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This opinion is nonprecedential except as provided by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
A19-1995

State of Minnesota,
Respondent,

vs.

Brenda Lanise Bethune,
Appellant.

Filed August 2, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Mille Lacs County District Court
File No. 48-CR-18-1819

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Joe Walsh, Mille Lacs Coun ty Attorney, Timoth y Kilgriff, Assistant County Attorney,
Milaca, Minnesota (for respondent)

Cathryn Middlebrook Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from a judgment of conviction for aiding and abetting attempted
second-degree murder, and following a stay and remand to the district court for
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postconviction proceedings, appella nt Brenda Lanise Bethune ar gues (1) that the district
court abused its discretion by summarily denying her petition for postconviction relief
based on ineffective assistance of counsel for failing to move to suppress evidence found
during warranted searches; (2) that the district court erred by imposing sentences for both
aiding and abetting attemp ted murder and aiding and abetti ng assault; and (3) in a pro se
supplemental brief, that the state engaged in prosecutorial misconduct during closing
argument. Because the district court did not abuse its discretion by determining that defense
counsel’s decisions were strategic and su mmarily denying postconviction relief, and
because no prosecutorial miscon duct occurred, we affirm in part. However, because the
district court erred by imposing a sentence for assault when that offense arose out of the
same behavioral incident as the attempted-murder offense, we reverse and remand for the
district court to correct Bethune’s sentence.
FACTS
The following facts were established at Beth une’s jury trial. On August 3, 2018,
C.A. and his wife N.A. were at C.A.’s mother’s residence when a white Cadillac Escalade
pulled up in front of the hous e. Bethune and a male, J.S., ex ited the vehicle and began to
approach C.A. C.A. knew Bethune. About six months earlier, C.A. had arranged to
illegally purchase prescription drugs from her. At that time, C.A. met Bethune and her son
for the drug purchase; the son gave C.A. pills, and C.A. drove off without paying for them.
That was the last time that C.A. saw Bethune before August 3.
Bethune and J.S. walked up the driveway and met C.A., shouting at him and
demanding money. J.S. was carrying a gun. Af ter some arguing among the parties, J.S.
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fired his gun at the ground. J.S. then pointed the gun at “point-blank range” at C.A.’s head
and fired. C.A. moved his head, and the bullet struck him in his right ear. C.A. moved his
upper body into the doorway of his car and attempted to call 911 by accessing his vehicle’s
Bluetooth. J.S. fired a third shot, striking C.A. near his kne ecap. Bethune and J.S. then
kicked and punched C.A. while C.A. was tr ying to place the call. A neighbor, who
witnessed the altercation, reported seeing J.S. with the gun.
C.A., through his vehicle’s speakerphone feature, reached a police dispatcher, and
Bethune was heard demanding money from C.A ., shouting, “About that money you stole
from my (inaudible) right now,” “no police,” and “(inaudible) will be a dead mother f----
r.” Bethune and J.S. fled afte r C.A. contacted the dispatch er. C.A. described the white
Cadillac, gave the direction in which Bethune and J.S. had fled, and identified the female
with J.S. as “Brenda.”
Police intercepted the white Cadillac appr oximately a quarter mile away from the
scene of the shooting. During an inventory sear ch of the vehicle, officers located a small
plastic bag containing a suspected controlled substance.
Returning to the scene, police located three 40-caliber Smith and Wesson shell
casings. C.A. told officers that the gun J.S. used to shoot him was “silver” and had a “black
handle.” The following morning, officers located a black a nd silver 40-caliber Smith and
Wesson on the side of the road somewhere between the scene and where the white Cadillac
was intercepted by police.
The shell casings found in the driveway at the scene were later determined to have
been fired from the gun found on the side of the road. The owner of the gun was of some
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relation to J.S. J.S.’s clothes were later an alyzed for blood, and his shirt returned around
“100 spatter stains” consistent with a “spatter producing event” such as a “gunshot.”
Officers later secured a warrant to search the white Cadillac and located “blue pills
in a plastic bag” and prescription bottles belo nging to Bethune. The pills in the vehicle
returned as oxycodone-acetaminophen, hydrocodone (Vicodin), and Xanax. Bethune had
prescriptions for two of the substances but not for the Vicodin. And, although Bethune had
a prescription for the oxycodone-acetaminophe n, the bottle was filled the day of the
shooting, and, of the 60 pills dispensed, only 23 remained. During this search, a phone on
the passenger seat was also collected. Pursua nt to a second warrant, texts messages were
recovered from Bethune’s phone , including a series of messages exchanged between
Bethune and C.A. surrounding the incide nt six months earlier, when C.A. stole
approximately $400 worth of drugs from Beth une’s son. In those messages, Bethune and
C.A. referred to guns.
Respondent State of Minnesota charged Bethune with aiding and abetting attempted
second-degree murder of C.A., second-degree assault of C.A., and fifth-degree possession
of a controlled substance.
At a pretrial hearing, defense counsel discussed the “phone dump” and requested a
continuance to review the evidence. Both defense counsel and the prosecutor indicated that
they had received the evidence from the “phone dump” approximately ten days earlier, and
defense counsel stated that she was not prepared to go forward. The district court granted
a continuance on the basis of the additional evidence received, noting that it did not “want
[the state’s] case to be vulnerable to any claim of ineffective assistance of counsel because
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something wasn’t gone over and something was missed.” Defense counsel did not
thereafter challenge the text messages, the warrants, or the search of appellant’s cellphone.
Defense counsel also did not object to the state’s introduction of the text messages at trial
and, in fact, referred to those messages during direct examination of Bethune and referred
to information reflected in the text messa ges during cross-examination of prosecution
witnesses.
The jury found Bethune guilty of aiding and abetting second degree assault, aiding
and abetting attempted second-degree mu rder, and fifth-degree drug possession. 1 The
district court sentenced Bethune to a presumptive 173 months’ imprisonment on the third
count.
Bethune appealed, and this court stay ed the appeal pending postconviction
proceedings. Bethune petitioned for postconviction relief, arguing that she was entitled to
a new trial because her lawyer provided ine ffective assistance of counsel by failing to
challenge the search warrants ex ecuted in this case. The dist rict court denied Bethune’s
petition without an evidentiary hearing. We then reinstated this appeal.
DECISION
Bethune raises two challenges to her convictions: first, that the district court abused
its discretion by summarily rejecting her in effective-assistance-of-counsel claim; and
second, in her uncounseled brief to this cour t, that the state engaged in prosecutorial
misconduct. She also argues, and the state agrees, that the district court erred by sentencing

