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This opinion will be unpublished and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
A17-1707

State of Minnesota,
Respondent,

vs.

Lavell Ramone Porter,
Appellant.

Filed September 17, 2018
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-16-24622

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Tyler Bliss, Minneapolis, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Lavell Ramone Porter challenges his convictions of kidnapping, first -
degree criminal sexual conduct, and first -degree assault, arguing that he received
ineffective assistance of counsel, that the district court abused its discretion by denying his

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request for a continuance two days before trial, and that he is entitled to a new trial due to
a Brady violation. Because we determine that appellant received effective assistance of
counsel, that the district court did not abuse its discretion when it denied appellant’s request
for a continuance, and that there was no Brady violation, we affirm.
FACTS
Victim A .C.T. and appellant were in a romantic relationship beginning in 2010.
A.C.T. has three children, two of whom she had with appellant. Physical abuse was a
persistent feature of A .C.T.’s relationship with appellant. The abuse included shoving,
strangulation, and controlling behavior. On May 21 and 22, 2016, appellant assaulted
A.C.T. in a public park and then in a basement, prevented her from leaving the basement,
and sexually assaulted her before and after physically beating and terrorizing her.
The state charged appellant with kidnapping, first -degree criminal sexual conduct,
and first -degree assault. A jury trial was held in June 2017. Two days b efore trial,
appellant requested a continuance to listen to jail calls made between A.C.T. and appellant
after appellant’s arrest . Appellant argued that the state disclosed a large digital file
containing the recordings of the jail calls, but that the file did not indicate the dates or times
of the calls. Appellant’s trial counsel also indicated she was unable to listen to the digital
recordings of the calls. The state argued that it disclosed the calls four months prior to trial
and specifically identified a particular call appellant sh ould review. The state also said it
was not informed of appellant’s counsel’s difficulty in reviewing the calls until appellant
requested a continuance two days before trial. The district court denied the request for a
continuance and ordered the state t o make the calls available to appellant in a format th at

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would be easily reviewable. The district court also found that appellant was on notice of
what was contained in the jail call recordings because he personally participated in those
conversations. Finally, the district court noted that appellant’s counsel would have enough
time to review the calls during jury selection.
At the conclusion of trial, the jury found appellant guilty of kidnapping, first-degree
criminal sexual conduct, and first-degree assault. After trial, appellant filed a motion for a
new trial on the basis of a Brady violation. Specifically, appellant alleged that the state
failed to disclose a portion of an interview during which A.C.T. stated she did not believe
appellant intended to rape her. The district court concluded that it did not believe that the
state cherry-picked the contents of that interview, and the record indicated that the essence
of the entire conversation was disclosed. The court further found that it did not believe the
state directly asked A .C.T. if she believed appellant intended to rape her, a conclusion
supported by an affidavit from the victim advocate, who was present for the interview.
Also, the district court found that, even if the undisclosed fact existed, appellant was not
prejudiced because A .C.T.’s alleged belief that appellant did not inte nd to rape her was
irrelevant. Furthermore, such evidence was cumulative with information contained in the
jail calls, wherein A.C.T. expressed that she thought he did not intend to rape her.
A jury convicted appellant of kidnapping, first-degree criminal sexual conduct, and
first-degree assault. Appellant was sentenced to 270 months in prison. This appeal
followed.

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D E C I S I O N
I. Appellant received effective assistance of counsel.
When evaluating an ineffective -assistance-of-counsel claim, this court applies the
two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052
(1984). State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (applying the Strickland test
to claims of ineffective assistance of trial counsel ). The first prong requires an appellant
to show that “counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2052. The second prong requires appellant to
show that “there is reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694, 104 S. C t. 2052. Both
prongs must be met. Id. at 687, 104 S. Ct. at 2052. “There is a strong presumption that a
counsel’s performance falls within the wide range of ‘reasonable professional assistance.’”
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quoting Strickland, 466 U.S. at 694,
104 S. Ct. at 2052).
A. Jail Calls
Appellant first argues that he received ineffective assistance of counsel because his
attorney did not investigate the jail calls during the f our months leading up to trial, citing
Rompilla v. Beard to support his argument. 545 U.S. 3 74, 125 S. Ct. 2456 (2005). In
Rompilla, the court found the attorney’s representation was “obvious[ly]” below the
objective standard of reasonableness because she failed to review a file containing
information about her client’s prior convictions in a case where the state was pursuing the
death penalty, a punishment requiring a showing of prior violent criminal acts. Id. at 383,

