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This opinion will be unpublished and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
A18-0178

State of Minnesota,
Respondent,

vs.

Brandon Jerome Hanson,
Appellant.

Filed June 22, 2020
Affirmed
Smith, Tracy M., Judge

Isanti County District Court
File No. 30-CR-16-139

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jeffrey R. Edblad, Isanti County Attorney, Joel B. Whitlock, Assistant County Attorney,
Cambridge, Minnesota (for respondent)

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

Considered and decided by Reilly, Pres iding Judge; Smith, Tracy M., Judge; and
Schellhas, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from the judgment of conviction for first-degree criminal sexual
conduct, and after a stay of the appeal for postconviction proceedings, appellant Brandon
Hanson argues that the district court erred by denying his request for a new trial based on
ineffective assistance of counsel. He argues that his trial counsel was ineffective due to his
failure to introduce ev idence that the victim recanted her allegations. Because Hanson’s
ineffective-assistance claim is based on his counsel’s trial strategy, his claim fails, and we
affirm.
FACTS
In March 2016, Hanson was charged with two counts of first-degree criminal sexual
conduct in violation of Minn. Stat. § 609.342 , subd. 1(a) (2014), and two counts of first-
degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2014).
The case proceeded to a jury trial, and the jury found Hanson guilty on all counts. The
following facts were presented at trial.
Jury trial
On March 9, 2015, 11-year-o ld R.B. told her mother that Hanson had sexually
assaulted her on multiple occasions. Hanson is R.B.’s maternal uncle; he lived with R.B.’s
mother (his sister) for about ten years and frequently helped care for her four children. R.B.
told her mother that Hanson had been doing “not very good things to her” and that Hanson
had made her “suck his d--k” on multiple occasions in different rooms in the house. R.B.’s

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mother, accompanied by her (the mother’s) grandfather, went to the police station that night
to report what R.B. had told her. When she and her grandfather returned to the house, the
grandfather woke Hanson up and told him that he needed to leave, which Hanson did.
A few days later, a law enforcement o fficer interviewed R.B. using the Corner
House protocol. R.B. was initiall y reluctant to talk about wh y she was there. When R.B.
did share what had happened, she immediately burst into tears. She explained that Hanson
had made her “suck his d--k” several time s throughout the past year. She could not
remember exact dates but believed that the mo st recent incident occurred in the fall of
2014. She recalled that the se xual encounters occurred two or three times in Hanson’s
bedroom, and once in the bathroom, and provided descriptions of those spaces. She stated
that Hanson would put a blanket over her head so that nobody would see her if they came
downstairs, and that he told her “don’t us e your teeth, use your lips.” She provided a
number of other sensory details about the encounters, describing, for instance, hearing the
zipper of Hanson’s pants and feeling like “h e was peeing in [her] mouth.” R.B. was 11
years old when these encounters occurred, and she did not immediately tell anyone because
she was scared.
R.B. testified at trial a nd provided details consiste nt with her Corner House
interview, and the state played a portion of the interview for the jury. The trial lasted five
days, with both parties calling numerous witnesse s. The state called R.B., R.B.’s mother,
the mother’s grandfather, the mother’s grandmother, R.B.’s aunt, the responding officer,

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and the officer who interviewed R.B. Hanson testified on his own behalf and denied the
allegations. Hanson also called his brother, who is also R.B.’s uncle, and five friends.
One of these five friends was L.C. L.C. testified that she has known Hanson for
about nine years and met him th rough her ex-boyfriend. She testified that she also knows
R.B. and R.B.’s sister and mother, and that R. B. and her sister used to visit and spend the
night at L.C.’s house. L.C. testified that she has a “pretty close” relationship with R.B. and
that, after hearing about the allegations against Hanson, she texted R.B. and asked if they
were true. She stated that sh e also spoke with R.B. in person at a Wal-Mart. L.C. then
attempted to testify that R.B. told her th at she (R.B.) made up the allegations “for
attention.” The state objected to this testimony, and the district court sustained the objection
and struck the testimony rega rding R.B.’s alleged statemen ts to L.C. from the record.
Defense counsel reserved the right to recall R.B. and ask her directly about the alleged
recantation, but did not do so.
The jury found Hanson guilty on all four counts of crim inal sexual conduct. The
district court imposed convictions and sent ences on the first two counts, resulting in a
sentence of 180 months’ imprisonment. Hanson f iled a timely notice of appeal with this
court, and we stayed the appeal to allow Hanson to pursue postconviction relief in district
court.
Postconviction evide ntiary hearing
The district court held a postconviction evidentiary hearing on Hanson’s claim that
he received ineffective assistance of trial counsel. Hanson argued in the district court, and

