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This opinion will be unpublished and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
A18-1603

State of Minnesota,
Respondent,

vs.

David Edward Palmer,
Appellant.

Filed October 21, 2019
Affirmed; motion granted
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-22612

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

Michael O. Freeman, Hennepin Coun ty Attorney, Jean Burdorf, Ass istant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Roy G. Sp urbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cochran, Ju dge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
COCHRAN, Judge
Appellant David Edward Palmer challenges his convictions for do mestic
assault-harm, domestic assault-fear, and domestic assault by strangulation. Palmer argues
that the evidence introduced at trial is insufficient to support the three convictions. Palmer
also asserts several pro se clai ms. Because we conclude that t he evidence is sufficient to
support the convictions and that Palmer’s pro se claims are eit her without merit or not
properly before this court, we affirm.
FACTS
In 2017, the state charged appe llant David Edward Palmer with: (1) domestic
assault-harm under Minn. Stat. § 609.2242, subd. 4 (2016); (2) domestic assault-fear under
Minn. Stat. § 609.2242, subd. 4; and (3) domestic assault by st rangulation under Minn.
Stat. § 609.2247 (2016). The charges relate to an incident involving his romantic partner,
R.J. The state also gave notice that it would seek an aggravated sentence based on the fact
that a child was present during the incident. The case proceed ed to a bench trial. Palmer
stipulated that he had two or more previous qualified domestic violence-related
convictions, making the charges under Minn. Stat. § 609.2242 felony-level offenses.
The state called R.J. to testify. R.J. had been in a relations hip with Palmer since
early 2016. She testified that on September 3, 2017, she and Palmer got into an argument
about Palmer’s infidelity. At about 1:30 a.m. on September 4, Palmer came to R.J.’s home
while R.J. was sleeping and entered her bedroom. Palmer asked R.J. to fight someone for
him, and R.J. refused. R.J. tes tified at trial that Palmer was intoxicated. She said that

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Palmer yelled at her and called her names. R.J. attempted to g et out of bed and leave her
room, but Palmer prevented her from leaving by grabbing her fro m behind and choking
her. R.J. lost consciousness. At some point near the beginning of this altercation, Palmer
took R.J.’s phone and keys.
Palmer lightly hit R.J. on the face to wake her up after she l ost consciousness. When
R.J. woke up, Palmer was standing over her. R.J. tried to craw l out of the bedroom, but
Palmer blocked the exit. At that point, R.J.’s young son came out of his bedroom and told
Palmer to stop. Palmer told R.J. to be quiet, threatened to ki ll her, and shoved her head
into a wall. The child again told Palmer to stop. Palmer told the child that he was probably
going to kill R.J. but that he would let the child live.
Palmer continued to threaten to kill R.J. and insult her with the child in their
presence. R.J. testified that Palmer had been holding a black handgun during the incident,
and that Palmer used a significant amount of force during the a ssault. Palmer eventually
went to a different room. When he fell asleep, R.J. gathered her son and her other children
who were in the house, found her spare keys, and drove to a rel ative’s house where she
called 911. She told the 911 operator that Palmer choked her, was abusive, and threatened
to kill her. R.J. then went to the emergency room.
The emergency room doctor (the ER doctor) testified that R.J. reported that her
“significant other” assaulted her, strangled her, and hit her i n the head. R.J. told the ER
doctor that she had passed out. R.J. testified that the ER doctor had observed swelling on
R.J. during the hospital examination, but the ER doctor testifi ed that she saw no external
signs of bruising, swelling or lacerations. The ER doctor also testified that it is “not

