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This opinion is nonprecedential except as provided by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
A19-1637

State of Minnesota,
Respondent,

vs.

Isaiah Stephen Schuety,
Appellant.

Filed March 1, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Crow Wing County District Court
File No. 18-CR-18-2418

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Max A. Keller, Erik S. Nielsen, Keller Law Offices, Minneapolis, Minnesota (for
appellant)

Considered and decided by Frisch, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal, appellant Isaiah Stephen Schuety challe nges his convictions
for first- and third-degree criminal sexual conduct, felony stalking, and assault. He argues

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that: (1) the evidence was insu fficient to support the jury ’s guilty verdicts; (2) his
conviction for felony stalking violated his ri ght to due process beca use, when he pleaded
guilty to a prior stalking offense, he was not told that the convicti on could be used to
enhance future stalking crimes; (3) he received ineffective assistance of counsel; (4) there
were multiple instances of prosecutorial misconduct; (5) the delay between the assault and
his charging violated his right to due process; and (6) the cumulative weight of the errors
warrants a new trial.
We reject Schuety’s arguments. We obs erve, however, that the warrant of
commitment contains errors that must be corrected: (1) it improperly lists a conviction for
third-degree criminal sexual c onduct, which is a lesser-incl uded offense of first-degree
criminal sexual conduct and (2) it improperly lists both a guilty verdict and a conviction
for fifth-degree assault, a charge that was never submitted to the jury. We therefore affirm
the convictions for first-degree criminal sexu al conduct and felony stalking, reverse the
convictions for third-degree criminal sexual conduct and fifth-degree assault, and remand
for the district court to correct the warrant of commitment accordingly.
FACTS
The following facts were proved at trial. After connecting on a dating app, K.C. and
Schuety met for a date on June 14, 2017. Because K.C. had a young son and did not want
to find child care, she and Schuety met at her home to watch a movie and have dinner. K.C.
made it clear to Schuety before the date that she did not want to have sex. After dinner and
while the movie was playing, Schuety put his arm around K.C. and began to kiss her. K.C.
testified at trial that she did not mind that Schuety put his arm around her but she did not

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want him to kiss her because that might give Schuety the wrong impression that she would
have sex with him. Schuety stopped kissi ng K.C. when she told him that she was
uncomfortable.
After a few minutes, however, Schuety bega n to kiss K.C. again and she tried to
push him away. She told him that the kissing was “not okay.” In response, Schuety put his
arm around K.C.’s neck and grabbed her by the arm, which indicated to K.C. that he wanted
her to take him to her bedroom. K.C. believed Schuety was about to sexually assault her.
Once in K.C.’s bedroom, Schuety pulled o ff K.C.’s pants, forc efully choked her,
and began to have vaginal sex with her for about 20 minutes. K.C. gave no verbal consent.
Although K.C. did not pass out, the pressure on her neck hurt and made it harder for her to
breathe. K.C. was not very strong, and Schuety was larger than she. When K.C. tried and
was unable to push Schuety off her, she did not otherwise resist and instead went “numb.”
K.C. thought about her “kid and [tried] to really just focus on getting through so that [she]
could be with him in the morning.” The in cident ended when Sc huety ejaculated onto
K.C.’s stomach.
K.C. was the victim of a serious sexual assault when she was younger. During that
assault, she had tried to fight the perpetrato r, which only made the assault more brutal.
Because of this, K.C. test ified, she followed Schuety’ s demands. She also complied
because her young son was in the other room and she did not want to endanger him. K.C.
“just wanted to get [Schuety] out of there” and was “scared if he could hurt [her] and [she]
couldn’t wake up to be with [her] son in the morning.”

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K.C. cried while putting her clothes back on. She then smoke d a cigarette with
Schuety because she “didn’t really want to anger him” and she hoped that it would get him
to leave as soon as possible.
Shortly after Schuety left, K.C. texted Schue ty, “I told you I didn’t want to have
sex . . . I wanted to sleep . . . please leave me [alone].” After a few texts, the two stopped
communicating. K.C. also described the incident in a note on her phone that night.
The next morning, K.C. called the Cr osby Police Department. The responding
officer took and recorded K. C.’s statement and accompanied her to a medical exam. The
medical exam did not show any evidence of visible injury, which one of the nurses
conducting the exam testified is not uncommon.
The police did not interview Schuety until el even months later, on May 5, 2018.
While K.C. had provided the responding officer with Schuety’s phone number, the officer
testified that the delay was due to his desire to interview Schuety in person so that he could
see Schuety’s facial expressions, body language, and reactions to questioning. Initially, the
responding officer conducted an employment check, searched addresses for Schuety on
file, and had officers drive by a home where he suspected Schuety lived. Ultimately, on
May 5, the officer located Schuety at his parents’ home and questioned him.
During the recorded in terview, Schuety acknowledged having sex with K.C. but
claimed that it was consensual. Without prompting, Schuety offered that things then “went
weird,” explaining that K.C.’s demeanor ch anged and that she accus ed him of “choking
her.” Schuety confirmed that the two exch anged some messages immediately afterward
and had not communicated since.