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125 S. Ct. at 2464. In this case, the jail calls contained much less important evidence than
the criminal history file in Rompilla, and even if they had been reviewed by appellant’s
attorney and used at trial, there is likely not a reasonable probability that the outcome of
the trial would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2052. The
jail calls submitted by the state contain two conversations between appellant and A .C.T.
On the first call, appellant asked A .C.T. to recant her testimony on the stand, and she
declined. Also on that call, A.C.T. expressed her belief that appellant did not intend to rape
her. On the second call, A .C.T. asked appellant why he told police that she had taken
ecstasy and claimed that she had not taken the drug on the night of the offense.
The evidence contained in the jail calls, when viewed in the light of the entire body
of evidence against appellant, is unlikely to have changed the outcome of the proceeding.
Whether A.C.T. believed appellant did not intend to rape her is irrelevant, because her
belief about appellant’s state of mind is not at issue in the case and does not tend to prove
any fact at issue in the case. The district court agreed when it stated that it would not have
admitted such evidence even if it had been offered, because A .C.T.’s opinion about
appellant’s state of mind is irrelevant and misleading.
On the second jail call, A .C.T. claimed she never took ecstasy the night of the
offense. This evidence could have been used to impeach A.C.T.’s trial testimony; however,
the evidence contained in the jail calls was scant compared to A.C.T.’s own trial testimony
of the events and the photographic evidence of her injuries. A.C.T.’s testimony with
respect to the details of the offense was consistent with her statements to police, and she
never recanted her testimony, even though she was urged to do so by appellant.

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Appellant’s claim of in effective assistance of counsel fails because, even i f
appellant’s attorney had investigated the jail calls, there is no reasonable probability that
their use at trial would have changed the outcome of the case. Strickland, 466 U.S. at 694,
104 S. Ct. at 2052.
B. Expert Witness
Appellant next argues that counsel’s failure to call a medical expert to testify about
A.C.T.’s alleged nerve damage in her hand constitu ted ineffective assistance of counsel.
The damage to A.C.T.’s hand is relevant to the first-degree assault conviction because that
crime requires a showing of great bodily harm. Great bodily harm means “bodily injury
which creates the high probability of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of the
function of any bodily member or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2016).
Appellant’s attorney’ s failure to call a medical expert to testify about A .C.T.’s
alleged nerve damage had no impact on the verdict. The state argued that A.C.T. suffered
great bodily harm based on the wide range of injuries she suffered at appellant’s hands.
Those injuries included facial beatings until A .C.T.’s eyes were swollen shut, repeated
strangulations, a period of unconsciousness, coughing up blood, bleeding from her ears,
involuntary urination, self-reported “nerve damage” to her hand, and general bruising and
swelling that took months to heal. Even if appellant’s attorney were able to rebut A.C.T.’s
claim that she suffered nerve damage by calling a medical expert, there is ample remaining
evidence for the jury to find that she suffered “other serious bodily harm” under the first -

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degree assault statute. Minn. Stat. § 609.02, subd. 8. Furthermore, determining whether
the pain in her hand was actually “nerve damage” does not rebut her testimony that she
experienced sharp pain in her hands that interfered with everyday bodily function.
Appellant’s attor ney’s failure to call a medical expert does not raise a reasonable
probability that, if she had called an expert, the outcome would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2052.
II. The district court did not abuse its discretion when it denied appellant’s
request for a continuance.

Appellant argues the district court abused its discretion by denying his request for a
continuance in order for his attorney to have time to review the jail calls. A district court’s
decision to grant or deny a request for a continuance will not be reversed absent an abuse
of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). When reviewing such
a decision, courts consider whether an appellant was so prejudiced in preparing or
presenting his defense as to materially affect the outcome of the trial. State v. Vance, 254
N.W.2d 353, 358-59 (Minn. 1977).
The district court denied appellant’s request for a continuance the day befor e trial.
The court found that any prejudice created by denying th e continuance with respect to the
jail calls would be mitigated by the state providing the jail calls in a readily usable format
for appellant to review. Second, the court gave some weight to the fact that appellant
participated in the recorded conversations and knew the contents of the conversation. Last,
the district court noted that, though the defense would be obtaining the jail calls in a readily