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unusual” for there to be no exte rnal signs of trauma after a st rangulation and that it does
not take much force to cause a person to lose consciousness via strangulation. The ER
doctor also testified that the pain that R.J. reported “could be” consistent with R.J.’s report
that she was strangled.
Maple Grove Police Officer Anton, who has 29 years of experien ce as a police
officer, spoke with R.J. at the hospital. R.J.’s account of th e assault was generally
consistent with her trial testimony. R.J. told Officer Anton t hat it felt like her eyes were
going to pop out of her head when Palmer choked her. Officer Anton testified that he was
surprised that he did not observe any injuries on R.J. at the h ospital, but R.J. told Officer
Anton that she had pain in her neck, arms, and head.
After speaking with R.J., Officer Anton attempted to locate Pa lmer by going to
R.J.’s house, but Palmer was not there. Officer Anton then called R.J.’s phone in an attempt
to contact Palmer because Palmer had taken R.J.’s phone during the assault. Palmer
answered R.J.’s phone. Palmer said that he was not at R.J.’s h ome and that he was in
another city.
The day after the incident, Det ective Tschida recorded a conversation she had with
R.J. R.J. provided a description of the assault that was gener ally consistent with her trial
testimony and with the account she had given to Officer Anton. Tschida also asked R.J. if
Palmer had ever used a weapon against her or threatened her before this incident. R.J. told
Tschida about an incident in which Palmer grabbed a knife during an argument.
About a week after the incident, R.J. sought medical care at a n urgent care facility.
The urgent-care doctor testified that R.J. reported that she ha d a sore throat and jaw pain

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that started after she was choked by her boyfriend. R.J. also asked the urgent-care doctor
to administer a strep test. The urgent-care doctor observed re dness and swelling in R.J.’s
t h r o a t a n d j a w a r e a . T h e s t r e p t e s t w a s n e g a t i v e . T h e u r g e n t -care doctor agreed on
cross-examination that if someone applied a significant amount of force in strangling
someone, he would expect to see a physical injury on the victim shortly after the
strangulation.
Palmer and another woman, B.H., with whom Palmer was romantica lly involved,
testified to a different account of the incident. They both testified that they were watching
a movie together at R.J.’s house when R.J. unexpectedly came ho me. They testified that
R.J. became angry, yelled at the m, and threw shoes and her phon e at them. Palmer and
B.H. claimed that they then left, and that Palmer never assaulted R.J.
Palmer and his friend E.E. also testified that Palmer spoke to R.J. on the phone a
few days after the incident. E.E. testified that he was presen t during the call and Palmer
had the call on speakerphone at the time. According to Palmer and E.E., R.J. told Palmer
that she would not retract her statement about Palmer because s h e d i d n o t w a n t t o b e
charged with making a false police report and because she did not want to lose her housing.
The district court found that R.J.’s testimony was credible an d, accordingly, found
Palmer guilty of all three counts. The district court also fou nd that the state had proven
that a child was present during the incident. At the verdict return and sentencing hearing,
the district court orally pronoun ced that it was formally convi cting Palmer only of the
domestic assault-harm count and that it would not enter a convi c t i o n o n t h e o t h e r t w o
counts. The warrant of commitment, however, shows that Palmer was formally convicted

6
of all three counts. 1 The district court sentenced Palmer to 42 months in prison fo r the
domestic assault-harm offense and did not pronounce a sentence on the other two counts.
Palmer appeals.
D E C I S I O N
Palmer maintains that the evid ence supporting his convictions i s insufficient
because R.J. was not credible, a rguing that the absence of corr oborating evidence of

1 We observe that the district court appears to have intended to adjudicate a conviction on
only one count. This approach is consistent with the procedure outlined by the Minnesota
Supreme Court in State v. LaTourelle:

We hold that the proper procedure to be followed by the
trial court when the defendant is convicted on more than one
charge for the same act is for the court to adjudicate formally
and impose sentence on one c ount only. The remaining
conviction(s) should not be formally adjudicated at this time.
If the adjudicated conviction is later vacated for a reason not
relevant to the remaining unadj udicated conviction(s), one of
the remaining adjudicated convictions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for the time already served on the vacated sentence.

