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This opinion is nonprecedential except as provided by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
A20-0585

State of Minnesota,
Respondent,

vs.

Wlemonger Emmanuel Deward,
Appellant.

Filed August 1, 2022
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-19-2413

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Wheelock, Judge; and
Cleary, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JESSON, Judge
After a suicide note from one of his stepchildren revealed a pattern of sexual abuse,
appellant Wlemonger Deward was charged with two counts of first-degree criminal sexual
conduct. A jury found Deward guilty of both counts, in part based on the testimony of his
two stepchildren. In a petition for postconviction relief, Deward alleged that he received
ineffective assistance of counsel due to an inadequate investigation and failure to call
favorable witnesses. Following a hearing, t he postconviction court denied the petition,
concluding that the alleged errors were matters of trial strategy that are inappropriate for
review. Deward appeals. Because the matters challenged as ineffective assistance
amounted to trial strategy, and because the evidence supports the second count of
first-degree criminal sexual conduct, we affirm.
FACTS
This appeal stems from repeated instances of Deward’s alleged sexual abuse of his
stepchildren, L.C. and Z.C. The conduct spanned from 2012 to 2018. The allegations of
sexual abuse were first disclosed to law enforcement in May 2018 when L.C. was being
treated for suicidal ideations. L.C. gave his therapist a note that stated: “I was raped when
I was 6 (four days before my 7th birthday). I feel like it shouldn’t impact me as much as
it does, but it impacts me a lot.” Although the note did not name Deward, L.C. later told
3
hospital staff that Deward was the person who sexually assaulted him. The state charged
Deward with two counts of first-degree criminal sexual conduct.1
Trial Testimony
A six-day jury trial was held in November 2019. Both Z.C. and L.C. testified. 2
Z.C. was the first to testify. At the time of the trial, Z.C. was 11 years old. Z.C.
explained that, starting when she was roughly four years old, Deward would enter her
bedroom at night and use his penis to “do inappropriate things” to her vagina. Z.C.
described sexual assaults by Deward in at least two of the houses they lived in, including
their house on Dupont Avenue in Minneapolis. After a while, Z.C. told her aunt about
what had occurred. Her aunt repeated the allegations to Z.C.’s grandmother and mother.
Z.C. also testified that “normally” she, L.C., and their other siblings would stay at their
grandmother’s house during the summer.
L.C. testified second. L.C. was 13 years old during the trial. L.C. explained that
while he was living at their Dupont Avenue home, Deward entered the bedroom and lifted
L.C. off of his bed. Deward then pulled down L.C.’s pants and inserted his penis into
L.C.’s anus. L.C.’s testimony was detailed, including the use of diagrams and descriptions
of how their bodies were position ed during the sexual assault and how it made him feel.
L.C. was then asked to clarify how he knew this particular assault occurred four days before
his seventh birthday. L.C. stated that “[b]ecause three days before that, I had friends who

1 Minn. Stat. § 609.342., subd. 1(a) (2018).
2 Six other witnesses, including L.C. and Z.C.’s sister, a therapist, two forensic
interviewers, a child- protection investigator, and a Minneapolis Police Department
investigator, also testified at trial.
4
had their birthday on the 4th. And then I knew that my birthday was coming up, so I was
counting down the days.” He clarified that he was “very excited” for his birthday, so he
would continuously repeat to himself “four days,” “three days,” counting down to his
birthday on July 11. Although more instances of abuse were alleged in the complaint, this
was the only specific event that L.C. testified to. According to L.C., their mother did not
believe either his or Z.C.’s allegations.
The jury found Deward guilty of both counts of first-degree criminal sexual conduct.
The district court sentenced Deward to 156 months’ imprisonment and a ten- year
conditional release for count 1 and a concurrent 345 months’ imprisonment and lifetime
conditional release on count 2.
Deward appealed, and this court stayed the appeal and remanded the case to the
district court to permit him to pursue postconviction relief. In his petition for
postconviction relief, Deward alleged that he received ineffective assistance of counsel due
to an inadequate investigation and failure to call favorable witnesses.
3 This court stayed
his direct appeal pending the outcoming of the petition for postconviction relief. The
district court granted a postconviction evidentiary hearing.
Postconviction Proceedings
The evidentiary hearing took place on three different days. Six witnesses were
heard: Deward, Deward’s wife (and mother of Z.C. and L.C.) (mother), Deward’s two
biological children, Z.C., and Deward’s trial counsel.

3 Deward also alleged that Z.C. recanted her testimony, but that claim is not material to this
appeal.
5
Important to this appeal was the testimony of trial counsel. Trial counsel testified
that he met with Deward roughly six times, but most of the documents and other evidence
came from mother. This evidence included L.C. and Z.C.’s medical records, some videos,
and photographs of the children’s bedroom door of the Dupont house. She also provided
a list of potential witnesses, some of which trial counsel followed up with but “some of
them didn’t want to say anything to us; others didn’t really say what we thought they would
say or what we were told they would say, and others didn’t have anything that was
particularly helpful.”
Trial counsel recalled speaking with Deward about a possible alibi involving his
in-person alcohol treatment, but he determined that the alibi “did not work timing wise.”
He also relayed a “long discussion” he had with Deward about whether or not they should
call certain witnesses, including Deward himself. According to his counsel, the decision
to call witnesses was left up to Deward, who declined to call any one. This included
Deward’s biological children, who trial counsel explained could have “open[ed] the door”
to evidence that they did not want before the jury.
The postconviction court denied Deward’s petition for postconviction relief. In
doing so, the postconviction court found the testimony of Deward and mother “less
credible” than the other witnesses at the postconviction hearing. The court concluded that
trial counsel’s decision to not call certain witnesses—which comprised Deward’s first three
claims of ineffective assistance of counsel — amounted to trial strategy.
4 As to the claim

4 And despite being trial strategy, the court found the reasons for not calling the witnesses
to be objectively reasonable.
6
that trial counsel did not adequately investigate the potential alibi, the court found trial
counsel’s performance both objectively reasonable and without prejudice to Deward, and
pointed to testimony that trial counsel did in fact investigate the alibi before concluding
that there was a timing issue.
5
Deward appeals his convictions and the denial of his petition for postconviction
relief.
DECISION
I. Trial counsel’s choices regarding the extent of investigation and witness
selection are matters of trial strategy.

