Anthony Strickland, 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This opinion will be unpublished and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
A17-1631

Anthony Strickland, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 9, 2018
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CR-12-17639

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

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

Michael O. Freeman, Hennepin County Attorney, Michael Ric hardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the postconviction court’s denial of his petition for relief from
his conviction of third-degree criminal sexual conduct, arguing that (1) there is insufficient

2
evidence to prove beyond a reasonable doubt that he engaged in sexual penetration with
the alleged victim or that he knew or should hav e known that she was physically helpless
and (2) the district court erred by permitting the prosecutor to impeach him with evidence
of a prior unspecified felony conviction. We affirm.
FACTS
Following a medical appointment, T.S. began walking to a light-rail station to return
home on October 1, 2005. On her way, T.S. met appellant Anthony Strickland, a stranger
to her, and spent an hour with him at a nearby bar. Strickland accompanied her on the light
rail so that he could continue spending time w ith her. Mid-route, Strickland and T.S. got
off the light rail and stopped at a restaurant. After ordering, T.S. briefly left the table,
leaving her beverage with Strickland. When she returned, Strickland encouraged her to
drink it. When they left the restaurant, T.S. remembered walking away. But she could not
walk without Strickland’s support and was confused about their conversation. The next
thing T.S. remembered was waking up sometime before 12:30 a.m., laying in bushes ,
partially clothed , as stra ngers around her asked her if she was okay. T.S. walked to a
hospital to get help. Upon arriving, T.S. informed a staff member that she thought she had
been raped.
A nurse at the hospital performed a sexual -assault examination. The nurse
conducted a physical exam that included an oral, perineal, vaginal, and rectal swab of T.S.
to check for bodily fluids and obtained a blood sample from T.S. to be tested for substances.
Following the exam, two Minneapolis police officers spoke with T.S. and completed a

3
report. The officers forwarded the report to the appropriate units in the Minneapolis police
department but did not further investigate the alleged rape.
T.S. heard nothing further for several months. Then, seven months later on April
24, 2006, T.S., while walking in downtown Minneapolis, was approached by a man in his
vehicle. T.S. realized that this was the same man who had assaulted her in October , and
she confronted him about it. She subsequently walked to the Minneapolis police station
and informed the police that she had seen the man who raped her in October. A police
officer filed a report with this information.
The Hennepin County Sheriff’s crime lab did not test T.S.’s sexual-assault kit until
June 23, 2009, because it lacked funding before then.1 Testing revealed that T.S.’s perineal
swab was positive for saliva and semen and her rectal swab was positive for semen. The
DNA analyst uploaded the DNA sample to a database that periodically ch ecks for DNA
matches. In August 2011, an analyst notified the crime lab that the DNA profile from
T.S.’s sexual-assault kit matched the DNA of Anthony Strickland. The police had obtained
Strickland’s DNA pursuant to a search warrant. The crime lab then tested the DNA sample
and confirmed that the male DNA profile in T.S.’s sexual-assault kit matched Strickland’s
DNA.
The state charged Strickland with third-degree criminal sexual conduct under Minn.
Stat. § 609.344, subd. 1(d) (2004), for the October 1, 2005 assault against T.S. Following

1 T.S.’s blood and urine kit were not delivered to the BCA until May 23, 2012. The BCA
did not test T.S.’s blood or urine sample for the presence of any substances because too
much time had passed between the time that T.S. provided her sample and the time that the
BCA received the sample.