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The state charged Schuety with first-degr ee criminal sexual conduct, third-degree
criminal sexual conduct, felony stalking, and fi fth-degree misdemeanor assault. At trial,
the state called K.C., her friend, the two nurses who conducted the medical exam, a forensic
scientist from the Bureau of Criminal Apprehension (BCA), and the responding officer as
witnesses. Schuety testified in his own defense. After the state rested and the court denied
Schuety’s motions for a judgment of acquittal, the state withdr ew the fifth-degree assault
charge. The jury found Schuety guilty of the three remaining offenses. The district court
sentenced him to 144 months’ imprisonment fo r the first-degree criminal-sexual-conduct
conviction.
This direct appeal follows.
DECISION
Schuety raises six challenges to his convictions, which we address in turn.
I. The evidence is sufficient to convict Schuety of all three charges submitted to
the jury.

Schuety challenges the sufficiency of the evidence to prove his guilt beyond a
reasonable doubt.
A. First-degree criminal sexual conduct
For the jury to have found Schuety guilty of first-de gree criminal sexual conduct,
the state had to prove five elements beyond a reasonable doubt: (1) Schuety intentionally
sexually penetrated K.C.; (2) the sexual penetration occurred without K.C.’s consent; (3) at
the time of the incident, K.C. had a “reasona ble fear of imminent great bodily harm to
[herself] or another”; (4) K.C.’s reasonable fear allowed Schuety to accomplish the act;

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and (5) the incident took place on June 14, 2017, in Cr ow Wing County. See Minn. Stat.
§ 609.342, subd. 1(c) (2016). Schuety disputes only the third element—that K.C. had a
reasonable fear of imminent great bodily harm to herself or others.
The state used direct ev idence—namely, K.C.’s te stimony—to prove the third
element. We review challenges to the suffic iency of direct evid ence by determining
whether the evidence, when vi ewed in the light most favor able to the conviction, is
sufficient to permit the fact-finder to reach a guilty verdict. See State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). This review involves a “painstaking analysis of the record.” Id. In
our review, we must assume th at the jury “disbelieved any ev idence that conflicted with
the verdict.” State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016). “This is especially true
whe[n] resolution of the case depends on conflicting testimony, because weighing
credibility of witnesses is the exclusive function of the jury.” State v. Pieschke, 295 N.W.2d
580, 584 (Minn. 1980). We will not disturb a verdict if the jury, acting with due regard for
the presumption of innocence and the requir ement for proof beyond a reasonable doubt,
could have reasonably concluded that the defendant was guilty. State v. Alton, 432 N.W.2d
754, 756 (Minn. 1988).
K.C. testified that, during their date, Schuety began kissing her after she said that it
was not okay, put his arm around her neck, a nd then “grabbed [her] by the arm,” and that
she then “showed him where [her] room was” out of fear that Schuety may turn violent and
hurt her or her son. K.C. stated that, based on her previous experience as the victim of a
violent sexual assault, she had reason to believe that Schuety was about to sexually assault
her. Once they were in K.C.’s bedroom, Sc huety removed K.C.’s pants and had vaginal

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intercourse with her for 20 minutes. During th at time, Schuety forcefully choked K.C. to
the point that it was hard for her to breathe. K.C. went “numb” and thought about her “kid
and [tried] to really just fo cus on getting through so that [s he] could be with him in the
morning.” After Schuety ejaculated on her stom ach, K.C. cleaned up, put on her clothes,
and cried. K.C. then smoked a cigarette with Schuety to keep him calm and get him away
from her house as quickly as possible. Finally , after Schuety left, K.C. sent him text
messages confirming that she “didn’t want to have sex . . . [she] wanted to sleep,” and
communicating that she wanted him to leave her alone.
Schuety argues that this direct evidence is insufficient to prove K.C.’s reasonable
fear of imminent great bodily harm for three reasons. First, Schuety argues that the direct
evidence reflects only K.C.’s subjective fear of great bodily harm, and not an objective,
reasonable fear of great bodily harm. Second, he asserts that the direct evidence does not
prove that K.C. feared imminent harm. Fina lly, he contends that his actions during sex
were insufficient to cause fear because evidence about K.C.’s resistance was inconsistent,
and he contends that his choking her does not per se reflect force or coercion.
We are not persuaded. The evidence prov ing reasonable fear of great bodily harm
is not limited to K.C.’s subjective fear as a result of her prior experience of sexual assault.
Rather, it includes K.C.’s testimony that Schuety put his arm around her neck and grabbed
her arm, eliciting pain, to force her to show him to her bedroom. Further, K.C. testified that
Schuety forcefully choked her during sex and that she tried but was unable to push him off.
We assume that the jury believed K.C.’s te stimony and disbelieved any evidence to the
contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

