State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1418

State of Minnesota,
Respondent,

vs.

Yony Galan-Alvillar,
Appellant.

Filed January 19, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-18-1618

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Soren Petrek, Bridge Litigators, Minneapolis, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Coch ran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from his convictio ns on one count of first-degree criminal
sexual conduct and two counts of second-degree criminal sexual conduct, appellant claims
the evidence was insufficient to support the jury’s verdicts and that he was denied effective

2
assistance of counsel. Because it is the province of th e jury to determ ine credibility and
this jury found the victim’s testimony credible, and appellant has not demonstrated that his
counsel was ineffective, we affirm.
FACTS
Respondent State of Minnesota charged appellant Yony Galan- Alvillar with one
count of first-degree criminal sexual conduct, in violation of Mi nn. Stat. § 609.342,
subd. 1(a) (2018), one count of second-degr ee criminal sexual conduct (significant
relationship), in violation of Minn. Stat. § 609.343, subd. 1(g) (2018), and one count of
second-degree criminal sexual conduct (multip le acts), in violation of Minn. Stat.
§ 609.343, subd. 1(h)(iii), afte r the victim alleged that she was sexually assaulted by
appellant, her cousin, on three separate occasions. Appellant is approximately nine years
older than the victim and the victim was between eight and 14 years old when the assaults
were committed. At trial, the jury heard testimony from the victim, her brother, her mother,
a school student advocate, a CornerHouse interviewer, and an officer of the Bloomington
Police Department. The jury found appellant guilty of all three charges. The district court
entered a judgment of conviction for the one count of first-degree criminal sexual conduct
and the charge of second-degree criminal se xual conduct (multiple acts). This appeal
follows.
DECISION
I. The evidence presented was sufficient to support appellant’s convictions.

Appellant argues that the evidence presente d was insufficient to support the jury’s
verdicts. Specifically, appellant argues that the evidence was in sufficient because the

3
victim was the only witness to the offenses and she provided contradictory and inconsistent
testimony. For the reasons outlined below, we disagree.
To evaluate the sufficiency of the evid ence, reviewing courts “carefully examine
the record to determine whether the facts a nd the legitimate inferences drawn from them
would permit the factfinder to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d
895, 900 (Minn. 2019) (quotation omitted). Ap pellate courts review the evidence “in the
light most favorable to the conviction” and “assume the jury believed the State’s witnesses
and disbelieved any evidence to the contrary.” State v. Ortega, 813 N.W.2d 86, 100 (Minn.
2012) (quotation and citation omitted). Appellate courts “will not disturb the verdict if the
jury, acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the
charged offense.” Id.
The issue presented is whether the jury, based on the evidence presented at trial,
could have reasonably found the victim’s testimony to be credible. See State v. Foreman,
680 N.W.2d 536, 538-39 (Minn. 2004). Appe llant argues that inconsistency between the
victim’s trial testimony and her CornerHouse interview, along with an alleged “motivation
to lie and . . . lack of credibility,” results in the victim’s testimony be ing insufficient as a
matter of law. As the sole witness, the reliability of the victim’s testimony was necessary
to establish the elements of the offense. The victim testified th at appellant sexually
assaulted her on three separate occasions. The victim tes tified that one incident of
penetration occurred during the third and fina l assault, thereby form ing the basis for the