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argues here, that his trial attorney unreasonably failed to present admissible evidence that
R.B. told L.C. that she “mad e up” the sexual-assault allegations. Hanson’s trial attorney
testified at the evidentiary hearing and wa s questioned by both th e state and Hanson’s
appellate counsel. The following facts were presented at the hearing.
Hanson’s counsel had about fi ve years’ experience as a trial attorney in addition to
seven years’ experience as a judicial law clerk. In Hanson’s case, the trial attorney engaged
in vigorous pretrial motion practice, cond ucted extensive jury voir dire, presented
numerous defense witnesses, and cross-examined each of the state’s witnesses. His cross-
examination of the state’s w itnesses included impeachment of R.B.’s aunt with text
messages obtained, with Hanson’s help, in the middle of trial.
Hanson’s trial counsel testif ied about his knowledge of and investigation into R.B.’s
alleged recantation to L.C. He explained that , on June 6, 2017—just over a week before
Hanson’s trial—he received a report detailing L.C.’s account from his investigator, whom
he had asked to follow up on a tip from Hanson that L.C. may have useful information.
The report noted that the investigator talked to L.C. on that date. The report stated that L.C.
said she was “in disbelief” when she learne d about the allegations against Hanson. L.C.
said that, after hearing about the allegations, she contacted R. B. by either text message,
Facebook message, or in a face-to-face conversation—she could not remember which and
did not have records of any messages. During this contact, she told R.B. that she (L.C.) had
been sexually assaulted as a child and that it had severe ne gative impacts on her life. She
also told R.B. that, if what R.B. was saying was true, the person who did it belonged in jail,

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but that these type of allega tions should not be made up. L.C. claimed that, after she
confronted R.B., R.B. admitted the allegations were untrue and that she made them up to
get attention. Again, L.C. did not have any records of R.B.’s alleged statements.
L.C. also claimed that she spoke with R. B. in a Wal-Mart, where R.B. again told
her that she made up the allegations. L.C. told the investigator that she (L.C.) did not want
to see Hanson go to prison for something he did not do. She also made very derogatory
remarks about how R.B. and R.B.’s sister dressed, saying that they dressed like they were
“asking for” certain things to happen to them. L.C. explained that the reason she had not
brought the information about her conversations with R.B. forward sooner was that she had
nothing but her word to support her account.
Hanson’s trial attorney testified that he believed that the information L.C. gave the
investigator would be helpful to Hanson’s ca se because the defense’s theory of the case
was that R.B. was not telling the truth. He testified that, when he received the report, he
discussed it with two supervising attorneys. After the consultation, he decided not to
question R.B. about the alleged recantation on cross-examinati on but to instead just call
L.C. as a witness and question her about it. Hanson’s trial attorney acknowledged that he
thought that testimony from L. C. about R.B.’s statements would be impermissible under
the hearsay rules but that he decided to proceed that way anyway. He also stated that, when
the district court ruled during trial that the testimony from L.C. was inadmissible hearsay,
he agreed with that ruling.

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When asked whether his decision not to cross-examine R.B. about the alleged
recantation was strategic, Hanson’s trial attorney responded that the question was “a tough
question to answer” but stated:
I guess partially. I know I’d had conversations with my
supervisors about what they thought the st atements from
[L.C.], whether they were hearsay or not. So—and it came back
that they did not think that it was hearsay and there was not any
reason that I needed to ask [R.B.] anything about those
questions and I could just ask [L .C.] what [R.B.] had said to
her on that date in Walmart. And I had reservations about
whether or not it was hearsay and personally kind of thought it
was hearsay. But after speaking with my investigators—or my
supervisors decided I—that we were—that’s how we were
going to proceed with it.