1 The state had also charged Bethune with o ffenses against N.A., but the jury acquitted
Bethune of those charges.
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her for aiding and abetting second-degree assault because that offense occurred during the
same behavioral incident as aiding and ab etting second-degree a ttempted murder. We
address each argument in turn.
I. The district court did not abuse it s discretion by summarily denying
postconviction relief.

Appellate courts review a district court’s decision to deny postconviction relief for
an abuse of discretion. Chavez-Nelson v. State , 948 N.W.2d 665, 671 (Minn. 2020). A
district court may summarily deny postconviction relief if the allegations in the petition are
legally insufficient to entitle the petitioner to relief. Id. If a petitioner’s claim is premised
on ineffective assistance of counsel, the petiti oner is entitled to an evidentiary hearing if
the petitioner “allege[s] facts that, if proven by a fair preponderance of the evidence would
satisfy the two-prong test set forth in Strickland v. Washington.” Id. (quotation omitted).
The two-prong Strickland test requires a petitioner to prove that (1) “counsel’s
performance was deficient”—in other words, that the representation fell below an objective
standard of reasonableness—and (2) “the deficient performance prejudiced the defense”—
that is, that there was a reasonable probability that, but for counsel’s deficiency, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); see also State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013).
If one prong is determinative, we need not review the other. Chavez-Nelson, 948 N.W.2d
at 671. “Because claims of ineffective assi stance of counsel invo lve mixed questions of
law and fact,” appellate courts review d ecisions by the postconviction court de novo.
Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
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We begin with the first prong of the Strickland test—the performance prong.
Bethune argues that her trial counsel’s performance was objectively unreasonable
because her counsel did not move to suppress text messages discovered during a warranted
search of Bethune’s cellphone. She conten ds that the two warrants under which the
cellphone was searched violated her Four th Amendment rights because both warrant
applications were insufficiently particular re garding the scope of the search and because
the warrants were not supported by probable cause that evidence of a crime would be found
on the cellphone.
The district court summarily denied Bethune’s postconviction petition. It
determined that defense counsel’s decision not to bring a suppression motion was based on
trial strategy and was not objec tively unreasonable. The distri ct court noted that counsel
referred to information from the text messa ges in opening statem ents to “present
[Bethune]’s legal case,” that defense counsel requested a recess when the messages were
first admitted by the state to “ensure that al l the text messages [defense counsel] intended
to have in evidence were submitted,” and that defense counsel used those text messages
during her direct examination. The district court concluded that summarily denying
postconviction relief was appropriate because, even if the facts alleged in the petition were
accepted as true and were construed in the light most favorable to the petitioner, the record
conclusively established that Bethune coul d not satisfy the performance prong of the
Strickland test.
Appellate courts generally do not review ineffective-assistance-of-counsel claims
“when the attorney’s conduct in que stion is based on trial strategy.” Chavez-Nelson, 948
8
N.W.2d at 671. Counsel’s strategic decisions include “what evidence to present to the jury,
what witnesses to call, and whether to object” to the state’s evidence. Carridine v. State,
867 N.W.2d 488, 494 (Minn. 2015) (quotation omitted ). “To meet the burden of
Strickland’s first prong, a defendant arguing ine ffective assistance of counsel must
overcome the strong presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” State v. Rhodes, 657 N.W.2d 823, 844 (Minn.
2003) (quotation omitted). The reasonableness of counsel’s conduct is considered based on
the facts of each case and “viewed as of the time of counsel’s conduct.” Id. (quotation
omitted).
Bethune argues that counsel’s performance was unreasonable because the warrants
were not sufficiently particular or suppor ted by probable cause and a suppression motion
therefore would have been granted. But a decision not to pursue even a likely-to-be-
successful suppression motion is not per se ine ffective assistance of counsel, particularly
when the decision is based on sound strategy. See Kimmelman v. Morrison, 477 U.S. 365,
382, 106 S. Ct. 2574, 2586-87 (1986) (explai ning that failure to file a meritorious
suppression motion does not per se establis h a Sixth Amendment violation). Here, the
strategic nature of defense counsel’s decision is evident from her theo ry of the case. At
trial, defense counsel portrayed the state’ s main witness—victim C.A.—as the initial
aggressor in this confrontation by highlighting that C.A. had stolen money from Bethune’s
son, had attempted to run over Bethune’s s on with his car, and had threatened Bethune
since he was the first person to bring up firearms in their text-message exchange. Counsel
questioned C.A. directly about the text exchanges, his threats over text involving firearms,