8
As to the imminence of the feared great bodily harm, K.C. testified that she was
afraid of what Schuety was about to do an d was mentally preparing herself for a sexual
assault as she led him to her bedroom. She tried to push Schuety off of her, and, when that
proved futile because Schuety was larger and stronger than she, K.C. remained calm to
“focus on getting through so that [she] could be with [her son] in the morning.” K.C.
testified multiple times that she did not significantly resist Schuety because she was afraid
that, were she to resist, Schuety would harm her or her one-year-old son. This direct
evidence is sufficient to prove beyond a reasonable doubt that K.C. reasonably possessed
an imminent fear of great bodily harm to herself or another.
Finally, we are not persuaded by Schuety’s argument that his actions while engaging
in penetration are insufficient because the evidence regarding K.C.’s resistance is
inconsistent and because choking someone during sex “does not indicate force or coercion
per se.” This argument asks us to construe th e evidence in a light inconsistent with the
verdict. Webb, 440 N.W.2d at 430. K.C. testified that Schuety forcefully choked her during
sex, and that testimony is consistent with the jury verdict. We must assume that the jury
believed K.C.’s testimony in coming to a guilty verdict because it is solely the jury’s job
to assess credibility. See Pieschke, 295 N.W.2d at 584.
The direct evidence is thus sufficient to support Schuety’s conviction for first-
degree criminal sexual conduct.1

1 Because the direct evidence is sufficient to sustain Schuety ’s conviction, we need not
address his argument regarding circumstantial evidence. See State v. Silvernail , 831
N.W.2d 594, 606 (Minn. 2013) (Stras, J., concurring in part) (“[T]he ‘traditional standard’
applies when the direct evidence is sufficient to prove the disputed element.”). We do note

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B. Third-degree criminal sexual conduct
For the jury to have convicted Schuety of third-degree criminal sexual conduct, the
state had to prove four elements beyond a reasonable doubt: (1) Schuety intentionally
sexually penetrated K.C.; (2) the sexual penetration was nonconsensual; (3) Schuety used
force or coercion to accomplish the penetration; and (4) the incident took place on June 14,
2017, in Crow Wing County. See Minn. Stat. § 609.334, su bd. 1(c) (2016). Schuety
disputes only the third element—that he used force or coercion.
“Force” is defined as follows:
[I]nfliction, attempted infliction, or threatened infliction by the
actor of bodily harm . . . which (a) causes the complainant to
reasonably believe that the ac tor has the present ability to
execute the threat and (b) if the actor does not have a
significant relationship to the complainant, also causes the
complainant to submit.

Minn. Stat. § 609.341, subd. 3 (2016).
“Coercion” is defined as the “use by the actor of words or circumstances that cause
the complainant reasonably to fear that th e actor will inflict bodily harm upon the

that, even if the direct evidence were insufficient by itself to establish a reasonable fear of
imminent great bodily harm, other, circ umstantial evidence precludes any rational
hypothesis inconsistent with Schuety’s guilt. See Loving v. State , 891 N.W.2d 638, 643
(Minn. 2017) (stating that when the direct evidence of guilt on a particular element is
insufficient to sustain the verd ict, a reviewing court may look to circumstantial evidence
to sustain the verdict). K.C. testified that sh e told Schuety she did not want to have sex
with him, she led Schuety to her room to prevent him from becoming violent, Schuety
choked her during sex, and the choking was pa inful and made it hard for her to breathe.
Moreover, Schuety, without prompting, recalled months later that K.C. had been been upset
and had said that he had “choked” her. There is no rational hypothesis from these
circumstances other than that K.C. had a fear of imminent great bodily harm.

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complainant or another.” Minn. Stat. § 609. 341, subd. 14 (2016). The state need not
provide proof of a specific act or threat to prove coercion. Id.
Schuety argues that the evidence is insufficient because K.C.’s fear was subjective
and unreasonable. Again, we disagree. Constr uing the direct evidence in the light most
favorable to the verdict,2 Schuety put his arm around K.C.’s neck and grabbed K.C.’s arm,
causing her pain and indicating that “he wanted [her] to take him to [her] room.” When
they entered K.C.’s room, Schuety took K.C.’s pants off, put both of his hands around her
neck, and sexually penetrated her. When Schu ety put his hands around K.C.’s neck, she
felt pain, had trouble breathin g, and was unable to physic ally resist. This constitutes
sufficient bodily harm for th e jury to find that Schuety used force to accomplish
penetration. See Minn. Stat. § 609.02, subd. 7 (2016) (defining “bodily harm” as “physical
pain or injury, illness, or any impairment of physical condition”). And, based on her own
testimony, this bodily harm caused K.C. to submit to the sexual assault and thus is
sufficient to constitute both force and coer cion. Schuety’s argume nts rely on his own
testimony and, because they construe the facts in a light inconsistent with the verdict, we
reject them. Webb, 440 N.W.2d at 430. In sum, the di rect evidence was sufficient to find
Schuety guilty of third-degree criminal sexual conduct.