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a trial, a jury found Strickland guilty of third -degree criminal sexual conduct, and the
district court sentenced him to 58 months in prison. Strickland petitioned for
postconviction relief on the grounds that the evid ence was insufficient to prove his guilt
and that the district court failed to properly analyze whether he could be impeached with a
prior felony conviction. The postconviction court denied his petition. This appeal follows.
D E C I S I O N
I.
Strickland argues that the postconviction court erred in determining that there was
sufficient evidence to support his conviction. On appeal from a postconviction court’s
denial of relief, “ we address questions of law de novo, review the postconviction court’ s
factual findings for clear error, and evaluate the postconviction court’s ultimate decision to
deny relief for an abuse of discretion. ” Lussier v. State , 853 N.W.2d 149, 153 (Minn.
2014).
In reviewing a claim of insufficient evidence, we painstakingly review the record to
determine whether the evidence, when viewed in the light most favorable to the verdict, is
sufficient to allow the fact-finder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989). In so doing, we assume that the fact-finder “believed the state’s witnesses
and disbelieved any evidence to the contrary,” State v. Moore, 438 N.W.2d 101, 108 (Minn.
1989), particularly when resolution of the matter depends mainly on conflicting testimony,
State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). “We will not disturb the verdict if
the jury, acting with due regard for the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a]

5
defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004) (alteration in original) (quotation omitted).
The jury found Strickland guilty of third -degree criminal sexual conduct pursuant
to Minn. Stat. § 609.344, subd. 1(d). An individual is guilty under the statute if he engaged
in sexual penetration with another person and he “[knew] or ha[d] reason to know that the
complainant [was] mentally impaired, mentally incapacitated, or physically helpless.”
Minn. Stat. § 609.344, subd. 1(d). A person is physically helpless if they are “asleep or not
conscious,” “unable to withhold consent or to withdraw consent because of a physical
condition,” or “unable to communicate nonconsent and the condition is known or
reasonably should have been known to the actor.” Minn. Stat. § 609.341, subd. 9 (2004).
“‘Mentally incapacitated’ means that a person under the influence of alcohol, a narcotic,
anesthetic, or any other substance, administered to that person without the person’s
agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual
penetration.” Id., subd. 7 (2004). “‘Sexual penetration’ means any of the following acts
committed without the complainant’s consent . . . : sexual intercourse, cunnilingus, fellatio,
or anal intercourse,” or “any intrusion however slight into the genital or anal openings . . .
of the complainant’s body by any part of the actor’s body.” Id., subd. 12 (2004).
Because the state relied on circumstantial evidence to prove its case , we apply the
two-step circumstantial-evidence standard to review the sufficiency of the evidence . See
Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017). “We review the sufficiency of the
state’s circumstantial evidence de novo.” State v. Sam, 859 N.W.2d 825, 830 (Minn. App.
2015). First, we identify the circumstances proved, deferring to the jury’s acceptance of

6
the proof of these circumstances and rejecting evidence conflicting with the circumstances
proved by the state. State v. Silvernail , 831 N.W.2d 594, 59 8-99 (Minn. 2013). “In
determining the circumstances proved, we disregard evidence that is inconsistent with the
jury’s verdict.” State v. Harris , 895 N.W.2d 592, 601 (Minn. 2017). In evaluating
circumstantial evidence, w e review the record as a whole and not as isolated facts.
Silvernail, 831 N.W.2d at 599. The second step requires a determination of “whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis other than guilt. ” Loving, 891 N.W.2d at 643. We give no deference to the
jury’s choice between reasonable inferences. Id. If the circumstances proved support a
reasonable inference other than guilt, we will reverse the conviction. Id.
At trial, the state proved the following circumstances . T.S. testified that she had
one drink with Strickland before she went to the restaurant and was not intoxicated before
they ordered. T.S. and Strickland ordered food and beverages and sat down at a table.
When T.S. left the table to get lids for their cups , she left her beverage unattended with
Strickland. When she returned, Strickland encouraged T.S. to finish her beverage. T.S.
testified that t he parties left the restaurant in the daylight , and T.S. remembered needing
Strickland’s assistance to walk and being in and out of consciousness. She testified that
she never consented to having sex with Strickland. T.S. could not remember anything after
that until she woke up sometime before 12:30 a.m. surrounded by strangers trying to help
her gather her items. When she awoke, she was laying in bushes with her bra pushed above
her breasts and her pants , which were covered in urine, pulled down below her buttocks.
She walked to a hospital to get help.