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and his ownership of firearms. Counsel also questioned a deputy, who had known C.A. for
“years,” whether C.A. was known to have firearms. In light of this use of the text messages
by the defense, we discern no error in the di strict court’s determination that defense
counsel’s decision not to seek suppression of the text messages was based on trial strategy.
Bethune argues, though, that using the text messages as part of trial strategy was
objectively unreasonable because the text messages were potentially harmful to her
defense. But, again, as the district court observed, defense counsel used the text messages
to advance the defense’s theory of the case of C.A. as the aggressor. Defense counsel used
information reflected in the text messages during her opening statement to portray C.A. as
the aggressor and questioned various witne sses about C.A.’s gun ownership, C.A.’s
threatening texts to Bethune me ntioning firearms, and subse quent social media posts by
the neighbor who witnessed the confrontati on that C.A. got “what he deserved” and
“someone finally got him.”
Bethune contends, though, that trial counsel may simply have “had to make the best
of a bad situation” by attempting to use so me of the messages that she had failed to
suppress. However, as the state points out in turn, the state presented substantial evidence
of Bethune’s guilt. Evidence of Bethune’s guilt included the 911-dispatcher recordings of
Bethune demanding money from C.A. and ca lling him a “dead mother f----r,” as well as
the testimony of three witnesses who stated that Bethune, demanding money, initiated the
confrontation as J.S. directed a gun at C. A. Given the substantia l evidence the state
presented of Bethune’s guilt, it may indeed have been reasonable strategy for the defense
to use the text messages to portray the victim as the initial aggressor.
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Bethune also argues that an evidentiary hearing is required “to determine whether
counsel actually knew she co uld move to suppress the ev idence under the Fourth
Amendment” and, if so, whether she in fact subjectively considered and then rejected
bringing a suppression motion. We disagree. Minnesota courts deny postconviction relief
without an evidentiary hearing involving an inquiry into counsel’s subjective state of mind
when the record is sufficient to determine that the complained-of conduct is based on trial
strategy. See, e.g., Carridine, 867 N.W.2d at 493-94. Further, Strickland establishes an
objective, rather than subjective, standard. 466 U.S. at 688, 104 S. Ct. at 2064. The
“objective standard is defined as representa tion by an attorney ex ercising the customary
skills and diligence that a reasonably compet ent attorney would pe rform under similar
circumstances.” Opsahl, 677 N.W.2d at 421 (quotation omitted). Under this objective
standard, the record conclusively establishes that trial counsel’s decision to utilize the text
messages in Bethune’s defense was objectively reasonable and based on trial strategy.
Bethune contends that Nicks compels a different result. 831 N.W.2d at 493. We
disagree. In Nicks, a petition for postconviction relief was brought on an ineffective-
assistance-of-counsel claim on the basis that Nicks’s trial counsel failed to examine the
decedent’s cellphone or obtain her cellphone records, in a case in which “the State had to
rely primarily on circumstantial evidence th at included certain cellphone records.” Id. at
496, 502. Nicks asserted that his “counsel attempted to get the cellphone records, wanted
them, but due to inattention and mi sunderstanding did not get them.” Id. at 505. The
supreme court determined that it was evident fro m the record that trial counsel wanted to
obtain the cellphone records and had made partial attempts to obtain them, but, even though
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the records were “a pivotal issue” from the start of the police investigation, id., trial counsel
either “did not read, did not correctly interpret, or failed to understand the cellphone service
provider’s response to the subpoena,” id. at 507. The supreme court thus concluded that
counsel’s course of action was distinguishab le from cases where trial counsel’s conduct
fell within the range of unreviewable trial strategy. Id. The supreme court reasoned that
Nicks’s counsel wanted the evidence, presen ted a defense that tu rned on the evidence
having been available, and then failed to take the steps necessary to obtain the evidence.
Id. “Such a course of conduct,” the supreme court concluded, “does not amount to trial
strategy.” Id. The supreme court determined that an evidentiary hear ing was therefore
required to resolve the ineffective-assistance-of-counsel claim. Id. at 508.
This case is distinguishable from Nicks. Here, defense counsel’s course of conduct
related to Bethune’s th eory of the case and Bethune doe s not argue that counsel suffered
from any misunderstanding or deficiency or that her strategy was unreasonably executed.
We conclude that, even when the facts al leged in Bethune’s petition for postconviction
relief are taken as true, the record conclusively demonstrates that Bethune cannot establish
that she received objectively unreasonable assistance of counsel.
Because Bethune’s ineff ective-assistance-of-counsel claim fails under the
performance prong of Strickland, we need not consider the second, prejudice prong.2 The