2 The parties dispute whether th e evidence used to prove force or coercion was direct or
circumstantial evidence. Because K.C. testifie d directly to Schuety’s conduct and to the
pain that it caused at multiple times during th e incident, the direct evidence alone is
sufficient and Schuety’s argument that the hei ghtened circumstantial evidence standard
applies is misplaced.

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Although neither party raised the issue in this appeal, and we have addressed the
sufficiency-of-the-evidence issue that the par ties briefed, we note that a conviction for
third-degree criminal sexual conduct is improperly listed on Schuety’s warrant of
commitment. Minn. Stat. § 609.04, subd. 1 (2016 ), states that “[u]pon prosecution for a
crime, the actor may be convicted of either th e crime charged or an included offense, but
not both.” The statute specifies that an included offense encompasses “[a] lesser degree of
the same crime.” Minn. Stat. § 609.04, subd. 1(1). Because Schuety was convicted of first-
degree criminal sexual conduct, he cannot also be convicted of third-degree criminal sexual
conduct based on the same act. Id. The district court properly did not orally adjudicate the
third-degree offense at sentencing, yet third- degree criminal sexual conduct appears as a
“conviction” on the warrant of commitment. See State v. Pflepsen, 590 N.W.2d 759, 767
(Minn. 1999) (stating that courts “typically lo ok to the official j udgment of conviction,
which generally appears as a separate entry in the file, as conclusive evidence of whether
an offense has been formally adjudicated”). Because it appears the district court improperly
included this conviction in its judgment of conviction, we reverse and remand to the district
court to correct the warrant of commitment to vacate the conviction for third-degree
criminal sexual conduct, leaving the jury’s guilty verdict intact.
C. Felony stalking
For the jury to have found Schuety guilty of felony stalking, the state had to prove
four elements beyond a reasonable doubt: (1) Sc huety directly or indirectly manifested a
purpose or intent to injure K.C. by the commission of a cr ime; (2) Schuety knew or had
reason to know that the conduct would ca use K.C. to feel fri ghtened, threatened,

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persecuted, or intimidated; (3) K.C. did fe el frightened, threatened, persecuted, or
intimidated; and (4) the act took place on June 14, 2017, in Crow Wing County. See Minn.
Stat. § 609.749, subd. 2 (2016). Because Schuety pleaded guilty in 2007 to gross-
misdemeanor harassment, the state enhanced this stalking charge to a felony. See id., subd.
4 (2016) (making stalking a felony if violation occurs within ten years of previous qualified
domestic-violence-related offe nse). Schuety disputes only the first element—that he
intended to injure K.C. during the sexual assault.
The state proved Schuety’s intent with ci rcumstantial evidence. Intent is usually
established through circumst antial evidence by drawing infe rences from the defendant’s
words and actions in light of the totality of the circumstances surr ounding the incident.
State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). Relevant circumstances may include
events occurring before and after the incident, Davis v. State, 595 N.W.2d 520, 526 (Minn.
1999), as well as the victim’s reaction to a threat, State v. Schweppe, 237 N.W.2d 609, 614
(Minn. 1975).
The sufficiency of circumstantial evidence is analyzed through a two-step process.
Silvernail, 831 N.W.2d at 598. First, we identify the circumstances proved. See id. In doing
so, we “defer to the jury’s acceptance of the proof of these circumstances and rejection of
evidence in the record that conflicted with the circ umstances proved by the State.” Id. at
598-99 (quotations omitted). Sim ilarly, we “consider only th ose circumstances that are
consistent with the verdict.” Id. at 599. Thus, we assume “that the jury believed the State’s
witnesses and disbelieved the defense witnesses.” Id. (quotation omitted).

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Second, we independently “determine whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
at 599 (quotations omitted). Here, we give no deference to the jury’s choice between any
reasonable inferences. See State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). If there is
any rational hypothesis pointing to innocence, then the evidence is insufficient and we must
overturn the conviction. See State v. Al-Naseer, 788 N.W.2d 469, 474 (Minn. 2010). For a
conviction to be upheld based on circumstantial evidence, “the circumstances must form a
complete chain which, in light of the evidence as a whole, leads so directly to the guilt of
the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than
that of guilt.” State v. Reed, 737 N.W.2d 572, 581 (Minn. 2007) (quotation omitted).
There are four circumstances proved that bear on Schuety’s intent. First, Schuety
forcefully grabbed K.C.’s arm after she had indicated she did not want to kiss. Second, in
the bedroom, Schuety took off K.C.’s pants. Third Schuety placed both of his hands around
K.C.’s neck, choking her, whic h caused her pain. Finally, Sc huety vaginally penetrated
K.C. without her consent.
There is no rational inference other than that, through choking K.C. and committing
nonconsensual sexual penetration, Schuety intended to injure her during the crime. Here,
Schuety knew K.C. did not consent to sex as she told him she did not want to have sex and
he physically manipulated her twice. He did so once by grabbing her arm so that she would
take him to her room and again when he used both hands to choke K.C. during the assault.
Together, these circumstances support the reasonable inferenc e that Schuety intended to
injure K.C.