343 N.W.2d 277, 284 (Minn. 1984); see also Minn. Stat. § 609.04 (2016) (“Upon
prosecution for a crime, the actor may be convicted of either t h e c r i m e c h a r g e d o r a n
included offense, but not both.”).

While the district court’s orally pronounced sentence prevails over an inconsistent
record due to clerical error, appellate courts look to the offi cial judgment of conviction in
the district court file “as conclu sive evidence of whether an o ffense has been formally
adjudicated.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted); see
also State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002) (concluding that the district
court’s oral pronouncement of a sentence controls over a writte n sentencing order if the
two conflict). Because the partie s acknowledge that Palmer was convicted of multiple
offenses in their appellate brief s, and because Palmer has not raised the issue of multiple
convictions on appeal, we review the sufficiency o f the evidenc e supporting all three
convictions, consistent with the warrant of commitment.

7
physical injuries immediately after the assault and other incon sistencies in her testimony
cast “grave doubt” over her trial testimony and out-of-court statements. Palmer also makes
a number of pro se claims in a supplemental brief. We first ad dress the sufficiency
challenge and then turn to Palmer’s pro se arguments.
I. The evidence is sufficient to support Palmer’s convictions.
Palmer was convicted of two counts of felony domestic assault, harm and fear, under
Minn. Stat. § 609.2242, subd. 4. A person is guilty of felony domestic assault if the person
assaults a family or household member and the assault occurs within ten years of the first
of two or more previous qualified domestic violence-related convictions or adjudications.
Minn. Stat. § 609.2242, subds. 1, 4 (2016). A person commits a n assault if the person
commits an act with intent to cause fear in another of immediat e bodily harm or death, or
intentionally inflicts or attempts to inflict bodily harm upon another. Id., subd. 1. Palmer’s
two convictions for domestic as sault reflect these two means of committing an assault—
one conviction is for intentionally inflicting harm and the oth er is for committing an act
with intent to cause fear.
Palmer was also convicted of domestic assault by strangulation under Minn.
Stat. § 609.2247. A person is guilty of domestic assault by st rangulation if the person
assaults a family or household member by “intentionally impedin g normal breathing or
circulation of the blood by applying pressure on the throat or neck or by blocking the nose
or mouth of another person.” Minn. Stat. § 609.2247.
Palmer argues that the evidence is insufficient to support all three of his convictions.
In reviewing the sufficiency of the evidence supporting a convi ction, this court conducts

8
“a painstaking analysis of the re cord to determine whether the evidence, when viewed in
the light most favorable to the conviction, was sufficient.” State v. Ortega, 813 N.W.2d
86, 100 (Minn. 2012) (quotation omitted). We assume that “the [fact-finder] believed the
state’s witnesses and disbelieve d any evidence to the contrary. ” State v. Caldwell ,
803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). “[W]e will not disturb the verdict
if the [fact-finder], acting with due regard for the presumptio n of innocence and the
requirement of proof beyond a re asonable doubt, could reasonabl y conclude that the
defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at 100.
Palmer’s convictions were prim arily supported by R.J.’s testimo ny about the
assault. The supreme court has held that “a conviction can res t on the uncorroborated
testimony of a single credible witness.” State v. Foreman , 680 N.W.2d 536, 539
(Minn. 2004) (quotation omitted). “The weight and credibility of individual witnesses is
for the [fact-finder] to determine.” State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The
court of appeals “cannot retry the facts.” Id. at 391.
Here, the district court found R.J. to be credible. R.J.’s tes timony established that
she and Palmer were family or household members, that Palmer as saulted her both by
committing acts with intent to cause R.J. fear of immediate bod ily harm or death and by
intentionally inflicting bodily harm on R.J., and that Palmer strangled R.J. by intentionally
impeding normal breathing or circulation by applying pressure t o R.J.’s throat or neck.
R.J.’s testimony alone is therefore sufficient to support each of the district court’s guilty
verdicts. See Foreman, 680 N.W.2d at 539. Consequently, we conclude that the evidence
was sufficient to support Palmer’s three convictions.

