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This opinion will be unpublished and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
A17-1817

State of Minnesota,
Respondent,

vs.

Mark Thomas McGowan,
Appellant.

Filed July 9, 2018
Affirmed
Cleary, Chief Judge

Stearns County District Court
File No. 73-CR-16-2881

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Kevin W. DeVore, DeVore Law Office, P.A., Woodbury, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Connolly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Mark Thomas McGowan challe nges his convictions of theft by swindle
and diversion of corporate property, arguing that: (1) the district court erred in excluding

2
certain evidence as a discovery sanction; (2) he received ineffective assistance of counsel;
(3) the district court’s determination of guilt was based on an incomplete record; and (4) the
district court erred in denying his motion for a new trial. We affirm.
FACTS
Until 2015, appellant was a member and 50% owner of an a cappella singing group,
formed in 1994 as an Iowa limited liability corporation (the band). Appellant also served
as the band’s chief financial officer until 2010. In that capacity, he opened a bank account
for the band, obtained credit cards and oversaw the financial aspects of the band, including
bookkeeping and payroll respon sibilities. Appellant and the other co-owner of the band
received guaranteed payments twice per month. Appellant paid his co-owner via paper
check and electronically transferred his own payments directly from the band’s account
into his personal account each month. Even tually the band hired a bookkeeper, who had
access to the band’s accounting software. In September of 2010, the bookkeeper observed
appellant changing dates of payments made fro m the band to himself late at night on the
band’s accounting software. The other members of the band reviewed the financial records
and discovered that appellant made $21,850 in unauthorized transfers and misused the
band’s credit card for unsanctioned personal expenses in the amount of $2,984.34 in 2010.
After a confrontation between the bandma tes, safeguards were put in place to
prevent further misuse and misappropriation of funds, and appellant agreed to pay back the
$21,850 to the band. Appella nt continued to misuse the band credit card and spent an
additional $2,320.55 on personal expenses between 2011 and 2014. Appellant left the band
in 2015 after a second confrontation about his misuse of the band’s credit card. Later that

3
year, his bandmates filed a police report deta iling the misuse of th e credit card and
misappropriation of funds.
Appellant was charged with theft by swindle and diversion of corporate property in
2016. On May 9, 2016, the state made its required disclosures and served appellant with a
demand for discovery. Appellant’s trial counsel (hereinafter “trial counsel”) requested and
received multiple continuances in order to obtain corporat e records from th e band. The
district court eventually scheduled trial for May 1, 2017. Trial counsel was unsuccessful
in compelling any discovery from the band and held a meeting on April 24, 2017 with the
prosecutor, a police officer, and appellant to discuss additional discovery. The purpose of
the meeting was for trial counsel to disclose electronic records that were on appellant’s
computer and other financial documents in his possession. The meeting ended without
trial counsel making any disclosures.
Between April 24 and 26 of 2017, trial counsel disclose d hundreds of pages of
documents, including emails between appella nt and other members of the band and
financial documents. The documents were on appellant’s computer during the discovery
process or were newly created by appellant himself. Instead of starting trial on May 1, the
district court held an evidentiary hearing to address the admissibility of the newly disclosed
documents. At the hearing, the parties agre ed that the newly disclosed documents would
be “pare[d] down” to a manageable level and provided to the state no later than 2:00 p.m.
that afternoon.
Trial counsel then produced a set of do cuments that includ ed new, yet-to-be-
disclosed information more than two hours after the district court’s deadline. The next day,

