Travis Lee Keller, petitioner, Appellant,

This opinion will be unpublished and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
A18-0482

Travis Lee Keller, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 24, 2018
Affirmed
Jesson, Judge

Washington County District Court
File No. 82-CR-15-2158

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

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

Pete Orput, Washington County Atto rney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Considered and decided by Halbro oks, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Travis Lee Keller was convicted of third-degree criminal sexual conduct
for sexually assaulting A.H. in her home. Keller now challenges the district court’s denial

2
of his postconviction petition for relief in which he alleges p rosecutorial misconduct.
Specifically, Keller contends that the prosecutor circumvented the district court’s
evidentiary rulings preventing th e suggestion that A.H. was dru gged before the assault.
Because the prosecutor complied w ith the district court’s evide ntiary rulings and no
misconduct occurred, we affirm.
FACTS
In celebration of a new job, 40-year-old A.H. had dinner and dr inks in downtown
Minneapolis with a group of friends. The group, consisting of some of A.H.’s girlfriends
and their significant others, also included appellant Travis Lee Keller, who was dating one
of A.H.’s acquaintances. Some members of the group were drinking. A.H. estimated that
she drank wine at dinner, one beer at a brewery, and possibly a drink at a third bar.
By the time the group reached their final destination of the n ight, a dance club, the
group consisted of A.H., Keller and his girlfriend, and another couple. Keller and his
girlfriend were arguing, and Keller discussed the argument and his relationship with A.H.
This made A.H. uncomfortable, as she had only met Keller a few times previously and did
not know him well. According to A.H., she did not drink any alcohol at the dance club and
drank two bottles of water.1
On the way home from the dance club, A.H. was dizzy, exhausted , and felt like
something was wrong. Keller and his girlfriend were dropped off at the girlfriend’s home
first, and then the remaining couple took A.H. to her home. A.H.’s friend helped her inside,

1 A.H. testified that Keller gave her one of the bottles of wate r, but Keller denied ever
giving her water.

3
put her in bed, and got her water. A. H. fell asleep immediately. After taking care of A.H.,
the couple left, but they were unable to lock A.H.’s front door because it was a deadbolt
that could only be locked from the inside or with a key, which the couple did not have.
Meanwhile, Keller and his girlfriend continued arguing at her h ouse, and Keller
decided he did not want to stay there. Keller left his girlfriend’s house and went to A.H.’s
house. Keller testified that A.H. told him earlier in the even ing that he could stay there.
But after arriving at her home, Keller knocked on the door and called for A.H., and did not
get a response. Since the front door was unlocked, he went in and proceeded downstairs
to A.H.’s bedroom.
What happened next is disputed . A.H. testified that she was sleeping and awoke to
Keller on top of her having sex w ith her. Keller testified tha t he tapped A.H. on the
shoulder and she acknowledged him, so he got into bed with her t o “ m a k e a m o v e . ”
According to Keller, the two then had a consensual sexual encou nter in which they made
out, he performed oral sex on her, and then A.H. “grabbed [his] penis” and put it inside of
her. A.H. testified that the encounter was not consensual and described feeling panicked
and unable to move during the encounter. When A.H. was able to , she told Keller to get
off of her and leave, which he did. A.H. heard Keller’s car dr ive away, and she crawled
up her stairs to lock her front door.
A.H.—who testified she was in s hock about what happened—did not immediately
call the police. After speaking with her sister, A.H. reported the incident to the police two
days after the encounter with Keller. The following day, A.H. went to the hospital, where
a sexual assault exam was performed, and DNA from vaginal and cervical swabs matched

4
a sample given by Keller. During the exam, A.H. told the nurse that she felt like she was
drugged, which the nurse noted in the medical record. Police i nvestigated A.H.’s report,
and the state charged Keller with one count of third-degree criminal sexual conduct where
the victim is physically helpless.
Before trial, defense counsel moved to prevent any testimony th at A.H. was
drugged. The district court rule d that A.H. could testify abou t what she experienced and
what happened, but that she could not “speculate or claim that she was drugged in some
fashion” and that if that information came into the record, it would result in a mistrial.
At trial, A.H. testified, describing how she woke up to Keller having sex with her,
that she never invited him to her home, and that the encounter was nonconsensual. The
state also presented the testimony of A.H.’s two girlfriends who were with her the night of
the encounter, A.H’s sister, the sexual assault nurse examiner, two officers who worked on
A.H.’s case, and the laboratory scientist who performed testing on samples from A.H.’s
medical exam.
Before the Bureau of Criminal A pprehension (BCA) scientist tes tified, the state
requested that the district court permit testimony about BCA protocol for testing for alcohol
and a date-rape drug and what is done in a standard case in order for the jury to understand
why no testing for those substances was performed in this case. The district court permitted
the testimony, but emphasized to the parties that suggesting to the jury that A.H. was
drugged would result in a mistrial. The BCA scientist then testified that the BCA policy is
to not analyze blood or urine samples for alcohol or a drug cal led GHB—commonly