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Palmer, however, argues that we should reverse his convictions notwithstanding the
district court’s credibility determination because of the evide nce that there were no
observable signs of injury immediately after the assault and be cause of inconsistencies in
R.J.’s purportedly uncorroborated testimony. He argues that th is evidence—or lack
thereof—should cause this court to entertain “grave doubts” as to Palmer’s guilt and
reverse the conviction or remand for a new trial. See State v. Kallestad, 206 N.W.2d 557,
557 (Minn. 1973) (reversing a nd remanding a conviction for a ne w trial based on “grave
doubts” as to the defendant’s guilt).
The Minnesota Supreme Court has reversed convictions that reste d on a witness’s
uncorroborated testimony only w hen there were “additional” reas ons to question the
witness’ credibility. Foreman, 680 N.W.2d at 539. Palmer likens the evidence here to that
in State v. Langteau , in which the appellant was convicted based on the uncorrobora ted
testimony of the alleged robbery victim. 268 N.W.2d 76, 77 (Mi nn. 1978). The supreme
court ordered a new trial despite the jury’s verdict that the appellant was guilty of robbery,
noting oddities and omitted information in the record:
The reason why [the victim] would have remained at the
hospital until almost midnight—long after normal visiting
hours—is unexplained. The r eason why [appellant] would
have held up [the victim], with whom he was well acquainted,
is left a mystery.
Id.
Palmer asserts that the ER doctor’s testimony and Officer Anto n’s testimony create
a similarly unexplained or mysterious aspect of R.J.’s testimony—essentially, Palmer asks
if he had assaulted R.J. with significant force, why did the ER doctor and Officer Anton

10
not observe any external injuries immediately after the assault ? But unlike in Langteau,
the answer to this question is neither unexplained nor mysterious. The ER doctor testified
that it is “not uncommon” for the re to be no observable externa l injuries after a
strangulation, and that a significant amount of force is not re quired to cause someone to
lose consciousness.
The other inconsistencies cited by Palmer are minor and were c onsidered by the
district court in its findings supporting the guilty verdicts. Palmer argues that R.J. testified
about details of the assault that she had not told police in pr ior statements. He notes that
R.J. testified that Palmer had punched a hole in the wall durin g the incident, and that she
sent a picture of the hole to the police, but the police did no t have a picture of the hole.
Finally, he argues that it is plausible that R.J. fabricated th e report because she was angry
with Palmer over his infidelity. The district court considered the inconsistencies and
omissions in R.J.’s testimony, b ut still determined that R.J. w as credible because any
inconsistencies were “within the realm of human nature,” that R.J. had a lot going on at the
time of the prior statements, and that R.J. had only responded to questions that she was
asked. We defer to the fact-finder’s credibility determination s and its weighing of
conflicting or inconsistent statements. See Foreman , 680 N.W.2d at 539; see also
State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (deferring to the jury’s cr edibility
determination when the jury was apprised of evidence that arguably impugned a witness’s
credibility). These minor inconsistencies and omissions are not uncommon in a trial, and

11
we do not conclude that they undermine the district court’s credibility determination in this
case.2
We are not persuaded that ther e are unexplained or mysterious a spects of R.J.’s
testimony as there were in Langteau, and we conclude that the district court properly
considered inconsistencies in R.J.’s testimony before determining that she was credible. In
short, we entertain no “grave doubts” as to Palmer’s guilt, and are not convinced that there
are “additional” reasons to question R.J.’s credibility not considered by the district court.
See Foreman, 680 N.W.2d at 539; Kallestad, 206 N.W.2d at 557.
Finally, Palmer contends that the district court made a clearly erroneous finding of
fact when it found that both the ER doctor and the urgent-care doctor observed swelling in
R.J.’s neck. This finding is erroneous because the ER doctor t estified that she did not
observe swelling. Only the urgent -care doctor testified to obs erving swelling. Although
this specific finding is clearly erroneous, we conclude that R. J.’s testimony alone is
sufficient to support the convictions. 3 See Hanka v. Pogatchnik , 276 N.W.2d 633, 636
(Minn. 1979) (“Where a decisive finding of fact is supported by sufficient evidence and is