4
the district court addressed the late disclosures prior to trial. It wa s established that the
documents trial counsel produced were in appellant’s possession “all along.” Trial counsel
explained that he was not aware of everything appellant sent to the state and was not aware
that his subsequent disclosure contained new information. But he stated he was ready “to
go ahead with trial” because “r ealistically almost a ll of this information that’s in [his]
exhibit list” could be produced “from [the state’s] witnesses.” The district court excluded
all of appellant’s late disclosures after determining that exclusion was the proper discovery
sanction under State v. Lindsey , 284 N.W.2d 368 (Minn. 1979 ). At trial, trial counsel
referenced some of the documents that were excluded due to late disclosure, but was unable
to introduce the documents through the state’ s witnesses due to objections by the state.
Trial counsel was permitted to cross-examine multiple witnesses about the possibility that
the alleged illegal transactions were a result of appellant taking funds to cover a corporate
tax liability, and that the use of the credit card was actually permissible for personal
purchases.
Appellant did not testify at trial and his trial counsel did not present any witnesses.
In his closing argument, trial counsel argued th at the state failed to prove the elements of
theft by swindle because the transfers were not done with the intent to defraud and that
appellant was entitled to these distributions ba sed on his tax liability as a partner for the
previous year. He argued that the state failed to meet its burden of proof with respect to
the credit-card purchases because it failed to prove that appellant was the purchaser or that
the purchases were made for personal expenses. The district court found appellant guilty
on both counts.

5
Prior to sentencing, appellant retained ne w counsel. Appellant ’s newly retained
counsel filed a motion for a new trial on August 16, 2017. The motion for a new trial was
denied as untimely. Appella nt received a stay of impos ition and was or dered to pay
restitution in the amount of $13,010.89. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion in excluding the untimely
disclosures as a discovery sanction.

The district court excluded the untimely di sclosed evidence after determining that
the late disclosures violated Minn. R. Crim. P. 9.03 and that exclusion of the evidence was
the proper sanction under State v. Lindsey , 284 N.W.2d 368 (Mi nn. 1979). Appellant
argues that the exclusion of the evidence as a sanction deprived him of the right to present
a defense. We disagree.
Minnesota Rule of Criminal Procedure 9.03 governs the regulation of discovery in
criminal trials. All parties have a contin uing duty to make timely disclosures. The
“[d]iscovery rules are based on the proposition that the ends of justice will best be served
by a system of liberal discovery which gives both parties the maximum possible amount
of information with which to prepare their cases and ther eby reduces the possibility of
surprise at trial.” Lindsey, 284 N.W.2d at 372 (quotation omitted). The rules are “designed
to enhance the search for truth.” Id. (quotation omitted). District courts may sanction a
party for failing to comply with discovery rules or orders and “may, on notice and motion,
order the party to permit discovery, grant a continuance, or enter any order it deems just in
the circumstances.” Minn. R. Crim. P. 9.03, subd. 8 (emphasis added).

6
“Trial courts have broad discretion in imposing sanctions for violations of the
discovery rules.” State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998). Determining which
sanction to impose for “violations of discover y rules and orders is a matter particularly
suited to the judgment and discretion of the trial court” and “we will not overturn its ruling
absent a clear abuse of discretion.” Lindsey, 284 N.W.2d at 373. In Lindsey, the supreme
court laid out four factors that district cour ts should consider in determining appropriate
sanctions for the nondisclosure of witnesses: “(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.” Id. “[T]he preclusion of
evidence is a severe sanction that should not be lig htly invoked.” State v. Freeman, 531
N.W.2d 190, 198 (Minn. 1995).
The district court found that all four fact ors favored exclusion as a sanction. With
respect to the first factor, the district cour t found that appellant’s reasons for the late
disclosures “were unsatisfactory.” Appellant’s stated reasons for the late disclosures were
that he feared he would be accused of altering the financial documents on his computer and
he missed the deadline for paring down his di sclosures because of other obligations and
logistics. As to the second factor, the district court found that the prejudice to the state
would be high because of the volume of the late disclosures and the detailed nature of the
financial information in the doc uments. The district court al so found that the third and
fourth factors weighed in favor of exclusion because of the parties’ “opposition to granting
a continuance, the numerous prior continuances during omnibus, and the [trial counsel’s]
relative indifference to exclusion of his late disclosures.”