5
referred to as a date-rape drug—i n criminal sexual assault case s if the samples were
collected more than 24 hours after the incident occurred.
Keller also testified, describing that he never gave A.H. any water, that he asked
A.H. for permission to stay at her house and she agreed, and that the sexual intercourse was
consensual.
The jury found Keller guilty, an d the district court sentenced him to 60 months in
prison and 10 years of conditiona l release. Keller did not dir ectly appeal his conviction
but instead filed a timely motion for postconviction relief. I n his petition, Keller alleged
that the prosecutor committed reversible misconduct by eliciting testimony from witnesses
in a way that circumvented the district court’s ruling that pro hibited the suggestion that
A.H. was drugged. The district court summarily denied Keller’s postconviction petition.
Keller appeals.
D E C I S I O N
Keller challenges the denial of his postconviction petition on the basis that the
prosecutor committed misconduct during his trial. Keller conte nds that the prosecutor—
in violation of the district c ourt’s evidentiary ruling—elicite d testimony from the state’s
witnesses in a manner which strongly implied that he drugged A.H. Keller argues that this
resulted in a deprivation of his right to an impartial jury such that a new trial is warranted,
and that the district court abus ed its discretion by summarily denying his postconviction
petition.
We review the summary denial of a petition for postconviction r elief for an abuse
of discretion. Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018). But we review legal

6
issues de novo and factual determinations to determine if they are supported by sufficient
evidence in the record. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015). This court will
not reverse a denial of a petition for postconviction relief unless the district court “exercised
its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of
the law, or made clearly erroneous factual findings.” Id.
In this case, the postconviction court, applying the modified-plain-error standard of
review used for allegations of unobjected-to prosecutorial misconduct, determined that no
error occurred. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (establishing that
the defendant must establish (1) error and (2) that the error w as plain, and if established,
that (3) the burden then shifts to the state to show that the m isconduct did not affect the
defendant’s substantial rights).2
On appeal, Keller argues that the prosecutor committed miscondu ct by
circumventing the district cour t’s evidentiary order prohibitin g the suggestion that A.H.
was drugged. Specifically, Keller identifies four instances th at he alleges amounted to
misconduct: the elicitation of testimony from A.H. that Keller gave her a water bottle and
she did not feel well after, the introduction of the medical report from A.H.’s sexual assault
exam, the decision to question police officers about how A.H. s aid she felt during the
assault, and the prosecutor’s undue emphasis during the BCA scientist’s testimony on why
testing for a date-rape drug was not performed. Keller is corr ect that a prosecutor is

2 If all three elements of the test are met, this court corrects the error “only if it seriously
affect[s] the fairness, integrity, or public reputation of judi cial proceedings.” State v.
Peltier, 874 N.W.2d 792, 804 (Minn. 2016) (quotations omitted).

7
obligated to follow a court’s ev identiary orders, and the inten tional violation of an
evidentiary order amounts to misconduct. State v. Jahnke, 353 N.W.2d 606, 611 (Minn.
App. 1984). Accordingly, we address each of Keller’s evidentiary challenges in turn.
A.H.’s testimony
The district court permitted A.H. to testify about how she felt and her experience
but not to reach the conclusion that she was drugged. This is precisely what A.H. did.
A.H. testified about not being well and feeling like something was wrong, but nowhere in
her testimony did she mention feeling like she was drugged.
But Keller contends that the pros ecutor unduly emphasized the f act that Keller
allegedly gave A.H. a water bottle by asking about the water bo ttle immediately before
asking A.H. about how she was feeling on her way home. Keller argues that this implied
that Keller giving A.H. the water resulted in her not feeling well.
The record, however, does not support Keller’s contention that the prosecutor placed
undue emphasis on Keller giving A.H. a water bottle. The prosecutor asked A.H. what she
drank at the dance club, and A.H. responded by saying that Kell er and the other male
significant other in the group gave her bottles of water to dri nk. What A.H. was drinking
was relevant to her perception of the events of the evening, and nothing in A.H.’s testimony
indicated that she thought Keller drugged her. Similarly, the prosecutor asked A.H. if she
remembered drinking two bottles of water and if Keller gave her one of those bottles of
water, to which A.H. responded affirmatively. The prosecutor followed that question with
questions regarding whether A.H . had Keller’s phone number, tal ked to him without his
girlfriend around, or would have had a reason to invite him to stay at her house. This

8
question about the water bottle was in the context of the exten t of A.H.’s interaction with
Keller and did not imply that he drugged her or that the water was the reason why A.H. did
not feel well.
A.H.’s testimony complied with the district court’s ruling that she could testify
about how she felt and her experience but not reach the conclus ion she was drugged, and
the prosecutor complied with the district court’s evidentiary r uling. Accordingly, it was
not an abuse of discretion for the postconviction court to conc lude that it was not
misconduct for the prosecutor to elicit this testimony.
Medical report from the sexual assault exam
The district court expressly perm itted the introduction of the medical report from
A.H.’s sexual assault exam but o rdered counsel to redact a phra se where A.H. indicated
that she felt like she was drugged. Counsel complied exactly with the district court’s order,
and showed the redacted proposed exhibit to the court and defen se counsel before it was
introduced into evidence.
Despite the prosecution’s compliance with the district court’s order, Keller argues
that the order of the statements in the medical report attached significance to the fact that
Keller gave A.H. a water bottle. The portion of the report tha t Keller challenges reads as
follows:
I started not feeling well in the car on the way home.
[Redacted.] I wasn’t drinking towards the end. I had a couple
bottles of water. The second bottle of water was from this guy
(Travis). I haven’t felt like that before. I just got so tire d so
fast. I just kept thinking while we were driving “I gotta go t o
sleep.”