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T.S. testified that upon arriving at the hospital, she told a staff member that she
thought she had been raped. A nurse from the hospital testified that she recorded T.S.’s
account of the incident. T.S. informed the nurse that she could not remember what occurred
between the time she left the restaurant and woke up in the bushes. The nurse testified that
she performe d a sexual -assault exam on T.S., which included swabbing T.S.’s oral,
perineal, vaginal, and rectal areas. During the exam, the nurse observed a pinpoint tear in
T.S.’s vaginal area. A DNA analyst testified that testing revealed that the rectal swab
contained DNA from semen of an unidentified male and the perineal swab contained DNA
from saliva and semen from an unidentified male. A DNA database later matched the DNA
on the swabs to S trickland’s DNA . The DNA analyst testified that a test comparing
Strickland’s DNA sample obtained from the police to the DNA on the r ectal and perineal
swabs matched Strickland’s DNA to a probability that “would not be expected to occur
more than once among unrelated individuals in the world’s population.”
A police officer testified that he took a report from T.S. following her sexual-assault
exam at the hospital. The officer stated that T.S. informed him that she could not remember
what happened after finishing her beverage, but that she woke up with strangers around
her, and “she was kind of wobbling around and disoriented.”
These proved circumstances are consistent with guilt. The semen on the rectal swab
established penetration. And T.S.’s lack of memory, the sudden change in her coordination
as she left the restaurant, and her experience waking up in the bushes, partially clothed ,
sometime before 12:30 a.m. demonstrated that she was physically helpless.

8
But Strickland argues that the circumstances proved support a rational hypothesis
other than guilt. He first asserts that “he did ejaculate while in contact with [T.S.], but not
while sexually penetrating [T.S.], and the semen later moved or shifted into [T.S.’s]
rectum.” Strickland relies on the following evidence to support his argument: semen was
found on T.S.’s perineal area, the nurse did not discover any injuries to T.S.’s rectal area
during her physical examination, T.S. was unsure of whether penetration took place, and
no witness testified that Strickland penetrated T.S. We are not persuaded. Penetration may
be established by “any intrusion however slight into the . . . anal openings.” Minn. Stat.
§ 609.341, subd. 12(2). Because the DNA testing established that Strickland ’s DNA
matched the semen found on her rectal swab, the postconviction court determined
Strickland’s hypothesis to be unreasonable.
Second, Strickland contends that the circumstances proved support the rational
inference that he did not know that T.S. was physically helpless during the assault.
Strickland argues that the state did not sufficiently prove that he was aware of T.S.’s mental
state when the sexual contact occurred because T.S. did not appear impaired before they
went to the restaurant, he was briefly made aware that she needed help walking when they
left the restaurant, no evidence demonstrated exactly when the assault occurred, her blood
and urine samples were not tested for substances, and she did not appear to be intoxicated
during her sexual-assault exam.
In State v. Berrios , we determined that the circumstantial evidence sufficiently
supported the jury’s determination that the v ictim was physically helpless because the
defendant witnessed the victim take multiple shots of alcohol, vomit several times, lose

9
consciousness, and struggle to walk without the defendant’s assistance. 788 N.W.2d 135,
143 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010) . Strickland argues that
Berrios is distinguishable and that the circumstances proved here only establish that T.S.
was unable to walk for a short period of time. We disagree.
The circumstances proved demonstrate that Strickland’s sexual assault of T.S.
occurred after they left the restaurant but before the time she awoke alone in the bushes,
with no memory of what had occurred. T.S.’s inability to walk away from the restaurant
without Strickland’s help demonstrates that T.S. was “unable to withhold consent or to
withdraw consent because of a physical condition” or “unable to communicate nonconsent
and the condition is known or reasonably should have been known to the actor. ” Minn.
Stat. § 309.341, subd. 9 . Assuming that the jury believed T.S., the jury would have
concluded that T.S. lacked physical cont rol as she left the restaura nt and would have
inferred that her condition deteriorated before she woke up.
Because the circumstances proved are consistent with Strickland’s guilt and
inconsistent with any rational hypothesis other than guilt, the evidence is sufficient to
support Strickland’s conviction of third-degree criminal sexual conduct under Minn.
Stat. § 609.344, subd. 1(d).
II.
Strickland challenges the postconviction court’s determination that the district court
did not err by allowing the state to present evidence of Strickland’s prior felony conviction.
Strickland argues that the prejudicial effect of the evidence of the prior felony outweighed
its probative value and that its admission chilled his constitutional right to testify. Before