When pressed again on whether the decision was strategic, he responded, “I guess I don’t
know how they’re go ing to classify it, if that’s stra tegic or not. I don’t—I don’t know if
that’s a strategy. It was my legal belief that it wasn’t hearsay.”
Hanson’s trial attorney was not asked and did not testify about why he did not recall
R.B. to ask her about the alleged recantation after the district c ourt precluded L.C.’s
testimony, although he had reserved the right to recall R.B.
The district court denied Hanson’s re quest for postconviction relief, determining
that his trial attorney’s conduct was trial strategy and accordingly not subject to review in
an ineffective-assistance-of-counsel claim. This court dissolved the stay of Hanson’s direct
appeal, and the sole issue now before us is whether Hanson was denied his constitutional
right to a fair trial based on ineffective assistance of counsel.

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D E C I S I O N
Claims of ineffective assistance of counse l involve mixed questions of law and fact.
State v. Mosley , 895 N.W.2d 585, 591 (Minn. 2017 ). When reviewing a postconviction
court’s decision to deny relief based on an ineffective-assistance-of-counsel claim,
appellate courts “consider the [postconviction] court’s factual findings that are supported
in the record” and “conduct a de novo review of the legal implication of those facts on the
. . . claim.” State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).
To determine whether a criminal defenda nt received ineffective assistance of
counsel, Minnesota courts apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Mosley, 895 N.W.2d at 591. Under the
first prong, the defendant must show that “his attorney’s perform ance fell below an
objective standard of reasonableness.” Id. (quotation omitted). An objective standard of
reasonableness is the level of customary sk ill and diligence that a reasonably competent
attorney would employ in representation under similar circumstances. Leake v. State, 767
N.W.2d 5, 10 (Minn. 2009). Courts “review in effective assistance cl aims with a strong
presumption that counsel’s performance was reasonable.” Swaney v. State , 882 N.W.2d
207, 217 (Minn. 2016). Under the second pr ong, the defendant must show that “a
reasonable probability exists that the outcome would have been different, but for counsel’s
errors.” Mosley, 895 N.W.2d at 591 (quotation omitted). The reviewing court considers the
totality of the evidence presented in determin ing if the result probab ly would have been
different. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). If the ineffective-assistance

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claim fails under either prong of the Strickland test, the reviewing court does not need to
address the other prong. Carridine v. State, 867 N.W.2d 488, 494 (Minn. 2015).
Minnesota courts will “gener ally not review an ineffe ctive-assistance-of-counsel
claim that is based on trial strategy.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
“Trial strategy” includes matters such as the selection of evidence presented to the jury,
what witnesses to call, what questions to as k witnesses, and whether to make objections.
State v. Bobo , 770 N.W.2d 129, 138 (Minn. 2009); State v. Voorhees , 596 N.W.2d 241,
255 (Minn. 1999). Such matters “lie within the proper discretion of trial counsel and will
generally not be reviewed later for competence.” Bobo, 770 N.W.2d at 138.
The postconviction court determined that Hanson’s ineffective-assistance claim
fails because it is based on trial strategy. It also concluded that, even if it could review the
claim, it fails under the prejudice prong of the Strickland test. We begin with whether
Hanson’s claim is based on trial strategy.
Hanson argues that his trial attorney’s failure to present ad missible evidence of
R.B.’s alleged statements to L.C. “was not a result of a strategic decision” but rather
resulted from a failure to understand and comply with the rules of evidence. He argues that,
while R.B.’s alleged out-of-court statements to L.C. were inadmissible to prove the truth
of the matter asserted in the statements pursuant to Minn. R. Evid. 801 and Minn. R. Evid.
802 (i.e., inadmissible as hearsay), the st atements were admissible for impeachment
purposes. He proposes that hi s trial attorney could have im peached R.B. with the alleged
statements by complying with the procedure outlined in Minn. R. Evid. 613(b). Rule 613(b)

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states that “[e]xtrinsic evidence of a prio r inconsistent statemen t by a witness is not
admissible unless the witness is afforded a prior opportunity to explain or deny the same
and the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require.” Under Hanson’s argument, the “extrinsic evidence”
would have been L.C.’s statem ents that R.B. recanted her a llegations. He argues that the
record is “unusually clear” here in that it shows that his attorney wanted to present evidence
of the alleged recantation to the jury “but was unable to only becaus e he did not comply
with the rules of evidence.”
The state responds that the record shows that Hanson’s trial attorney did understand
the rules of evidence and that his understandi ng of the rules supports the postconviction
court’s determination that his decision was ba sed on strategy rather than legal error. The
state asserts that Hanson’s trial attorney’s decision was not only strategy, but a reasonable
strategy, given the reliability problems with the defense witness who would testify about
R.B.’s “possible recantation.” The state also poi nts to the trial attorney’s experience and
the quality and extent of his other efforts th roughout the course of the proceedings, to
bolster its argument that he was a competent, zealous advocate.
An attorney’s unreasonable mistake of la w can, in some circumstances, constitute
an objectively unreasonable performance under the first Strickland prong. See Hinton v.
Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 1089 (2014) (“An attorney’s ignorance of a
point of law that is fundamental to his case combined with his fa ilure to perform basic
research on that point is a quintessential example of unreasonable performance under