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Schuety presents no alterna tive hypothesis and instead argues that the evidence is
insufficient because there is no physical evid ence of injury. But the absence of that
evidence does not undermine the presence of other sufficient evidence of Schuety’s intent
based on the circumstances proved. Schuety ’s argument mainly relies on his personal
testimony that he did not intend to harm K.C. Because we must construe the circumstances
proved in a manner consistent with the verdict, see Silvernail, 831 N.W.2d at 599, we reject
Schuety’s argument.
Thus, the circumstantial evidence is su fficient to support Schu ety’s conviction for
felony stalking.
D. Fifth-degree assault
Although the parties briefed the sufficiency of the evidence to prove fifth-degree
assault, it is clear from the record that Schuety was neither found guilty of nor convicted
of that crime. The record shows that this charge was withdrawn by the state and was not
submitted to or decided by the jury. Accordingly, at sentencing, the district court properly
did not adjudicate Schuet y guilty of this crime or sentence him for it. Yet the warrant of
commitment lists a finding of guilt by the jury as well as a conviction by the district court.3
Because the judgment of conviction incorrectly shows that Schuety was both found guilty
of and convicted of a crime never submitted to the jury, we reverse and remand this

3 The warrant of commitment uses the misn omer “convicted” under “Case Charges” on
page 1 of the document to reflect (incorrec tly) a jury verdict of guilt. The document goes
on to also list “convicted” as the district court’s “Offense Disposition” on page 3 (which is
also incorrect).

15
conviction for the district court to amend the warrant of commitment to make both
corrections regarding the fifth-degree-assault count.
II. Schuety’s due-process argument against his felony-stalking conviction fails.

Schuety argues that using his 2007 guilty plea to gross-misdemeanor harassment to
enhance his felony stalking charge violated his due process rights. See Minn. Stat.
§ 609.749, subd. 4(a) (“[One] is guilty of a felony who violates any provision of
subdivision 2 within ten years of a previ ous qualified domestic vi olence-related offense
conviction.”). Whether a due-process viola tion has occurred presents a question of
constitutional law, which we review de novo. See State v. Bobo , 770 N.W.2d 129, 139
(Minn. 2009).
Schuety first asserts that his counsel “appa rently failed to adequately advise him of
the ramification of his plea agreement” and th at he is therefore entitled to relief. While
Schuety cites the proposition that an uncouns eled plea cannot be used to enhance a
subsequent offense, see State v. Lang, 432 N.W.2d 478, 480 (Minn. App. 1988), Schuety’s
guilty plea was not unc ounseled, and his prior convic tion is therefore immune from
collateral attack, see State v. Otto, 451 N.W.2d 659, 661 (Minn. App. 1990), review denied
(Minn. Apr. 13, 1990).
Schuety next argues that a comparison to Minnesota’s driving-while-intoxicated
statute demonstrates that the felony enhancement was improper. He observes that the DWI
statute requires sentencing courts to inform defendants about the enhancement of criminal
penalties for repeat offenders but provides that the failure to give the enhancement advisory
does not affect the applicability of enhanced penalties to a defendant. See Minn. Stat.

16
§ 169A.47 (2018). Schuety asserts that, because the felony-stalking statute, unlike the DWI
statute, does not say that failure to advise will not affect future enhancement, the legislature
must have intended that failure to advise during a prior plea agreement precludes a later
enhancement to felony stalking. We first not e that this is a statutory-interpretation
argument and not a due-process argument. But, no matter how it is characterized, Schuety
forfeited the argument because he did not raise it to the district court. See State v. Roby ,
547 N.W.2d 354, 357 (Minn. 1996).
Schuety also urges us to preserve the enhancement issue for a potential
postconviction petition. But, because Schuety’s arguments are either barred as a matter of
law or forfeited, we determine on this record that the enhancement of Schuety’s felony-
stalking charge through the use of his 2007 guilty plea to gross-misdemeanor harassment
does not violate his due-process rights and we do not preserve the issue.
III. Schuety’s ineffective-assistance-of-counsel claims fail.