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trial, Strickland moved to suppress evidence of his felony third -degree drug sale and
requested that the district court prohibit the state from using it for impe achment purposes
under Minn. R. Evid. 609. Because of the similarities between the drug -sale conviction
and the facts here that implied that Strickland drugged T.S., the district court only allowed
the prosecutor to refer to the previous conviction as an unspecified prior felony conviction.
Minn. R. Evid. 609(a) provides that a witness’s credibility may be attacked with a
prior conviction only if the crime “was punishable by death or imprisonment in excess of
one year . . . and the court determines that t he probative value of admitting this evidence
outweighs its prejudicial effect” or the crime “involved dishonesty or false statement,
regardless of the punishment.” A reviewing court will not overturn a district court’s
determination of whether the probative value of a prior conviction outweighs its prejudicial
effect absent an abuse of discretion . State v. Graham , 371 N.W.2d 204, 208 -09 (Minn.
1985). When determining whether the probative value of a prior conviction outweighs its
prejudicial effect, a district court applies the five -factor balancing test set forth in State v.
Jones. 271 N.W.2d 534, 537-38 (Minn. 1978). The factors to be balanced are as follows:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use of
the prior crime to impeach), (4) the importance of [the]
defendant’s testimony, and (5) the centrality of the credibility
issue.

Id. A district court must demonstrate that it considered the Jones factors. State v. Swanson,
707 N.W.2d 645, 654-55 (Minn. 2006). But the district court may assign different weight

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to each Jones factor and is given “broad discretion” in weighing the factors. State v.
Hochstein, 623 N.W.2d 617, 625 (Minn. App. 2001).
Here, the district court did consider and weigh each Jones factor. As to the first
factor, “the mere fact that a witness is a convicted felon holds impeachment value.” State
v. Hill, 801 N.W.2d 646, 652 (Minn. 2011). The district court correctly concluded that all
felonies have impeachment value in concluding that the first factor weighed in favor of
admissibility.
The second factor, the date of the offense and subsequent history, is concerned with
examining the defendant’s subsequent history t o ensure that the prior offense has not lost
any relevance by the passage of time. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
Minn. R. Evid. 609(b), which mandates that a prior conviction is not admissible if a period
of more than ten years has e lapsed since the date of that conviction unless its probative
value substantially outweighs its prejudicial effect , also addresses the concern that the
passage of time may cause the prior conviction to lose its relevanc e as it pertains to a
defendant’s cre dibility. Strickland’s prior felony occurred six year s before trial. The
district court determined that this was a neutral factor because it was not “particularly old.”
The third Jones factor considers whether the prior conviction is similar to the
charged crime because , if so, “there is a heightened danger that the jury will use the
evidence not only for impeachment purposes, but also substantively.” State v. Gassler,
505 N.W.2d 62, 67 (Minn. 1993). But the third Jones factor is irrelevant with respe ct to
an unspecified felony conviction because there can be no prejudicial effect resulting from
“the similarity of the past crime with the charged crime” if the jury does not know the