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Presumably, these statements are ordered in the manner that A.H. recounted her experience
to the nurse. Again, A.H. was d escribing how she felt and her experiences, which the
district court expressly permitted her to do. Further, Keller’s counsel saw this report before
it was admitted into evidence and participated in discussions about which portions to redact
and did not raise any concerns abo ut the passage he now challen g e s . B e c a u s e t h e
prosecutor complied exactly with the district court’s order to redact the document, it was
not an abuse of discretion for the postconviction court to conc lude that introducing the
medical record was not misconduct.
Police officer testimony
Two police officers involved with A.H.’s case testified at tri al. The prosecutor
asked the first police officer if A.H. told him how she was feeling after Keller left her home,
and the police officer responded that A.H. told him that she fe lt like she was paralyzed.
During cross-examination, the sec ond police officer testified t hat A.H. made a comment
about whether she unknowingly invited the assault. On redirect, the prosecutor asked the
second officer if A.H. described how her body was feeling during the assault, and the police
officer testified that A.H. said she felt paralyzed. This testimony is directly related to how
A.H. was feeling and what she e xperienced, again directly compl ying with the district
court’s evidentiary ruling.
Keller’s argument that this testimony from the police officers implied that Keller
drugged A.H. is not persuasive. The testimony was relevant to the issue of whether A.H.
was physically helpless—an element the state was required to pr ove—and these prior
consistent statements served to corroborate A.H.’s testimony ab out how she was feeling.

10
Further, the statements were directly related to how A.H. felt during the assault, a topic the
district court permitted testimony about. Accordingly, the pos tconviction court’s
conclusion that the prosecutor’s decision to elicit this testim ony was not misconduct was
not an abuse of discretion.
BCA scientist’s testimony
After a lengthy discussion about the scope of permissible testimony from the BCA
scientist, the district court ruled that the expert could testi fy about the protocol for testing
for alcohol and a date-rape drug and what is done in a standard case, but emphasized to the
parties that suggesting to the j ury that A.H. was drugged would result in a mistrial. The
BCA scientist then testified that BCA policy is to not analyze blood or urine samples for
alcohol or a drug called GHB in criminal sexual assault cases if the samples were collected
more than 24 hours after the incident occurred, as in this case. The scientist noted that an
analysis for a “date rape” drug was requested on the samples from A.H., but no testing for
GHB was done per the BCA polic y. The state emphasized multiple times that no testing
for GHB was performed. Facially, all of the questions focused on what the BCA policy
was with regards to testing for GHB and why no testing for that drug was done in this case.
Although the prosecutor asked ab out GHB testing multiple times in the context of
establishing the BCA protocol, the prosecutor never suggested that Keller drugged A.H.
Although Keller is correct that GHB was mentioned by the scientist several separate
times in her somewhat brief testimony, the prosecutor’s actions do not rise to the level of
misconduct. The prosecutor confined the questioning to the BCA policy, the scientific
reasons behind the policy, and why—in conformance with that pol icy—no testing was

11
done in this case. Further, bot h the district court and Keller ’s trial counsel were acutely
aware of the evidentiary ruling preventing the suggestion that A.H. was drugged, but
counsel did not object to the testimony or move for a mistrial. Because the prosecutor
complied with the district court’ s evidentiary ruling, it was n ot an abuse of discretion for
the postconviction court to conclude that eliciting testimony about GHB testing procedures
was not misconduct.
Finally, we note that throughout the trial, the district court a n d t h e p a r t i e s w e r e
proactive about addressing any evidentiary issues that could ha ve violated the district
court’s ruling preventing the suggestion that A.H. was drugged. All parties were involved
in discussions about the scope of permissible testimony from va rious witnesses and
discussed any concerns about evi dence before it was admitted. Further, the district court
advised parties that violating the ruling could result in a mis trial. The diligence of the
district court judge indicates that had the prosecution presented evidence or testimony in a
way which circumvented the evidentiary ruling, the district court would have addressed it
during the trial.
Each of Keller’s identified instances of alleged prosecutorial misconduct were in
compliance with the district court’s evidentiary rulings. Because the prosecutor’s actions
complied with the evidentiary rulings, no error occurred. Acco rdingly, Keller is not
entitled to any postconviction re lief. Therefore, the district court did not abuse its
discretion by summarily denying his petition for postconviction relief.
Affirmed.