Next, Schuety raises three claims of ine ffective assistance of counsel. Claims of
ineffective assistance of counsel are mixed questions of law and fact, which we review de
novo. See Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
Schuety asks us to preserve these issues for post-conviction relief if we determine
that the trial court record does not allow adjudication of each individual ineffective-
assistance-of-counsel claim. See Leake v. State , 737 N.W.2d 531, 535-36 (Minn. 2007).
When we can resolve a claim of ineffective a ssistance of trial counsel on the trial record
alone, the claim must be brought on direct a ppeal or it is procedurally barred under the
Knaffla rule. See id. at 535; State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976) (holding

17
that any claim raised, or known but not ra ised, on direct appeal is forfeited during
postconviction review). If, however, a claim cannot be resolved on the trial court record,
the claim may be brought in a postconviction petition. Leake, 737 N.W.2d at 535-36. We
conclude that we can fully address each clai med instance of ineffe ctive assistance of
counsel on the trial record and so do not preserve the claims for postconviction review.
To determine whether a criminal defenda nt received ineffective assistance of
counsel, we apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984). See State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
Under the first prong, the defendant must sh ow that their “counsel’s representation fell
below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at
2064. An objective standard of reasonableness is the level of customary skill and diligence
that a reasonably competent attorney would employ under similar circumstances. Leake v.
State, 767 N.W.2d 5, 10 (Minn. 2009). Courts “review ineffective assistance claims with a
strong presumption that counsel’ s performance was reasonable.” Swaney v. State , 882
N.W.2d 207, 217 (Minn. 2016).
Under the second prong, 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 om itted). The reviewing court c onsiders the totality of the
evidence presented in determining if the result probably wo uld have been different. State
v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). If th e ineffective-assistance claim fails
under either prong of the Strickland test, the reviewing court need not address the other
prong. Carridine v. State, 867 N.W.2d 488, 494 (Minn. 2015).

18
We address in turn each of Schuety’s claims of ineffective assistance of counsel.
A. Failure to file a Paradee motion
Schuety argues his trial counsel should have filed a Paradee motion4 to obtain any
records of K.C.’s prior sexual assault because it would have better prepared counsel to
cross-examine K.C.
“We will generally not review an ineffec tive-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 ask witnesses, and whether to make objections. Bobo, 770 N.W.2d
at 138. Such matters “lie within the proper discretion of trial counsel and will generally not
be reviewed later for competence.” Id.
Schuety has not established that his tria l counsel performed unreasonably because
he has not identified any records that his c ounsel unreasonably ignored. He has identified
no information that would have aided Schuety’s counsel in her cross-examination of K.C.
In fact, K.C. testified at trial that she did not report her prior sexual assault. Schuety might
have obtained records from K.C.’s therapis t, but it is unclear—and Schuety does not
clarify—what benefit these records would have had in cross-examining K.C. His counsel’s
decision whether to bring a Paradee motion was one of trial strategy, and Schuety has

4 A Paradee motion asks the district court to re view privileged material in camera to
determine whether it is discoverable, balanc ing the defendant’s in terest in obtaining
beneficial evidence with the privilege holder’s interest in having the confidences kept. State
v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).

19
failed to demonstrate that it was unreasonable not to do so under the first prong of the
Strickland test.
B. Failure to object to hearsay
Schuety next challenges his trial counsel’s failure to object to a hearsay statement
in K.C.’s testimony. While trying to explain her inability to remember certain details of the
assault, K.C. stated, “I’m not sure if I’m allowed to say, but my therapist that I see said it’s
fairly normal to not remember a lot of things.” This is hearsay. See Minn. R. Evid. 801(c)
(defining hearsay as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted”). While
Schuety’s trial counsel could have objected, he r failure to do so is a tactical choice. See
Bobo, 770 N.W.2d at 138. Trial counsel made the strategic decision not to object to a
hearsay statement—a decision that we rarely review. Id. Schuety’s argument thus fails to
meet the first prong of the Strickland test.
C. Failure to object to enhancement of the stalking charge
Finally, Schuety argues that his trial counsel provided ineffective assistance when
she failed to object to the enhancement of his stalking charge to a felony. As we explained
above, the district court would have overru led any objection as an improper collateral
attack on his 2007 harassment conviction. Lang, 432 N.W.2d at 480. Because there is no
legal support for any objection by trial counsel to the enhancement of the stalking charge,
this argument also fails the first prong of Strickland.
Because Schuety has not established that his trial counsel provided objectively
unreasonable representation, his ineffective-assistance-of-counsel claims fail.

20
IV. The state did not commit prosecutorial misconduct.

Schuety next asserts four instances of prosecutorial misconduct arising from the
state’s closing argument. Schuety objected to two of these instances at trial, while two were
unobjected-to. We apply different standard s of review for objected-to misconduct and
unobjected-to misconduct.
A. Objected-to misconduct
We review objected-to misc onduct for harmless error. See State v. Hunt , 615
N.W.2d 294, 302 (Minn. 2000). The standard for determining harmless error depends on
the severity of the misconduct. In “unusual ly serious” cases, we determine whether the
misconduct was harmless beyond a reasonable doubt. See State v. Caron, 218 N.W.2d 197,
200 (Minn. 1974). If the misconduct is less serious, we determine whether the misconduct
“likely played a substantial part in influencing a jury to convict.” Id.5 When evaluating
claims of misconduct arising out of closing argument, we look to the closing argument “as
a whole rather than focus on particular phrases or remarks that may be taken out of context
or given undue prominence.” State v. Johnson , 616 N.W.2d 720, 728 (Minn. 2000)
(quotation omitted).
Schuety asserts that the prosecutor in tw o instances improperly shifted the burden
of proof to him during closi ng argument. First, Schuety ar gues that the prosecutor’s

5 We note that this two-tier test for dete rmining whether objected-to prosecutorial
misconduct constitutes reversible error has come under increased scrutiny. See State v.
Graham, 764 N.W.2d 340, 348 (Minn. 2009). Despite this, the Minnesota Supreme Court
“[has] yet to decide whether the two-tiere d approach for objected-to prosecutorial
misconduct as set forth in State v. Caron remains viable.” Id.