7
The district court properly applied the Lindsey factors in determining that exclusion
of the evidence was the proper sanction. Appellant was in possession of the evidence and
chose not to disclose hundreds of pages of correspondence and financial documents until
days before the trial. In an attempt to rectify this breach of the rules of discovery, the
district court gave appellant an extension to pare down the late disclosures to a manageable
level. Instead, trial counsel disclosed new material combined with some of the previously
identified late disclosures. The reason for the late disclosure weighs heavily against
appellant. The second factor also weighs in favor of exclusion because, while the prejudice
to the state may have been overstated given th e nature of the evidence, the policy interest
in preventing surprise still supports the sanction for late disclosure. The third factor also
weighs in favor of exclusion as trial counsel stated that a continuance was not necessary.
As to the fourth factor, appellant argues that, unlike in Lindsey which involved the
late disclosure of witnesses who did not have information related to the “predominant issue
in the case,” the evidence he sought to introduce was related to the central issue of the case
and had potentially exculpatory value. While the supreme court in Lindsey noted that the
excluded witnesses did not posse ss evidence that related to th e “predominate issue in the
case,” they also noted that the testimony coul d have been excluded on other grounds and
may have been cumulative. 284 N.W.2d at 374. Here, while some of the financial
documents were related to the central issue of the case, many of the documents could have
been excluded on relevance grounds and others would have been duplicative of the
documents produced by the state. Accordingly, we conclude that the district court did not
abuse its discretion in excluding the documents as a discovery sanction.

8
II. The performance of trial counsel did not constitute ineffective assistance of
counsel.

Appellant argues that he received ineffective assistance of counsel because his trial
counsel failed to investigate the evidence and to timely disclose exculpatory evidence. We
disagree.
Criminal defendants have a right to the effective assistance of counsel. U.S. Const.
amend. VI; Minn. Const. art. I, § 6. To es tablish a claim for ineffective assistance of
counsel, appellant must prove: “(1) that his counsel’s representation ‘fell below an
objective standard of reasonableness’; and (2) ‘there is a reasonable probability that, but
for the counsel’s unprofessional errors, the result of the proceedi ng would have been
different.’” Nissalke v. State , 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). The objective
standard of reasonableness is defined as “r epresentation by an at torney exercising the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances.” State v. Gassler , 505 N.W.2d 62, 70 (Minn. 1993) (quotation
omitted). Generally, we need not address both prongs of the Strickland test if one is
dispositive. Hawes v. State , 826 N.W.2d 775, 783 (Minn. 2013). Appellant bears the
burden of proving both prongs of the Strickland test. Gates v. State, 398 N.W.2d 558, 561
(Minn. 1987).
“Trial counsel’s performance is presumed to be reasonable.” State v. Vang , 847
N.W.2d 248, 266 (Minn. 2014 ). And this court will “not generally review a claim for
ineffective assistance of counsel based on trial strategy.” State v. Robertson, 884 N.W.2d

9
864, 877 (Minn. 2016). Trial strategy includes “the extent of counsel’s investigation and
the selection of evidence pr esented to the jury.” Vang, 847 N.W.2d at 267. Appellate
courts have rejected ineffective-assistance-of-counsel claims based on the failure to hire a
private investigator, State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986); failing to interview
prospective witnesses, Id.; failing to call prospective witnesses, Scruggs v. State , 484
N.W.2d 21, 27 (Minn. 1992); and failing to purs ue a theory of an a lternative perpetrator,
Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004). “Such trial tactics should not be
reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.”
Jones, 392 N.W.2d at 236. Trial counsel “must have the discretion and flexibility to devise
a trial strategy that best serves the client.” State v. Brocks , 587 N.W.2d 37, 43 (Minn.
1998).
Appellant’s challenge falls squarely within the scope of trial strategy. Appellant
argues that trial counsel shoul d have initiated a separate ci vil suit against the band to
compel discovery,1 made the decision to disclose the documents in appellant’s possession
sooner, or advised appellant to testify after the documents were excluded. The record
establishes that trial counsel requested and received multiple conti nuances in order to
obtain corporate records from the band but abandoned his attempts to do so shortly before
trial. Instead, he chose to disclose docum ents that had been in appellant’s possession

1 Trial counsel’s failure to initia te a civil suit cannot be cons idered ineffective assistance
of counsel: “[i]n contrast to the civil rules, the criminal rules allow only limited discovery”
and criminal defendants “should not be perm itted to circumvent th e limited scope of
discovery in the criminal proceeding by attemp ting to use civil-like investigatory tools.”
State v. Deal, 740 N.W.2d 755, 763 (Minn. 2007).

