)
offered a sentence of 36 months in prison for each count, serve d consecutively, totaling
180 months. Sawina refused the offer.
The state then amended the comp laint, adding two counts of attempted first-degree
premeditated murder (as to A.A. and H.G., the two backseat pass engers who were shot)
and two counts of attempted second-degree intentional murder (as to those same victims)
to the five counts of second-degree assault (as to all five men in the car). A jury found

4
Sawina guilty on all nine counts; three counts as to A.A., three counts as to H.G., and one
count each as to A.H., H.A., and A.Y. The state in its memoran dum on sentencing said
that the attempted first-degree murder counts as to A.A. and H. G. subsumed the other
counts as to them.
Sawina was therefore sentenced on five counts: attempted first -degree murder of
A.A. and H.G., and second-degree assault against A.H., H.A., an d A.Y. His criminal
history score was zero, which made his presumptive sentence for each count of attempted
first-degree murder 180 months in prison, with a range of 153 to 216 months.
The state proposed a bottom-of-the-box sentence of 153 months for each of the two
attempted first-degree murder convictions, served consecutively , and 36 months for each
of the second-degree assault convictions, served concurrently, for a total of 306 months
(25.5 years). The district cour t sentenced Sawina to 468 month s (39 years): the
presumptive 180 months for each attempted first-degree murder conviction and 36 months
for each second-degree assault conviction, all consecutive.
This appeal follows.
D E C I S I O N
I. The evidence is sufficient to support the attempted first-de gree murder
convictions.

“Whoever does any of the following is guilty of murder in the first degree and shall
be sentenced to imprisonment for life: (1) causes the death of a h u m a n b e i n g w i t h
premeditation and with intent to effect the death of the person or of another . . . .” Minn.
Stat. § 609.185 (2014). Sawina argues that the evidence is ins ufficient to support his

5
attempted first-degree murder convictions because the state did not prove two elements—
intent and premeditation—beyond a reasonable doubt.
Intent means that a defendant “either has a purpose to do the thing or cause the result
specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02,
subd. 9(4) (2014). “‘[P]remeditation’ means to consider, plan or prepare for, or determine
to commit, the act . . . prior to its commission.” State v. Petersen, 910 N.W.2d 1, 7 (Minn.
2018) (alteration in original) (quoting Minn. Stat. § 609.18 (2 016)). To show
premeditation, “the state must alw ays prove that, after the def endant formed the intent to
kill, some appreciable time passe d during which the considerati on, planning, preparation
or determination required by Minn. Stat. § 609.18 prior to the commission of the act took
place.” State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992).
Generally, when the state must prove a defendant’s state of min d, it does so with
circumstantial evidence. State v. Griffin, 887 N.W.2d 257, 264 (Minn. 2016) (“It is rare
for the State to establish a defe ndant’s state of mind through direct evidence.”); State v.
Hughes, 749 N.W.2d 307, 312 (Minn. 2008) (“Because it is a state of mind, premeditation
is generally proven through circumstantial evidence, and is often inferred from the totality
of circumstances surrounding the killing.” (quotations and citation omitted)). An appellate
court will affirm a conviction based on circumstantial evidence if the circumstances proved
are consistent with the hypothe sis that the defendant is guilty and inconsistent with any
rational hypothesis except that of guilt. See State v. Al-Naseer , 788 N.W.2d 469, 473
(Minn. 2010). The supreme court has explained the analysis as follows:

6
First, we must identify the circumstances proved, giving
deference to the jury’s acceptance of the proof of these
circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the State. Second,
we independently examine the reasonableness of all inferences
that might be drawn from the circumstances proved, including
inferences consistent with a hypothesis other than guilt.

State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010).
Here, the state presented direct evidence of Sawina’s determination and intent—all
five victims testified that Sawina said, “Get out, I’m going to kill you guys.” See State v.
Horst, 880 N.W.2d 24, 40 (Minn. 2016) (characterizing the defendant’s statement, “I want
him dead,” as direct evidence of mens rea); see also State v. Clark, 739 N.W.2d 412, 421
n.4 (Minn. 2007) (explaining that direct evidence is “[e]videnc e that is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption”
(alteration in original)). In addition, the state proved the following circumstances:
 Sawina pulled out his loaded gun while confronting the men in the car.
 When H.A. ran away, Sawina pointed his gun at him.
 When H.G. attempted to flee, Sawina told him to get back in the car.
 Sawina aimed his gun at H.G.
 Sawina positioned himself at the open rear passenger door.
 As the car started to drive away, Sawina fired multiple shots through the open
rear passenger door.
 A bullet struck the windshield, where driver A.H.’s head would have been
had he not ducked.