2 We also note that, unlike in Langteau, R.J.’s testimony was corroborated—her consistent
and repeated accounts of the incident corroborate her trial tes timony, and the urgent-care
doctor observed redness and swe lling on R.J.’s throat and jaw t hat were consistent with
R.J.’s allegations. See State v. Daby, 359 N.W.2d 730, 733 (Minn. App. 1984) (noting that
a complainant’s “prompt and cons istent accounts” of an assault may corroborate the
complainant’s trial testimony). Thus, Palmer’s conviction was not based on wholly
uncorroborated testimony, as he asserts in his appellate brief.
3 We also observe that, in discussing its reasons for finding R.J. credible, the district court
did not cite the ER doctor’s testimony, and while the ER doctor did not observe swelling,
the urgent-care doctor did.

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adequate to sustain the conclusi ons of law, it is immaterial wh ether some other findings
are not so sustained.”).
II. Palmer’s pro se arguments are meritless or not properly before this court.
Palmer submitted a pro se supplemental brief that asserts seve ral arguments. The
brief is difficult to follow. W hile a self-represented litigan t “is usually accorded some
leeway in attempting to comply with court rules, he is still not relieved of the burden of, at
least, adequately communicating to the court what it is he want s accomplished and by
whom.” Carpenter v. Woodvale, Inc. , 400 N.W.2d 727, 729 (Minn. 1987). We will
address Palmer’s pro se arguments to the extent we understand them.
A. Motion to Strike Addendum Documents
As a preliminary matter, we address the state’s motion to stri ke the documents
contained in Palmer’s supplementa l addendum. Palmer’s addendum includes email
exchanges, medical records, and other documents that were never submitted to the district
court. The state argues that the documents are outside the record on appeal and should not
be considered. The record on appeal includes the papers filed in the district court, the
offered exhibits, and the transcript of the proceedings, if any . Minn. R. Crim. P. 28.02,
subd. 8. We agree that the documents contained in Palmer’s add endum are not contained
in the record on appeal. Accordi ngly, we grant the state’s mot ion to strike and do not
consider those documents in our review of Palmer’s arguments on appeal.

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B. Fraud and Conspiracy
Palmer asserts that the district court judge, the prosecutor, and his defense attorney
committed fraud on the court 4 for several reasons, including that the district court judge
was biased and should have recuse d himself, that the prosecutor issued an arrest warrant
without probable cause, that the district court judge shifted t he burden of proof from the
state to prove guilt to Palmer to prove his innocence, and that the district court judge
ignored Officer Anton and the ER doctor’s testimony that there were no observable signs
of injury. Palmer also argues that the district court judge, the prosecutor, and his defense
attorney were involved in a conspiracy to kidnap him for the pu rpose of profiting on bail
money that he posted.
Palmer makes no citations to the record to support many of thes e claims, and we
discern no support for them in our review of the record. Generally, Palmer’s argument on
these issues appear to be based on his belief that the district court judge could not have
convicted him based on the evidence produced at trial, and that the only logical explanation
of the guilty verdicts are that the district court judge and th e attorneys were biased or
conspiring against him. But as discussed above, we conclude th a t t he r e w a s s uf f i c i e nt
evidence to support the guilty v erdicts. Additionally, we find no factual support in the
record for Palmer’s claims that the district court shifted the burden of proof to Palmer, that
the district court judge was obligated to recuse himself from the case, or that the prosecutor

4 Fraud on the court is a doctrine that allows a party to move to set aside a judgment based
on “an intentional course of material misrepresentation or non-disclosure, having the result
of misleading the court and opposing counsel.” See Maranda v. Maranda , 449 N.W.2d
158, 165 (Minn. 1989).