12
nature of the past crime. See Jones, 271 N.W.2d at 538. Here, the district court concluded
that the third factor weighed against admissibility, reasoning that, although a sexual-assault
charge and drug-sale conviction are different offenses, the prior conviction and sexual -
assault charged were similar because the state’s theory of the case—the victim’s belief that
she had been drugged—involved similar facts to the drug -sale conviction. B ecause the
district court admitted the drug -sale conviction as an unspecified felony and because the
jury did not know the nature of the past crime, Strickland was not prejudiced.
Under the fourth Jones factor, a district court may exclude a prior conviction if the
admission of the conviction for impeachment will prevent the defendant from testifying
and if it is more important that the jury hear the defendant’s version of the case. Bettin,
295 N.W.2d at 546. Here, the district court concluded that this factor weighed against
admitting evidence of the prior felony because Strickland’s testimony was crucial to his
case, and he had no other witnesses.
The fifth Jones factor favors admission “if the issue for the jury narrows to a choice
between defendant’s credibility and that of one other person.” Id. Strickland notified the
district court that he was invoking the defense that T.S. consented to a sexual act. Because
the credibility of both T.S. and Strickland was crucial in determining whether T.S.
consented, the district court determined that this factor favored admission.
In balancing these factors, the district court determined that the prejudicial effect of
disclosing the prior felony as a drug -sale conviction outweigh ed its probative value but
concluded that the admission of the evidence would satisfy the rule 609(a)(1) balancing
test if the state did not identify the felony. I n reaching this conclusion, t he district court

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relied on Hill, in which the supreme court held that a district court “may still allow a party
to impeach a witness with an unspecified felony conviction if the use of the unspecified
conviction satisfies the balancing test of Rule 609(a)(1)” even if the prejudicial effect of
disclosing the nature of the felony convictions outweighs its probative value. 801 N.W.2d
at 652-53.
The postconviction court determined the district court did not abuse its discretion in
admitting the conviction as an unspecified felony, reasoning that the district court
“carefully minimized the impact of undue prejudice by allowing the State to impeach with
an unspecified felony conviction.” Because the district court engaged in a thorough Jones
analysis and admitted the drug -sale conviction as an unspecified felony conviction, we
agree with the postconviction court’s conclusion that the district court did not abuse its
discretion by allowing the state to use evidence of the unspecified felony conviction to
impeach Strickland.
Strickland also argues that the district court chilled his constitutional right to testify
by admitting his prior felony as impeachment evidence. The Fourteenth Amendment
affords a criminal defendant “due process of law,” see U.S. Const. amend. XIV, § 1, which
includes the right to explain his conduct to the jury. State v. Brechon , 352 N.W.2d 745,
751 (Minn. 1984) . The supreme court has held that a district court’s evidentiary ruling
may have a “chilling effect on the accused’s right to testify in his own defense,” particularly
if the district court allows a broad inquiry into the facts underlying a prior conviction. State
v. Griese, 565 N.W.2d 419, 426 (Minn. 1997).

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But a district court does not prohibit a defendant from testifying or violate his
constitutional rights to testify simply because the defendant decided not to testify based on
the evidence that would have been admitted had he done so. See State v. Ihnot, 575 N.W.2d
581, 587 (Minn. 1998). Here, the district court did not permit the prosecutor to inquire
about the facts underly ing Strickland’s conviction or to identify the fel ony as a drug -sale
conviction. Strickland chose to take his attorney’s advice not to testify at trial. Therefore,
the district court did not violate Strickland’s constitutional right to testify.
Finally, Strickland argues that, although the district court instructed the jury not to
consider Strickland’s failur e to testify as evidence of guilt , the jury could not have
understood the instruction . Minnesota caselaw does not support this theory. “Jurors are
presumed to follow limiting instructions with r espect to the proper use of evidence.” See
State v. Ali, 855 N.W.2d 235, 249-50 (Minn. 2014). We conclude that the postconviction
court properly concluded that the district court did not abuse its discretion by allowing the
state to introduce Strickland’s unspecified felony as impeachment evidence and that this
ruling did not chill his constitutional right to testify.
Affirmed.