7
 A.A. and H.G. were shot.
 No bullets struck the car from the outside.
 Sawina testified that he was brac ing himself so he could aim an d that he
aimed well through the open car door.
The direct evidence and the circumstances proved are consistent w i t h t h e j u r y ’ s
findings of intent and premeditation. With respect to intent, a j u r y m a y i n f e r t h a t a
defendant intends the natural and probable consequences of his actions. State v. Johnson,
616 N.W.2d 720, 726 (Minn. 2000). More specifically, the jury may infer a person’s intent
to kill from the nature of the killing. Griffin, 887 N.W.2d at 265 (holding that the evidence
was sufficient to establish intent where the defendant brought a loaded gun to a robbery,
fired it in one victim’s direction, paused to regain balance, a imed at another victim, and
pulled the trigger when the gun was in close proximity to that victim’s chest).
Premeditation can be based on events that immediately precede a killing. In Moore,
the supreme court held, “[T]he testimony of defendant’s daughter . . . that she heard [him]
say [to the victim], ‘Good-bye . . . I am going to kill you . . .’ before she heard the shot
permits an inference that defendant had sufficient time to cont emplate his actions before
carrying them out” and is consis tent with intentional, premeditated murder. 481 N.W.2d
at 362; State v. Palmer , 803 N.W.2d 727, 737 (Minn. 2011); see also State v. Fort , 768
N.W.2d 335, 343 (Minn. 2009) (concluding that burglar’s statements to victim that “if you
don’t shut up, I’m going to kill you” and “now you’re going to die” verbalized the planning
activity and were sufficient to prove premeditation). And in Palmer, the supreme court

8
determined that evidence that “ the shooter took careful aim” wa s also indicative of
premeditation. Palmer, 803 N.W.2d at 737.
Consistent with this case law, Sawina’s statement that he was going to kill the men
in the car and the evidence of his positioning himself, aiming, and firing into the car and
through the front windshield where A.H.’s head would have been had A.H. not ducked are
consistent with the hypotheses of intent to kill and of the con sideration, planning,
preparation or determination that shows premeditation.
Sawina argues that the evidence is also consistent with the hyp othesis that he did
not have “the intent to kill a person.” But that hypothesis is not rational, given his statement
and actions. Sawina also argues that the evidence is consisten t with his shooting into the
car “reflexively” and not with premeditation. But the evidence did not show that Sawina
was acting “reflexively” or reacting to provocation by the men in the car. Instead, the men
in the car were trying to get aw ay from Sawina when he showed h is weapon and walked
around the car, positioned himself, aimed, and started shooting. His hypothesis that he did
not consider whether to kill, or prepare or determine to kill b efore he started shooting is
not rational.
The evidence was sufficient to support the convictions of attem pted first-degree
murder.
II. The district court did not err in giving a supplemental jur y instruction on
transferred intent.

We review a district court’s jury instructions for an abuse of discretion. State v.
Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).

9
The jury was instructed that the counts of attempted first-degr ee premeditated
murder required the state to prove that Sawina attempted to cau se the death of the victim
named in the count “or another person.” The jury was also told , in the state’s closing
argument, that evidence from the windshield showed Sawina pointed his gun at A.H., who
had ducked to avoid being hit in the head, and that, if the jur y believed Sawina “[was]
trying to kill [A.H.] and then . . . [shot] at the other people [i.e., A.A. and H.G.],” his guilt
was established.
But the verdict forms did not m ention “another person”; they a sked the jurors to
determine whether Sawina was guilty or not guilty of “attempted murder in the first
degree—premeditated ([H.G.])” or of “attempted murder in the first degree—premeditated
([A.A.]).”
While deliberating, the jurors asked the district court whether , if they decided
Sawina was guilty of the attempted first-degree murder of “one other person, i.e., not
[H.G.] or [A.A.],” they should find him guilty of the attempted first-degree murder of both
A.A. and H.G., or just A.A., or just H.G. In response to the j urors’ questions, the district
court gave an instruction on transferred intent, telling them:
Transferred intent allows evidence of an attempt to harm
someone to transfer to the person actually harmed when there
is a possibility the person harmed was not the intended
recipient of the specific act. If the defendant acted with
premeditation and with the intent to cause the death of a person,
the elements of premeditation a nd intent are [sic] to kill are
satisfied and may be transferred to another victim, even if the

10
defendant did not intend to harm [that] person. This concept is
known as transferred intent.2