21
comment in closing argument th at Schuety had not presented proof of any text messages
that might alleviate suspicion amounted to improper burden shifting. The prosecutor said,
“[T]here’s been no testimony, there’s been no evidence presented to you at all that there
were any more text messages than what’s been put into evidence.” Schuety’s trial counsel
objected to this statement. The district court then struck the statement from the record and
instructed the jury to disregard it.
Assuming that the struck statement was improper burden-shifting, this statement
does not warrant reversal under either harmle ss-error standard. Schuety’s trial counsel
immediately objected to the statement, and the district court sustained that objection. The
district court also instructed the jury to disregard the stat ement. On appeal, a reviewing
court must assume that jurors listen to and follow all instructions from the court. State v.
Ferguson, 581 N.W.2d 824, 835 (M inn. 1998). In addition, th e statement was brief, any
implication of burden shifting regarding the text messages was not pervasive, and the
evidence against Schuety was strong. See State v. Davis , 735 N.W.2d 674, 682 (Minn.
2007) (explaining that appellate courts look to “the strength of the evidence against the
defendant, the pervasiveness of the imprope r suggestions, and whether the defendant had
an opportunity to (or made efforts to) rebut the improper suggestions”). K.C. testified about
the assault, she confronted Schuety about his actions that night, narrated what happened
that evening on her phone, an d called the police the next morning to report the sexual
assault. The prosecutor’s statement that Schuety had not presented any other text messages
constitutes harmless error.

22
Schuety asserts a second instance of burden-shifting. During closing argument, the
prosecutor said:
[I]f somehow [the assault] tri ggered her and so she really
wasn’t raped or sexually assaul ted, her rape from the age of
13 . . . was triggered during this. [K.C.] has a little boy.
Presumably she’s had sex with somebody in the meantime.
There’s been no evidence pres ented that she runs around
falsely accusing people of raping her.

Schuety objected to this statement, the district court sustained the objection and instructed
the jury to disregard it.
Again, even assuming this constitutes improper burden-shifting, this statement does
not meet either harmless error standard to warrant reversal. Like the improper-burden-
shifting complaint above, the district court inst ructed the jury to di sregard the statement,
and we assume that the jury followed its instruction. See Ferguson, 581 N.W.2d at 835.
What is more, when co mpared to the weight of the ev idence presented at trial, this
statement regarding K.C.’s prior sexual assau lt was an isolated, immediately objected-to
statement. Thus, the prosecutor’s statemen t regarding Schuety’s inability to provide
evidence that K.C. falsely reported a previous sexual assault was harmless error.
B. Unobjected-to misconduct
Schuety also brings two claims of prosecutorial misconduct that were unobjected to
during trial. When the defendant fails to object to prosecutorial misconduct during trial, we
review the misconduct under a m odified plain-error standard. See State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). The defendant bears the burden of establishing (1) error
(2) that is plain. Id. An error is plain if it “contravenes case law, a rule, or a standard of

23
conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). If the
defendant meets that burden, the burden then shifts to the state to prove that the misconduct
did not affect the defendant’s substantial rights—that is, that there is no reasonable
likelihood that, without the misc onduct, there would be a significant effect on the jury’s
verdict. Ramey, 721 N.W.2d at 302. In determining misconduct’s effect on the defendant’s
substantial rights, we consider “(1) the strength of the state’s evidence; (2) the
pervasiveness of the erroneous conduct; and (3) whether the defendant had an opportunity
to rebut any improper remarks.” State v. Longo, 909 N.W.2d 599, 609 (Minn. App. 2018)
(quotation omitted).
First, Schuety argues that the prosecut or improperly vouched for the responding
officer in closing argument. The prosecutor stated, “Mr. Schuety confirmed that there
weren’t any other texts other than what’s been admitted into evidence following the
assaults. . . . [The responding officer] didn’t think [K.C.] was lying. She reported in the
morning. He said, she seemed—he believed her.”
Vouching occurs when “the [prosecuto r] implies a guarantee of a witness’s
truthfulness, refers to facts outside the reco rd, or expresses a personal opinion as to a
witness’s credibility.” State v. Patterson , 577 N.W.2d 494, 497 (Minn. 1998) (quotation
omitted). Because the prosecutor said that the responding officer “believed” K.C.’s
statement, Schuety argues, the statemen t constitutes improper vouching for K.C.’s
credibility.
The state counters that Schuety takes the statement out of context and that it is more
properly understood as an explanation as to why the responding officer did not pursue a