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authorized a warrantless and unsupported arrest. Because the d istrict court’s verdict was
supported by sufficient evidence and because there is no eviden ce in the record that the
district court or prosecutor engaged in any of the conduct alleged by Palmer, we conclude
that these claims are meritless.
C. Ineffective Assistance of Counsel
Palmer maintains that he received ineffective assistance of counsel for a variety of
reasons, including that trial counsel coerced him into waiving his right to a jury trial, telling
Palmer that there is no chance that he would be convicted, lying to Palmer, failing to make
pretrial motions and object to the admission of evidence, and refusing to provide discovery
t o P a l m e r . “ T o p r e v a i l o n a n i n effective-assistance-of-counsel claim, [appellant] must
prove that (1) counsel’s performance fell below an objective st andard of reasonableness,
and (2) a reasonable probability exists that, but for counsel’s errors, the outcome would
have been different.” Staunton v. State , 784 N.W.2d 289, 300 (Minn. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984)). Because
both prongs of the Strickland t e s t a r e r e q u i r e d , w e n e e d n o t a n a l y z e b o t h i f o n e i s
determinative. Id.
“When a claim of ineffective assistance of trial counsel can be determined on the
basis of the trial record, the claim must be brought on direct appeal or it is Knaffla-barred.”
Andersen v. State , 830 N.W.2d 1, 10 (Minn. 2013). But when the claim requires
examination of evidence outside of the record or additional fact-finding, the claim is better
brought in a postconviction proceeding. Id.

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Palmer’s ineffective-assistance-of-counsel claim is based on st atements and
discussions outside the record on appeal, and the record theref ore does not adequately
reflect whether appellant’s trial counsel provided ineffective advice or assistance. Because
the record is insuffici ent to decide Palmer’ s ineffective-assistance-of-counsel claim, we
decline to address the issue. Palmer is free to raise this issue in a subsequent postconviction
proceeding following this appeal. See State v. Gustafson , 610 N.W.2d 314, 321
(Minn. 2000) (preserving appella nt’s right to pursue ineffectiv e-assistance-of-counsel
claim in postconviction proceedings).
D. Miranda Issue
Citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), Palmer argues that
the district court erred by admitting evidence of a phone call between himself and police.
The right to a Miranda warning only attaches during a “custodial” interrogation.
State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998). “The determination of whet her a
suspect is in custody is an objective inquiry—would a reasonabl e person in the suspect’s
situation have understood that he was in custody?” Id. The only evidence of a phone call
between Palmer and police is evide nce that Palmer answered a ca ll and said that he was
not at R.J.’s home. This is not a custodial interrogation. Consequently, we conclude that
the district court did not admit any evidence obtained in violation of Miranda.
E. Cruel and Unusual Punishment and an Improper Upward Departure
Palmer argues that his 42-month prison sentence constitutes cru el and unusual
punishment because R.J. suffered no injuries. Similarly, Palme r argues that the district
court erred by imposing an upward sentencing departure based on the presence of a child

16
because R.J. purportedly testified that the assault had ended by the time the child arrived.
But besides citing to the Eighth Amendment of the United States Constitution, Palmer cites
no relevant law to support either argument. Moreover, the argu ments lack factual
support—the district court fou nd beyond a reasonable doubt that Palmer did inflict harm
on R.J., and R.J. testified that the assault continued after the child attempted to intervene.
Because Palmer does not cite any re levant law to support his cr uel-and-unusual-
punishment claim, we deem the arguments waived. See State v. Krosch, 642 N.W.2d 713,
719 (Minn. 2002) (deeming pro se arguments waived for failure t o cite legal authority to
support the claims).
Affirmed; motion granted.