10
throughout the discovery proce ss in the days leading up to tr ial. After these disclosures
were objected to, trial coun sel made the strategic decisi on not to request a further
continuance because he believed he would be able to elicit the testimony from a different
source. Given the facts of this case and the high degree of deference we give to questions
of trial strategy, we conclude that appellant has failed to establish that trial counsel’s
performance fell below the objective standard of reasonableness.
III. The district court did not err in findi ng appellant guilty based on the record.
Appellant claims that, because of the dist rict court’s discovery sanction, its finding
of guilt was based on an incomplete record. We disagree.
We review an “erroneous exclusion of evid ence that violates the defendant’s right
to present evidence” for harmless error. State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).
We must be satisfied beyond a reasonable doub t that an average ju ry (i.e., a reasonable
jury) would have reached the same verdict “if the evidence had be en admitted and the
damaging potential of the ev idence fully realized.” State v. Greer , 635 N.W.2d 82, 90
(Minn. 2001) (quoting State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)).
Even assuming the evidence was excluded in error, the exclusion of the late
disclosures was harmless. The evidence against appellant was strong. Testimony
established that appellant had no right to the money he transferred into his account
surreptitiously and that he misused the band’s credit card for personal expenses. Further,
testimony established that appellant acknowledged his wrongdoing, agreed to pay the band
back, and failed to do so. Most importantly, appellant has failed to identify any specific
information or any specific document or set of documents that contained exculpatory

11
information in the hundreds of pages of documents excluded based on their late disclosure.
Therefore, even assuming the late disclosu res were excluded in error, any error was
harmless.
IV. The district court did not abuse its di scretion in denying appellant’s untimely
motion for a new trial.

Appellant argues that the district court abused its discretion in denying his motion
for a new trial. We disagree.
A district court may grant a new trial in th e interests of justice or any of the other
six grounds for a new trial found in Minn. R. Crim. P. 26.04, subd. 1(1). The motion “must
be based on the record” or a party may submit an affidavit or sworn statement containing
pertinent facts not in the reco rd. Minn. R. Crim. P. 26.04, subd. 1(2). The motion for a
new trial must be served within 15 days after the verdict and must be heard within 30 days
after the verdict, unless the court extends the period for good cause. Id., subd. 1(3). The
rules of criminal procedure do not allow a district court to extend the deadline for serving
a new-trial motion. Minn. R. Crim. P. 34.02. We review a district court’s denial of a new-
trial motion for an abuse of discretion. State v. Green, 747 N.W.2d 912, 917 (Minn. 2008).
The district court returned its verdict and written findings on June 16, 2017. After
the verdict was returned and before sentenci ng, appellant retained new defense counsel.
Appellant’s new counsel filed a motion for a new trial on August 16—more than a month
after the 15-day deadline lapsed. Appellant argues that the district court abused its
discretion by not exercising its discretion becau se it still had jurisdiction over the motion
even though it was untimely, relyi ng on this court’s decision in State v. DeLaCruz , 884

12
N.W.2d 878 (Minn. App. 2016). Appellant’s reliance on DeLaCruz is misplaced.
DeLaCruz involved a timely filed new-trial motion, followed by an amended motion that
included newly discovered evidence, after the 15-day deadline lapsed. 884 N.W.2d at 882.
Here, unlike DeLaCruz, appellant’s untimely motion was not tied to a timely filed motion
and therefore the district court did not have discretion to extend the filing deadline.
Moreover, a district court does not abuse its discretion in denying a new-trial motion
that “only summarily listed the grounds for a new trial without citing any authority.” State
v. Ahmed, 708 N.W.2d 574, 585 (Minn. App. 2006 ). Here, appellant’s motion for a new
trial was approximately one page and did not cite any author ity other than rule 26.04.
Because appellant’s new-trial motion was untimely and summarily listed the grounds for a
new trial without citations to th e record or to caselaw, the di strict court did not abuse its
discretion in denying the motion.
Affirmed.