4
charge of first-degree criminal sexual conduct. However, it is undisputed that the victim,
during an interview with a Co rnerHouse interviewer, indicated that the one act of
penetration occurred during the first incident of assault.
In State v. Reichenberger, 182 N.W.2d 692 (Minn. 1970), the Minnesota Supreme
Court affirmed a conviction fo r having sexual intercourse w ith a minor even though the
victim made conflicting statements at various times prior to trial, because the victim
testified positively at trial th at intercourse had occurred. Reichenberger, 182 N.W.2d at
694. The court held that b ecause the jury was apprised of the previous inconsistent
statements, “the task of weighing credibility wa s for the jury, not [the appellate courts].”
Id. at 695; see also Foreman, 680 N.W.2d at 539 (r ecognizing holding of Reichenberger
as established good law). Just as in Reichenberger, the jury in this matter was fully
apprised of the discrepancies between the victim’s statements at the CornerHouse interview
and at trial. As a result, the jury weighed the evidence and found the victim credible. We
are not to question the jury’s credibility finding.
As the Minnesota Supreme Court noted in Foreman, the distinction between cases
like Reichenberger, where credibility is left to the jury, and cases where evidence may be
insufficient as a matter of law, is when there are “additional reasons to question the victim’s
credibility.” Foreman, 680 N.W.2d at 539 (analyzing State v. Huss, 506 N.W.2d 290, 292-
93 (Minn. 1993)); State v. Langteau, 268 N.W.2d 76, 77 (Minn. 1978); State v. Gluff, 172
N.W.2d 63, 65 (Minn. 19 69)). For example, in Huss, the Minnesota Supreme Court
determined that the testimony of the alleged victim of child abuse was insufficient because
there was expert testimony that the victim —who was three years ol d—had been exposed

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by the state to highly suggestive material and her testimony was not sufficiently credible.
Huss, 506 N.W.2d at 292-93. In Langteau, the Minnesota Supreme Court held that
uncorroborated victim testimony was insufficien t to establish aggravated robbery when
“the actions by the victim were questionable or unexplained.” Langteau, 268 N.W.2d at
77 (“The reason why [victim] w ould have remained at the hospital until almost midnight
long after normal visiting hours is unexplaine d. The reason why de fendant would have
held up [victim], with whom he was well acquainted, is left a mystery.”). In Gluff, the
Minnesota Supreme Court held victim testimon y to be insufficient wh en the victim “saw
[an] intruder for only a matter of some 30 seconds” and “[h]er description to the police was
wholly at variance with her later identification.” Gluff, 172 N.W.2d at 65 (emphasis added).
No such circumstances are present he re. Appellant points only to (1) the
inconsistencies between the victim’s statements during the CornerHouse interview and her
testimony at trial and (2) the victim’s apparent behavioral issues during the time period of
the alleged incidents. It is true that a number of witnesses reported such behavioral issues,
such as the victim acting out at school. Appellant argues such testimony is evidence that
the victim had an incentive to deflect scrutiny by “fabricat[ing] a story declaring [herself]
to be the victim of criminal assault.” However, appellant’s attempt to argue this as a reason
to question the victim’s credib ility is entirely speculative—he cites no case law in which
such an argument was accepted. Such conduct is categorica lly distinct from the types of
circumstances set forth in Huss, Langteau, Gluff, and other related caselaw in which victim
testimony was found to be insufficient as a matter of law.

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In sum, the issue here—whether the vic tim’s testimony regarding the assaults was
true despite the inconsistencies betwee n the trial testimony and the CornerHouse
interview—is an issue of credibility, rather than one which can or should be disposed of as
a matter of law. See Foreman , 680 N.W.2d at 539 (“[A]s long as the evidence was
sufficient to reasonably support the jury’s finding, the credibility of a witness was for the
jury to determine.”). In this matter, the jury found the victim’s testimony credible, and on
the strength of her testimony found appellant guilty on all three counts. In such a case, the
decision of the jury should not be disturbed. Ortega, 813 N.W.2d at 100.
II. Appellant has failed to sh ow that he received ineffective assistance of trial
counsel.

Appellant argues that his convictions must be overturned and he must be granted a
new trial due to the ineffectiveness of his trial counsel.1 Specifically, appellant argues that
he received ineffective assistance of counsel when his attorney (1) failed to call any defense
witnesses, (2) failed to present or seek to present evidence of the victim’s mental health,
and (3) elicited damaging testimony during cross-examination of the victim’s brother.
“[T]he right to counsel is the right to the effective assistance of counsel.” Strickland
v. Washington , 466 U.S. 668, 686, 104 S. Ct. 20 52, 2063 (1984) (quotation omitted).
Strickland establishes a two-part standard for claims of ineffective assi stance of counsel.