Sawina infers from the jurors’ questions that they had decided Sawina had not
intended to kill A.A. or H.G. but intended to kill A.H., and th at the jury transferred that
intent to find him guilty of the attempted first-degree premedi tated murder of A.A. and
H.G. He argues in his brief that “the doctrine of transferred intent cannot be used in a case
involving attempted premeditated murder.”
But this court has explicitly rej ected “[the] contention that t here can be no
transferred intent from the attempted murder of a specific victim.” State v. Bakdash, 830
N.W.2d 906, 915 (Minn. App. 2013), review denied (Minn. Aug. 6, 2013). In Bakdash,
the defendant ran down several pedestrians with his car. Id. at 910-11. We affirmed the
defendant’s conviction of attempted murder of the pedestrians that he injured even though
he may have intended to kill someone else. Id. at 914. Rejecting the defendant’s challenge
to the jury instructions, we wrote, “In light of evidence that appellant intended to cause the
death of a person, the district court did not abuse its discret ion by including the statutory
language implicating transferred intent in the jury instructions.” Id. at 915; see also State
v. Cruz-Ramirez , 771 N.W.2d 497, 507 (Minn. 2009 ) (“[T]ransferred intent allow s
evidence of an intent to harm ‘someone’ to transfer to the pers on actually harmed when

2 Appellant’s counsel objected, say ing that the state had an opp ortunity to request this
instruction earlier and that, because the state did not do so, the jury had begun deliberations
without considering transferred intent. He also said that he had had no time to consider or
research the instruction, but he declined the district court’s offer of more time to prepare
his opposition to the instruction, saying that he opposed the g iving of any additional
instruction because of what giving one would imply to the jury.

11
there is a possibility the victim was not the intended recipient of the specific act.”) (citing
State v. Holliday , 745 N.W.2d 556, 562 (Minn. 2 008) (affirming first-degree atte mpted-
murder conviction based on transferred-intent doctrine)).3
Here, it is possible that A.A. and H.G. were not the intended recipients of the shots
that Sawina fired. But, under Bakdash, the doctrine of transferred intent applies. Indeed,
Sawina does not dispute that giving the instruction was consist ent with Bakdash, and he
concedes that the instruction on transferred intent was a correct statement of the law. “Only
an instruction that materially misstates the law is error.” Cruz-Ramirez, 771 N.W.2d at
507.
Bakdash also refutes Sawina’s argument that the district court’s “inst ruction on
transferred intent was, in effect , a constructive amendment of the State’s complaint.”
Bakdash rejects the view that “the essential elements of the crimes we re modified upon
presentation of the theory of tra nsferred intent to the jury” b ecause there is “no authority
supporting the proposition that variance of the particular theo ry behind criminal charges,
such as transferred intent, c onstitutes an impermissible constr uctive amendment in
violation of Minn. R. Crim. P. 17.05.” 830 N.W.2d at 916.

3 See also State v. Glass, No. A14-2003, 2015 WL 9263956, *2 (Minn. App. Dec. 21, 2015)
(citing Cruz-Ramirez, Holliday, and Bakdash, and holding that where, as here, there was
no murder but only attempted murder, the intent to attempt murder of a specific individual
could transfer to another victim injured in the attempt). As an unpublished decision of this
court, Glass is without precedential value under Minn. Stat. § 480A.08, subd . 3, but its
similarity to this case makes it instructive.

12
The district court did not abuse its discretion in giving the jury a supplemental
instruction on transferred intent.
III. Sawina’s sentence is not an abuse of the district court’s discretion.
A district court’s decision to impose consecutive sentences is reviewed for an abuse
of discretion. State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017). This court will not interfere
with a district court’s discretion unless the sentence is dispr oportionate to the crime or
unfairly exaggerates the criminality of the defendant’s conduct. State v. Vang, 847 N.W.2d
248, 264 (Minn. 2014). Nor will this court generally “review a district court’s exercise of
its discretion to sentence a defendant when the sentence imposed is within the presumptive
guidelines range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010).
Sawina’s criminal history score was zero. His presumptive sentence for two counts
of attempted first-degree murder was 180 months each, with a range of 153 to 216 months.
Minn. Sent. Guidelines 2.G.11 ( 2 0 1 4 ) . H i s p r e s u m p t i v e s e n t e n c e for three counts of
second-degree assault was a minimum 36 months in prison for each. Minn. Stat. § 609.11,
subd. 5(a) (2014). He was sent enced to five consecutive senten ces, totaling 468 months
(180+180+36+36+36).4 Sawina does not dispute that the consecutive sentences were
permissive, and he has the burde n of showing that the consecuti ve sentencing unfairly

4 The shortest possible guideline consecutive sentence for each of the five convictions
would have been 414 months (153+ 153+36+36+36); the longest cons ecutive guideline
sentence would have been 540 months (216+216+36+36+36).

