Frank Timothy Newton, 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This opinion will be unpublished and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
A19-1144

Frank Timothy Newton, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 29, 2020
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CR-15-8189

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Frank Timothy Newton appeals from the de nial of his petition for
postconviction relief following an evidentiary hearing. Appellant argues that the
postconviction court abused its discretion when it denied his request for a new trial on the

2
basis of newly discovered evidence. Becaus e the postconviction c ourt did not abuse its
discretion, we affirm.
FACTS
Respondent State of Minnesota charged Newton with second-degree attempted
murder, first-degree assault, and second-degree assault, in connection with a near-fatal
stabbing of R.W. At trial, Newton testified that he acted in self-defense. Newton explained
that on the day of the incident , he and R.W. engaged in a seri es of heated text messages.
After numerous text messages, R.W. called Newton and told Newton to “come across the
bridge.” Newton then walked several blocks from his apartment, across a bridge, to R.W.’s
house. As Newton crossed the bridge, Newton saw R.W. and told him “here I come.” At
the time, R.W. was outside of his house with his roommate and his roommate’s son.
According to Newton, the three men attacked him when he arrived at R.W.’s house.
Newton pulled a knife to “intimidate” the men because they had bricks and hockey sticks.
He further testified that he hid behind a tree, but R.W. started “pushing [him] in the face.”
Newton testified that, at that point, he us ed the knife against R.W. because R.W. was
assaulting him. R.W. sustained two stab w ounds—one of which punctured his heart.
Newton testified that, after he used the knife, he ran away when he saw R.W.’s roommate
attempting to pick up a “big brick” to throw at him.
The state presented the testimony of R.W. and his roommate, among other
witnesses. The roommate testified that fo llowing a series of text messages, Newton
approached R.W.’s house hollering “Whoo!” and “I’m coming to kill you.” When Newton

3
arrived, he “straight lined” to R.W. and the two men exchanged punches until R.W. fell on
his back. After R.W. fell, the roommate heard R.W. yelling that Newton was stabbing him.
R.W. also testified. He stated that he was texting with Newton for a period of two
hours and the text messages escalated over that time. R.W. saw Newton coming across the
bridge and heard Newton “screaming” that he was going to kill him. R.W. did not recall
much, but remembered fighting Newton. At one point, Newton jumped around a tree and
sliced R.W.’s head. The next thing R.W. remembered was Newton stabbing him with a
knife on his side.
An officer who responded to Newton’s apartment after the altercation also testified.
The officer stated that Newton claimed he had been assaulted but when the officer looked
for injuries, he did not find any injuries other than minor scratches on Newton’s face. The
jury rejected Newton’s self-defense theory and found him guilty of all counts.
At the sentencing hearing, Newton argued for a departure, claiming that his mental
health and alcohol use explained his behavi ors that night. He stated that he was
self-medicating with alcohol, “very, very heavily, very heavily,” and did not fully
understand what he was doing. The district court did not find his argument persuasive and
denied his request for a departure. The dist rict court sentenced Ne wton to 156 months’
imprisonment.
Approximately two years after sent encing, Newton filed a petition for
postconviction relief on the basis of newly discovered evidence and ineffective assistance
of counsel. In support of his petition, Newton claimed that he recently learned that one of
his friends had saved a voicema il that Newton left on the night of the incident and that

4
Newton sounded intoxicated on the voicemail. Newton argued that he was entitled to a
new trial because the voicemail sh owed that he lacked the re quisite intent to commit the
crimes and because his counsel failed to bring an intoxication defense.
The postconviction court held an evidentiary hearing on Newton’s claims. At the
hearing, Newton’s friend testified that Newton called her in the afternoon on the day of the
incident and his “voice” sounded like he had been drinking. She further testified that
Newton called her again at “approximately 10: 00 p.m.” and left a voicemail. She was
certain that the voice on the voi cemail was that of Newton, and that the call came from
Newton’s phone. However, Newton had already been in custody for an hour by 10:00 p.m.
on the day of the incident.
Newton also testified at the hearing. He stated that he started drinking at 10:30 a.m.
on the incident date and did not remember maki ng either call to his friend. He estimated
having 30 alcoholic beverages that day. Newton testified that he told his trial attorney that
he was intoxicated on the inci dent night, but he “didn’t wa nt to bring it up because [he]
had a DWI” and he did not want to lose his li cense. Shortly after making this statement,
Newton waived the ineffective-assistance-of-counsel claim.
In addition to the testim ony, Newton presented two pieces of evidence: the
voicemail and a squad car video. The voicema il is muffled and nearly impossible to
understand.1 The squad car video and its audio, on the other hand, are clear. The video
shows Newton over a period of approximately 30 minutes, sitting in th e back of the car,