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Strickland.”); State v. Ellis-Strong , 899 N.W.2d 531, 539 (M inn. App. 2017) (“An
attorney’s ‘mistake of law’ because of a failure to look up a statute may amount to an
objectively unreasonable performance.” (empha sis added)). But “strategic choices made
after thorough investiga tion of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.
Here, Hanson’s trial attorney testified th at, after he learned about R.B.’s alleged
statements to L.C., he cons ulted with supervisors about how to proceed. Although he
“personally kind of thought it [would be] hearsay” if L.C. testified about R.B.’s statements,
he decided to proceed by asking L.C. about the statements anyway. Even if we assume this
initial decision was based on an erroneous view of the law, the record shows that, after the
district court excluded L.C.’s testimony about R.B.’s statements as hearsay, Hanson’s trial
attorney knew that he could recall R.B. and ask her whether she ever recanted her
allegations. In fact, after Hanson’s counsel made an offer of proof regarding the content of
R.B.’s alleged statements to L.C. and suggested that the st atements would go not only to
the truth of the matter but also to R.B.’s cr edibility, the district c ourt stated that the
credibility component “certainly is an appropriate purvi ew for cross-examination or for
calling [R.B.] as a witness.” Nothing from th e postconviction evidentiary hearing record
suggests that Hanson’s trial attorney did not understand hi s option to ask R.B. about the
statements and then to a ttempt to impeach her if she denied making them. See Minn. R.
Evid. 613(b). His decision not to take the potential path to admitting the statements for
impeachment purposes, which would require questioning R.B. about them, was strategic.

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The supreme court has held that an atto rney’s choice regarding whether to cross-
examine a witness, and specif ically an alleged victim in a sexual-assault case, is
unreviewable trial strategy. See State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001). In Vick,
the appellant argued that his trial attorney did not “effectively cro ss-examine [the child-
victim] about her different accounts of the [sexual] abuse” when the child had provided
new details about the alleged touching by the appellant after her initial report. Id. The
supreme court concluded that the attorney’s cross-examination of the victim was a matter
of trial strategy that was not reviewable for competence. Id. The court further decided that,
even if it were reviewable in that case, the attorn ey’s decision not to aggressively cross-
examine the child-victim “was reasonable in order to avoid creating sympathy for [the
child] and hostility toward [the defendant] or his attorney.” Id.
Though this case f actually differs from Vick in that the victim allegedly recanted
entirely, rather than added details to, her allegations, the record suggests similar, and even
additional, reasons that Hanson’s trial atto rney made a strategic decision not to cross-
examine R.B. about her alleged conversations with L.C. The timing of L.C.’s report—made
about a week and half before trial, when the case had been pending for over a year and the
allegations arose over a year before that—along with the content of L.C.’s statement to the
investigator, would have provided the state with abundant ammunition to impeach L.C.’s
credibility. By asking R.B. about her alleged statements to L.C., the defense risked pitting
the credibility of R.B.—who had testified c onsistently and in detail about the sexual
assaults against her—against the credibility of L.C. Attempted im peachment of R.B.,

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which could have consumed significant time, could conceivably have generated additional
sympathy for R.B. and, as the state points out, been perceived by the jury as a last-minute,
“desperate” effort on Hanson’s part to support his case. This context in which Hanson’s
trial attorney made his decision supports our conclusion that he was acting strategically,
rather than based on a misunderstanding of the evidentiary rules, when he declined to cross-
examine R.B. about the alleged recantation.
We conclude that the district court corr ectly determined that Hanson’s ineffective-
assistance-of-counsel claim is not subject to review under Strickland because it is based on
trial strategy. Accordingly, we need not reach the prejudice prong of the Strickland test.
Affirmed.