13
exaggerates the criminality of his conduct. See State v. Hough , 585 N.W.2d 393, 398
(Minn. 1998).5
To determine whether a sentence unfairly exaggerates the crimi nality of a
defendant’s conduct, appellate c ourts examine sentences imposed on similarly situated
defendants to consider whether t he sentence is commensurate wit h culpability. State v.
Yang, 774 N.W.2d 539, 563 (Minn. 2009). The salient points of Sawi na’s situation are:
(1) his shots killed no one; (2) his shots wounded two people; and (3) he was convicted of
two counts of attempted first-degree murder and three counts of assault. There appears to
be no published case law on sentencing defendants similarly sit uated to Sawina; we will
therefore address both the published and the unpublished cases on which the parties rely.
The state cites two unpublished decisions that, while lacking p recedential value
under Minn. Stat. § 480A.08, subd. 3, affirm consecutive sentences in situations similar to
Sawina’s. State v. Freeman, No. A13-1037, 2014 WL 996764, at *1 (Minn. App. Mar. 17,
2014) involved a defendant who pleaded guilty to one count of second-degree murder and
three counts of first-degree assault; he was sentenced to 336 m onths on the murder count
and to 86 months on each of the assault counts, all consecutive, for a total of 594 months.
“[A]ppellant’s assault victims suffered skull fractures and the loss of an eye. We
conclude[d] that appellant’s sen tence [did] not unfairly exagge rate the criminality of his
conduct.” Id. at *3.

5 The district court’s sentence was more than 50% greater than the sentence sought by the
state.

14
State v. Thompson, No. A10-1508, 2011 WL 4435307, at *2 (Minn. App. Sept. 26,
2011) involved a defendant convi cted, in relevant part, of one count of attempted first-
degree premeditated murder and two counts of second-degree assault; he was sentenced to
216 months on the attempted murder and 36 months on each of the assaults, all consecutive,
for a total of 288 months. “[E]ach [offense] involved a distin ct act directed toward each
victim. The consecutive sentences for offenses against the three victims [did] not unfairly
exaggerate the criminality of a ppellant’s conduct, and the dist rict court did not abuse its
discretion by imposing consecutive sentences.” Id. at *6. These cases support the use of
consecutive sentencing in cases such as Sawina’s.6
Sawina relies on State v. Goulette, 442 N.W.2d 793, 794-95 (Minn. 1989) (reducing
defendant’s sentence of 251 months to 214 months because it unf airly exaggerated the
criminality of his conduct). But Goulette is distinguishable: the defendant in that case was
sentenced to “the longest term possible without departing from the sentencing guidelines,”
and this court affirmed. Id. at 794. For Sawina, the longest term possible under the
guidelines was 540 months, and the shortest was 414 months. The median between these

6 The state also cites six publis hed cases that are distinguisha ble because they involved
convictions of and life sentences for murder, so additional sentences imposed for murder,
whether consecutive or concurrent, had no real effect: Ouk v. State, 847 N.W.2d 698, 700
n.4 (Minn. 2014) (two life sentences for murder); Vang, 847 N.W.2d at 258 (life sentence
for first-degree murder); Yang, 774 N.W.2d at 551 (two life sentences for aiding and
abetting first-degree premeditated murder for the benefit of a gang); Cruz-Ramirez, 771
N.W.2d at 504 (life sentence with no possibility of release); State v. Sanders, 598 N.W.2d
650, 654 (Minn. 1999) (life imprisonment for first-degree murder); and State v. Whittaker,
568 N.W.2d 440, 453 (Minn. 1997) (life sentence for murder).

15
is 477 months; thus, Sawina’s 4 68-month sentence is nine months less than the median
guideline sentence.7
Sawina also relies on three other published opinions and four unpublished opinions.
The three published opinions are distinguishable because none of them involved a victim
wounded by the defendant’s shots: State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012)
(defendant, convicted of one count of drive-by shooting at an occupied building and eight
counts of second-degr ee assault, sentenced to 39 months on the drive-by shooting, 36
months, consecutive, on one assault conviction, and 36 months, concurrent, on the other
seven assault convictions, for a total of 75 months; affirmed); Hough, 585 N.W.2d at 397
(defendant, convicted of six c ounts of assault with a dangerous weapon for firing seven
shots into a home occupied by six people, sentenced to two cons ecutive 72-month
sentences, executed, for two children sleeping in a bedroom hit by bullets, and four
consecutive 36-month sentences, stayed, for the other victims, for a total of 144 months;
affirmed); and State v. Nunn , 411 N.W.2d 214, 216 (Minn. App. 1987) (defendant,
convicted of one count of attempted second-degree murder and six counts of second-degree
assault, sentenced to 81 months on attempted murder, 60 months, consecutive, on two
assault convictions, and 60 months, concurrent, on the other two, for a total of 201 months;
affirmed). None of these cases supports reducing Sawina’s sentence.
The four unpublished opinions ar e distinguishable because they involve sentences
for robbery or burglary, not attempted murder. State v. Wiley , No. A09-135, 2009 WL