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usable form the day before trial, there was enough time during jury selection for the defense
team to determine if and how they wanted to use the jail calls at trial.
Our review of t he relevant jail calls shows they contain two pieces of information
that were potentially useful at trial. First, A.C.T. stated she did not believe that appellant
intended to rape her, and second, A.C.T. told appellant she did not take ecstasy on the night
of the offense. These two pieces of information are of little relevance to this case. At best,
they could have been used to test A.C.T.’s credibility. However, A.C.T.’s testimony with
respect to the events of the offense remained consistent from the day of the offense to trial,
and she never recanted her testimony. Whether she believed appellant intentionally raped
her or whether she took ecstasy that night are minor matters viewed alongside her detailed
and consistent account of the offense. Additionally, appellant’s attorney had the jail call
files in her possession for four months before trial. Although she encount ered technical
difficulties in listening to the calls, she never contacted the state to obtain the files in a
more readily usable format. Appellant’s ability to prepare and present his defense was not
prejudiced by the district court declining his request for a continuance the day before trial.
Accordingly, the district court did not abuse its discretion in denying the continuance.
III. The district court did not err by denying appellant’s request for a new trial.

Appellant argues the district court erred by denying his motion for a new trial
premised on a Brady violation. Appellant claims the state failed to disclose information
that A.C.T. believed appellant did not rape her. If the state possesses evidence favorable
to the defense in a criminal case , it must disclose that evidence to the defense. Brady v.
Maryland, 373 U.S. 83, 87 (Minn. 1963). The state has a duty to disclose any evidence it

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possesses or controls that “tends to negate or reduce the guilt of the accused as to the
offense charged.” Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005). To establish a
Brady violation, appellant must show: “(1) the evidence at issue is favorable to the accused,
either because it is exculpatory or it is impeaching; (2) the evidence was willfully or
inadvertently suppressed by the State; and (3) prejudice to the accused resulted.” State v.
Brown, 815 N.W.2d 609, 622 (Minn. 2012) (citing Pederson, 692 N.W.2d at 459).
With respect to the first Brady prong, the evidence at issue may be favorable to the
accused because it would allow the defense to impeach A .C.T. based on her belief that
appellant did not intend to rape her. Nevertheless, appellant’s argument fails on the second
and third prongs. For the second prong, the state did not suppress evidence that A.C.T.
believed appellant did not intend to rape her. That evidence was disclosed to appellant
when the state disclosed the jail calls. In the first jail call, A.C.T. says “I know you didn’t
intentionally do it. You just shouldn’t have done it.”1 This jail call was played for the jury,

1 The entire relevant portion of the recording is as follows (note, A .C.T. repeatedly refers
to herself in the third person in an attempt to remain anonymous):

I don’t think you is . . . I don’t, I don’t think, I don’t think, and
I think that she, I think that she thinks that you didn’t
intentionally do that, you know what I’m saying? As meaning,
no, you know what I’m saying, you probably, you know what
I’m saying, felt like, okay, this will make her, you know I’m
saying, feel better at the time, because y’all have had fights
before, where y’all have had, you know I’m saying sex—where
I do have sex but she does feel like you should have never did
that, you know I’m saying? Especially in the condition that I
was in. You know I didn’t know what condition that I was in.
You know I didn’t know what condition I was in but you knew
I was hurt . . . .

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so the jury heard the evidence appellant claims was suppressed. Appellant argues that the
evidence was revealed in a way that did “not afford the Defense a meaningful opportunity
to review, investigate, and prepare.” First, appellant had the jail -call recordings for four
months and did not contact the state regarding its difficulties in listening to them. Second,
the state highlighted to appellant the particular call he should review in preparing his case.
Third, the district court ordered the state to provide appellant with a readily usable
recording of the jail calls the day before jury selection and determined that appellant’s
counsel would have enough time to review the evidence before trial. Though appellant
claims this was not enough time to meaningfully review the evidence, that argument is
disingenuous considering the length and contents of the call. The relevant call is
approximately 18 minutes long and would have been easily reviewable by appellant’s
attorney during the two days of jury selection before trial. Furthermore, there is no
evidence that appellant’s attorney never actually listened to the calls. The evidence was
disclosed to appellant and was not suppressed by the state. Therefore, there is no Brady
violation.
On the third element, appellant has failed to show prejudice posed by any alleged
suppression of the evidence. As discussed above, the evidence had little probative value,
and was unlikely to have had an impact on the outcome of the trial , given A .C.T.’s
testimony against appellant. The district court did not abuse its discretion by finding there
was no Brady violation and declining to grant appellant a new trial.
Affirmed.