2 Bethune, citing Kimmelman, 477 U.S. 365, 106 S. Ct. 25 74, asserts that “[a] court
presented with a claim of ineffective assistance of counsel for failing to move to suppress
evidence must first decide whether a suppressi on motion would have be en granted.” It is
true that, if a court determines that a suppression motion would not have been granted, a
petitioner’s ineffective-assistance-of-counsel claim fails. See Johnson v. State, 673 N.W.2d
144, 150 (Minn. 2004). But, as the Supreme Court in Kimmelman makes clear, a
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district court did not abuse its discreti on by summarily denying Bethune’s petition for
postconviction relief.
II. Bethune’s pro se claim of prosecutorial misconduct fails.
Bethune, in a pro se supplemental br ief, argues that the prosecutor committed
misconduct during closing argu ment by intentionally misst ating the evidence and by
improperly offering an opinion on Bethune’s credibility. Th e state observes that Bethune
did not object at trial and contends that her argument is actually just a disagreement over
what the evidence established and that the prosecutor was proper ly arguing reasonable
inferences to be drawn from the evidence.
Because the prosecutor’s statements were not objected to at trial, any claim of
prosecutorial misconduct is reviewed un der a modified plain-error standard. See State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under that standard, the appellant first bears
the burden of establishing an error and that the error is plain. State v. Waiters, 929 N.W.2d
895, 901 (Minn. 2019). We need not address the remaining elements of the modified plain-
error test if the appellant fails to establish an error.