7 477+63=540; 477–63=414.

16
3255600 (Minn. App. Oct. 13, 2009) (defendant sentenced to 48 m onths for one count of
burglary and 36 months for each of two counts of second-degree assaults, all consecutive,
for a total of 120 months; affirmed), review denied (Minn. Dec. 15, 2009); Nelson v. State,
No. A08-0462, 2009 WL 817915 (Minn . App. Mar. 31, 2009) (defend ant convicted of
being an ineligible person in possession of a firearm and five counts of aggravated robbery
was sentenced to 96 months; affirmed), review denied (Minn. June 30, 2009); State v.
Baldwin, No. CX-96-2336, 1997 WL 632889 (Minn. App. Oct. 14, 1997) (de fendant
convicted of first-degree aggrav ated robbery, first degree robb ery, and seven counts of
second-degree assault and received consecutive sentences totaling 324 months; affirmed);
State v. Zaycheck , No. CX-89-1135, 1989 WL 138956 (Minn. App. Nov. 21, 1989)
(defendant convicted of four c ounts of second-degree assault an d received three
consecutive and one concurrent sentence totaling 180 months; af firmed), review denied
(Minn. Jan. 12, 1990). All these cases affirm consecutive sentencing and provide no basis
for reducing Sawina’s sentence.
The district court’s sentence wa s below the median of the guidelines range and
was not an abuse of discretion.
IV. Sawina’s rights under the co nfrontation clause were not violated.
Sawina did not raise this issue during trial, so the standard o f review is plain error,
which requires that there be (1 ) an error, (2) that is plain, a nd (3) that affected the
defendant’s substantial rights. State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998).
Sawina does not show an error.

17
Each of the five victims testified that he did not have a gun with him the night of
the incident. Sawina argues, however, that his confrontation-c lause rights were violated
because his counsel was not per mitted to recall an investigator to ask him whether H.G.
had told him that A.H. had a permit to carry a gun, or to recall A.H. and H.G. to ask them
if they had told Sawina that A.H. had a gun. The district court denied permission to recall
the investigator to testify becau se the investigator’s testimon y as to whether A.H. had a
permit would have been hearsay. The district court granted permission to recall A.H. and
H.G., but Sawina’s counsel said that, although subpoenas were d r a f t e d a n d a p r i v a t e
investigator “made an effort into the late evening” to locate them, they were unavailable.
Moreover, it was established that A.H. did not have a permit or a gun, and each of
the victims was asked if he had had a gun with him the night of the incident. Sawina’s
argument that, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), this
“created a partial confrontation clause violation” lacks merit.
V. Sawina’s claim of ineffectiv e assistance of counsel fails.
An appellate court reviews “a cla im of ineffective assistance of counsel de novo
because such a claim involves a mixed question of law and fact. ” Hawes v. State , 826
N.W.2d 775, 782 (Minn. 2013).
Sawina argues that he was denie d effective assistance of couns el because his
counsel (1) did not object to the state’s motion to prohibit qu estioning witnesses as to
whether A.H. had a permit to carry a gun and (2) did not recall A.H. and H.G. to testify.
But the transcript shows that, in discussion with the prosecuto r and the court, Sawina’s
counsel explained the efforts made to locate A.H. and H.G. so t hey could be recalled to

18
testify, and that he discussed at length his desire to produce evidence that one of the victims
had a permit if not a gun to corroborate Sawina’s testimony that A.H. had claimed to have
a permit and that Sawina shot his gun in self-defense, believing that A.H. was reaching for
a gun.
Finally, Sawina does not show that he was prejudiced by either t h e a l l e g e d
confrontation-clause violation or ineffective assistance of cou n s e l . T h e r e w a s a m p l e
evidence that Sawina committed the crimes of which he was accus ed; the absence of
corroboration of his testimony that one of his victims might ha ve had a permit to carry a
gun was irrelevant to his convictions.
Affirmed.