1 We note that ineffective-assistance-of-cou nsel claims should, ge nerally speaking, be
raised in a postconviction petition ra ther than on direct appeal. State v. Gustafson , 610
N.W.2d 314, 321 (Minn. 2000). Such a claim may be considered on direct appeal if it can
be decided based on the exis ting district court record. Torres v. State, 688 N.W.2d 569,
572 (Minn. 2004). Because we find sufficient ev idence within the district court record to
resolve appellant’s claims, we do so here.

7
State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014). To obtain reversal under Strickland, a
defendant must demonstrate that (1) counsel’s performan ce “fell below an objective
standard of reasonableness,” and (2) there is “a reasonabl e probability” that the outcome
would have been different without counsel’s errors. Id. A failure as to either prong may
be dispositive. Id. Whether a defendant received ineffective assistance of counsel involves
mixed questions of law and fact, which we review de novo. Dereje v. State, 837 N.W.2d
714, 721 (Minn. 2013). Neither Strickland prong has been met.
Appellant first argues that his trial counsel provided ineffective assistance by failing
to consult with defense witne sses or call them to testify at trial. However, “[d]ecisions
about which witnesses to call at trial and what information to present to the jury are
questions of trial strategy that lie with in the discretion of trial counsel.” Leake v. State ,
737 N.W.2d 531, 539 (Minn. 2007). Leake specifically contemplates that a defense
attorney may present no witnesses at trial and yet be effective. Id. As appellant provides
no rationale for why this court should “second -guess trial counsel’s strategic decisions,”
this argument is not persuasive. Id.
Appellant additionally argues that his tria l counsel erred by failing to seek admission
of evidence relating to the victim’s mental health. However, as with the decision of
whether to call defense witnesses, the decision of what evidence to pr esent at trial is an
issue of trial strategy which is not properly reviewed on appeal. Id.; Cooper v. State, 565
N.W.2d 27, 33 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). The potential of
addressing the victim’s mental health was di scussed by the court and parties prior to the
commencement of trial. In response, appellant’s trial counsel specifically decided against

8
raising such evidence at trial. Ignoring potential relevance issues, this was a strategic
decision that trial counsel was entitled to ma ke and appellant’s tr ial counsel was not
ineffective in so deciding. Cooper, 565 N.W.2d at 33; Leake, 737 N.W.2d at 539.
Finally, appellant argues that his trial c ounsel was ineffective due to her elicitation
of damaging evidence while cross-examining the victim’s brother. On cross-examination,
appellant’s trial counsel elic ited testimony from the victim ’s brother indicating that
appellant had frequently attempted to have close physical contact with the victim, including
comments such as “I saw [appellant] constan tly always trying to have [the victim]
close . . . to him.” Though the testimony e licited by appellant’s trial counsel detailed the
close physical relationship ap pellant had with the victim, and highlighted instances of
appellant initiating physical contact with the victim, this was a mere extension upon what
had already been testified to by the victim’s brother on direct examination. The victim’s
brother had already testified extensively on direct examination as to the close (sometimes
physically close) familial relationship which had existed between appellant and the victim.
Furthermore, appellant’s trial counsel’s clear goal in eliciting testimony regarding what the
victim’s brother actually saw was to establish conclusively that he did not actually see the
assaults—she did succeed in that goal.
In sum, appellant has not demonstrated that the conduct and errors alleged caused
trial counsel to fall below the “objective standard of reasonableness” required.
Vang, 847 N.W.2d at 266. Because appellant ha s failed to satisfy the first prong of an
ineffective-assistance-of-counsel claim under Strickland and Vang, we need not address
the second. Id. Regardless, given what had already been elicited from the victim’s brother

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on direct examination, there does not appear to be a “reasonable probability” the outcome
of this matter would have been different had the allegedly detrimental statements not been
elicited. Id.
Affirmed.