1 The muffled voicemail sounds like a pocket dial.

5
talking, and occasionally coughing. The video also shows Newton getting out briefly on
two occasions at the request of a police officer and then getting back into the car. On the
squad car audio, Newton is heard talking in detail about the incide nt, joking with the
officer, and using excessive racial profanitie s. The postconvictio n court reviewed both
pieces of evidence.
With respect to the squad car video, wh ich was recorded shortly after Newton’s
arrest, the postconviction court found that Newton was “clearly understandable” and “very
articulate.” Newton clearly states that he wa s the victim and “this” was a “three against
one” situation. The court furt her found that the video show ed that when Newton got out
of the squad car at the request of the o fficer—which happened more than once—Newton
never stumbled. Regarding the voicemail, the postconviction court was “struck by” the
fact that in the squad car video Newton had “very little sl urred speech” whereas in the
voicemail the person speaking is “incomprehensible.”
Ultimately, the postconviction court concluded that Newton did not meet his burden
of establishing that he was entitled to a new trial based on the voicemail and denied his
petition for postconviction relief. The court expressed concern about the credibility of the
voicemail because there was little ability to determine whether it was actually Newton who
made the call. And the court questioned wh ether the voicemail evidence was really new
evidence of intoxication given that Newton was well aware of his intoxication prior to trial.
Finally, the court found that if the voicemail evidence were to be admitted for the purposes
of a new trial, it would be given “minimal” evidentiary weight “at the most.”
Newton appeals.

6
D E C I S I O N
To obtain a new trial ba sed on newly disc overed evidence, th e petitioner must
demonstrate:
(1) that the evidence was not known to the defendant or his/her
counsel at the time of the trial; (2) that the evidence could not
have been discovered through due diligence before trial;
(3) that the evidence is not cumulative, impeaching, or
doubtful; and (4) that the evidence would probably produce an
acquittal or a more favorable result.

Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017) (emphasis omitted) (quoting
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)). The petitioner bears the burden of
establishing all four prongs of this test, commonly known as the Rainer test, to be entitled
to a new trial. Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
We review the district court’s denial of a petition for postconviction relief for an
abuse of discretion. Pearson, 891 N.W.2d at 596. We review legal issues de novo, but our
review of factual issues is “limited to whether there is sufficient evidence in the record to
sustain the postconviction court’s findings.” Matakis v. State , 862 N.W.2d 33, 36
(Minn. 2015) (quotation omitted). “We will not reverse an order unless the postconviction
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. (quotation
omitted).
Newton argues that the postconviction court abused its discretion when it denied his
request for a new trial because the voicemail is sufficient to require a new trial under the
Rainer test. He argues that the voicemail is newly discovered evidence of intoxication, not

7
known at the time of trial, which would negate the element of intent for his crimes. We
are not persuaded.
We need only consider the fourth prong of the Rainer test because our analysis of
that prong is dispositive. See Miles, 840 N.W.2d at 201 (stating that analysis of the other
prongs of the Rainer test is not necessary where an alysis of one of the prongs is
dispositive). In order to meet the fourth prong, the petitioner is required to show “that the
evidence would pr obably produce an ac quittal or a more favorable result.” Pearson,
891 N.W.2d at 596 (quotation omitted). “We analyze whether new evidence is likely to
produce an acquittal or a more favorable result by examining the admissibility and weight
of the evidence at issue and considering it in light of the evidence the State admitted at
trial.” Miles, 840 N.W.2d at 202 (quotation omitted).
Here, the postconviction court found that the weight of the voicemail evidence
would be “minimal at the mo st.” The record fully supp orts the postconviction court’s
conclusion. The voicemail is muffled and not understandable. And, the only evidence in
the record authenticating the voicemail is the testimony of Newton’s friend, provided years
after the voicemail was allegedly received. These facts support the postconviction court’s
determination that “there is very little ability to determine that . . . [Newton] is the
individual who made that call.” And even accepting that the voicemail was left by Newton,
the voicemail itself is so muffled that it would be of little value to the jury in determining
whether Newton was intoxicated at the time that he made the call. See id. (giving witness
testimony little weight where the testimony did no t indicate the fact that needed to be
proven).

8
Further, the voicemail evidence does not ou tweigh the evidence presented at trial
demonstrating that Newton understood the nature of his actions at the time of the incident.
As the state points out, Newton’s own trial testimony establishes that he vividly
remembered what happened. Newton provided detailed testimony of the incident night—
including content of conversations he had with R.W. and specific locations as to where the
fighting occurred. And the squad car footage negates Newton’s contention that he was too
intoxicated to know what he was doing. As the postconviction court found, Newton was
understandable and articulate in the squad car, making his position very clear that he was
the victim. And the video shows that Newton exited the car multiple times without a single
stumble. Moreover, Newton told the arresting officers ab out the text messages sent by
R.W. He also told them that, because of the text messages, he went across the bridge and
engaged in a fight with R.W. This abundance of evidence refutes Newton’s contention that
he did not know wh at he was doing. See State v. Dinneen , 184 N.W.2d 16, 19-20
(Minn. 1971) (concluding that the defendant was not so intoxicated to not know what he
was doing where he described in detail the events that occurred while committing the
crime).
In sum, the record supports the postco nviction court’s determination that the
voicemail would have been given minimal weight , if any, by a jury and that it would not
have been likely to produce an acquittal or more favorable result for Newton.
Consequently, we hold that the postconviction court acted well within its discretion when
it concluded that Newton was not entitled to a new trial based on the voicemail.
Affirmed.