meritorious claim is a necessary, but not a sufficient, condition for establishing ineffective
of assistance of counsel based on the fa ilure to bring a suppression motion. See
Kimmelman, 477 U.S. at 382, 106 S. Ct. at 2586-87 (stating that failure to file a likely
meritorious suppression motion is not in itself ineffective assistance of counsel and that
relief is available only to th ose persons who were denied a fair trial “by the gross
incompetence of their attorney s”). Because a reasonable strategic decision not to bring a
suppression motion is insufficient to establish inadequate counsel under Strickland’s
performance prong—even if the motion likel y would have been successful—we (like the
district court in this case) need not evaluate whether a suppression motion would have been
successful.
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Appellate courts examine a prosecutor’s clos ing argument as a whole, rather than
examining selective phrases “that may be taken out of context or given undue prominence.”
State v. Walsh , 495 N.W.2d 602, 607 (Minn. 1993). Prosecutors may present legitimate
arguments based on the evidence and argue reasonable inferences based on that evidence
but may not speculate without factual basis or “misstate the evidence.” State v. Peltier, 874
N.W.2d 792, 804-05 (Minn. 2016) (quotation omitted).
Bethune first cites as erro r a statement in which she connects two disconnected
sentences from the prosecutor’s closing argument. The first sentence, in context, explains
to the jury the meaning of “to aid and abet.” The second sentence, in context, discusses the
reasonable foreseeability of a shooting when threats are made with a firearm. Neither
statement is erroneous.
Bethune next alleges that th ere is no evidence in the reco rd of “a conversation” in
which Bethune “asked, told or hired” J.S. to harm C.A. A careful review of the record
shows that the prosecutor did not state that Bethune “asked, told or hired” J.S. to harm C.A.
There are several instances of the prosecutor explaining the meaning of “to aid and abet,”
which incorporates similar language. This is not error.
Lastly, Bethune argues that the prosecutor improperly gave an opinion on Bethune’s
credibility. The prosecutor told the jury th at there are a “[n]umber of factors that [it] can
take in” when assessing Bethune’s credibility and that the prosecutor “leave[s] that up to
[the jury.]” This also is not error.
Because Bethune has not established erro r, her prosecutorial-misconduct claim
fails.
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III. The district court erred by imposing sentences for both aiding attempted
murder and aiding second-degree assault.

Bethune argues that the district court e rred when it sentenced her on both the
conviction for aiding and abe tting attempted murder and th e conviction for aiding and
abetting second-degree assault. The state agrees.
Minn. Stat. § 609.035 (2018) directs that, with exceptions not applicable here, “if a
person’s conduct constitutes more than one o ffense . . . , the person may be punished for
only one of the offenses.” Minn. Stat. § 609.035, subd. 1. A “person’s conduct” under that
statute “is limited to acts committed during a single behavioral incident.” State v. Branch,
942 N.W.2d 711, 713 (Minn. 2020). “Whether multiple offenses form part of a single
behavioral act is a question of fact,” but where the facts are undisputed, this court reviews
de novo whether the offenses are part of the same behavioral incident. State v. Marchbanks,
632 N.W.2d 725, 731 (Minn. App. 2001). To determine whether offenses arose from a
single behavioral incident, appellate courts consider “time and place . . . [and] whether the
segment of conduct involved was motivated by an effort to obtain a single criminal
objective.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006) (quotation omitted).
The relevant facts are not in dispute. Both offenses occurred during the same
confrontation, on the same day, at one residential address, a nd involved a physical attack
against one victim. Bethune’s actions underlying both offenses evince a unity in time and
in place and were motivated by the same crim inal objective. They therefore arose from a
single behavioral incident. We therefore reverse and remand for the district court to correct
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the warrant of commitment by vacating Beth une’s sentence for ai ding second-degree
assault.
Affirmed in part, reversed in part, and remanded.