24
search warrant of Schuety’s p hone to look for more texts. Thus, the state argues, the “he
believed her” language does not relate to the responding officer’s general credibility
determination of K.C., but to his belief that there were no other text messages between
K.C. and Schuety.
We need not determine whether, in context, this unobjected-to statement was plain
error because the state has met its burden of showing it did not affect Schuety’s substantial
rights. The state’s evidence against Schuety was strong. In addition, the prosecutor’s
alleged vouching was an isolated incident in the middle of a long closing argument. Finally,
Schuety’s trial counsel had the chance duri ng her own closing argument to rebut the
misconduct but chose not to do so. Thus, even if this statement were plain error, it does not
amount to reversible prosecutorial misconduct.
Second, Schuety argues that the pros ecutor committed reversible misconduct by
repeating K.C.’s hearsay statemen t that K.C.’s therapist told her that trauma can affect a
person’s memory during closing argument. The prosecutor stated that K.C. “testified also
that her therapist says that trauma can cause forgetting the details. Can’t imagine a bigger
trauma than being sexually assaulted.”
We conclude that, even if the prosecutor plainly committed misconduct by repeating
inadmissible hearsay during closing argument, the error did not significantly impact
Schuety’s substantial rights. First, this was on e repeated hearsay statement in the face of
strong evidence from the state. Second, the improper statement came in the middle of a
long closing argument in whic h the state mainly focused on other evidence. Finally,
Schuety’s trial counsel had the opportunity to address K.C.’s credibility during her own

25
closing argument and did so, arguing that K.C .’s testimony was clouded “because of this
prior rape and not necessarily because of what my client allegedly did to her.” As a result,
the state’s repetition of K.C.’s hearsay stat ement during its closing argument did not
constitute reversible prosecutorial misconduct.
V. The delay between the assault and Schuety ’s charging did not violate his due
process rights.

Schuety next alleges that the delay between K.C.’s assault and his charging violated
his due process rights. He asserts that, beca use almost a year passed between the assault
and the police’s initial interview of him, even though he was the only suspect, his memory
of the assault faded and limited his ability to mount a proper defense.
Schuety advances a new standard for ev aluating police delay in investigating a
crime that is distinct from our standard when evaluating for prosecutorial delay in bringing
charges for a crime. To estab lish reversible prosecutorial delay in charging, the appellant
must prove “both actual prejudice and an improper state purpose” for the delay. In re
Welfare of F.C.R., 276 N.W.2d 636, 639 (Minn. 1979) (emphasis added). Schuety suggests
that, for police delay in investigation, he ne ed not show that the police had an improper
motive but need only show the delay was unreasonabl e. Because the police had “no
reasonable reason” to delay their investigati on, Schuety argues, his ability to mount an
adequate defense was prejudiced.
Schuety’s argument fails because it is forfeited. First, it is forfeited because Schuety
raises it for the first time on appeal. See Roby, 547 N.W.2d at 357. Schuety did not provide
the district court the opportunity develop a factual record on this issue, which would in turn

26
provide us with the ability to adequately evaluate the re asonableness of any delay. Id. at
356 (stating that the allegations raised in a petition must have factual support). Second, the
argument is forfeited because Schuety provide s no legal authority supporting why our
standard of review for police delay should differ from the standard of review for
prosecutorial delay. See Louden v. Louden, 22 N.W.2d 164, 166 (Minn. 1946) (explaining
that an argument is forfeited when it is a mere assertion of error and prejudicial error is not
“obvious on mere inspection”).
VI. A new trial is not warranted based on multiple errors.

Schuety finally argues that the cumulative weight of harmless errors warrants a new
trial. In rare cases, the cumulative effect of multiple harmless erro rs may be cause for a
new trial if the errors led to an unfair trial. State v. Litzau, 650 N.W.2d 177, 187 (Minn.
2002). In determining whether to reverse, we balance the severity of the errors with the
weight of the evidence against the defendant. See State v. Cermak, 350 N.W.2d 328, 334
(Minn. 1984). A new trial is warranted when the errors “affect the jurors’ deliberations or
their assumptions about [Sch uety’s] innocence or guilt.” State v. Erickson , 610 N.W.2d
335, 341 (Minn. 2000).
To accept Schuety’s argument that the cumu lative weight of the errors warrants a
new trial, we must first find several errors. While there were some errors committed during
Schuety’s trial, these errors were few and not severe. The errors were either objected to by
Schuety’s trial counsel and corrected by the di strict court, or were harmless and did not
significantly impair Schuety’s substantial rights. Compared with the weight of the evidence

27
pointing towards Schuety’s guilt, these errors are not egregi ous enough to warrant a new
trial.
Affirmed in part, reversed in part, and remanded.