Deward claims that he received ineffective assistance of counsel based on several
failures from his trial counsel.
We review a postconviction court’s denial of postconviction relief for an abuse of
discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). A postconviction court
abuses its discretion by exercising its discretion in an arbitrary or capricious way, basing
its decisions o n an erroneous view of the law, or by making clearly erroneous factual
findings. Id. This court reviews legal issues de novo and reviews factual issues to

5 There were two other claims of ineffective assistance of counsel that the postconviction
court denied, which are not before us on appeal. The first was that trial counsel failed to
investigate whether L.C. and Z.C. had HSV-2 (more commonly known as herpes). But the
court credited trial counsel’s testimony that he received this medical documentation from
mother and was aware that they did not have herpes. The final claim was that trial counsel
failed to file pretrial Paradee motions. See State v. Paradee, 403 N.W.2d 640, 642 (Minn.
1987) (ruling that criminal-sexual-conduct defendants may request t hat the court conduct
an in-camera examination of confidential records and provide any relevant records to the
parties). But the postconviction court concluded that, because there were Paradee motions
filed by trial counsel, this claim was “entirely without merit.”
7
determine whether there is sufficient evidence in the record to sustain the postconviction
court’s findings. Id.
With regard to ineffective-assistance-of-counsel claims, as are presented here, we
utilize the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). To prevail on such a claim,
an appellant must demonstrate that (1) “counsel’s performance fell below an objective
standard of reasonableness” (objectiveness prong), and (2) a reasonable probability exists
that the outcome would have been different but for counsel’s errors (prejudice prong).
Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020) (quotation omitted). We need not
address both prongs if one is determinative. Id.
Under the first prong of Strickland, we examine whether counsel’s “representation
fell below an objective standard of reasonableness.” Str ickland, 466 U.S. at 688. An
objective standard of reasonableness is the level of “customary skills and diligence that a
reasonably competent attorney would perform under similar circumstances.”
Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009) (quotation omitted). There is “a strong
presumption that counsel’s performance was reasonable.” Anderson v. State,
830 N.W.2d 1, 10 (Minn. 2013). Matters involving trial strategy that we generally do not
review include “[t]he extent of counsel’s investigation,” id., counsel’s decisions regarding
what evidence to present, see State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006) (“What
evidence to present and which witnesses to call at trial are tactical decisions properly left
to the discretion of trial counsel”), and counsel’s advice to the client, e.g., State v. Brocks,
8
587 N.W.2d 37, 43 (Minn. 1998) (concluding that counsel’s advice about what the
defendant should discuss at trial was reasonable trial strategy).
Deward broadly argues two errors in his trial counsel’s assistance: a constitutionally
inadequate investigation and a failure to call witnesses. We review each in turn.
Constitutionally Inadequate Investigation
For the claim of constitutionally inadequate investigation, Deward alleges three
errors by trial counsel: (1) not taking photos of the children’s bedroom lock; (2) failing to
investigate and introduce evidence of a prior false accusation of abuse against Deward; and
(3) neglecting to share evidence of Deward’s alcohol treatment with him.
First, Deward argues that trial counsel did not take photos of the lock on the door to
the Dupont Avenue bedroom where Z.C. and L.C. slept during some of the alleged assaults.
This photo falls into the contours of trial strategy because the photo of a lock on the
bedroom door would not have established that the door was locked on any of the nights of
the alleged assaults. And regardless, the postconviction court credited trial counsel’s
testimony that he believed the evidence already established the “difficulty of committing
the sexual assault in the bedroom,” making the additional photo unnecessary. It is
reasonable for trial counsel to not obtain a photo of the bedroom door lock.
6
Second, Deward contends that his trial attorney inadequately investigated his case
based on a failure to examine and introduce evidence of a prior false accusation of abuse

6 Deward brought a third challenge under his ineffective- assistance-of-counsel claim,
which was that his trial counsel failed to “present any evidence.” However, as Deward
points to no other specific evidence that was not presented, this is just another way to argue
about the lack of a photo showing the bedroom door lock.
9
against Deward. Specifically, the trial attorney did not investigate allegedly false
allegations against Deward that Z.C. and L.C. made in the past to child protection. This
allegation stems from the assertion that Deward and his wife were aware that his children
were making false accusations to child protection against him and relayed that information
to the trial counsel. But even if this assertion were true, it was reasonable for the trial
counsel to avoid probing this line of questioning through Deward or his wife in the manner
that Deward suggests because it would have been barred by Minnesota Rule of Evidence
608(b), which generally bars the admission of extrinsic evidence of specific instances of
truthfulness or untruthfulness. See also State v. Ferguson, 581 N.W.2d 824, 834 (Minn.
1998).
Third, Deward alleges that trial counsel did not show him his alcohol-treatment
records, which could have established an alibi. As a matter of trial strategy, trial counsel
determined that the alcohol-treatment records would not have established an alibi, as the
time range in the complaint spanned over six years—far longer than the time Deward spent
in treatment. This shows not only that trial counsel investigated this potential alibi, but
also that counsel reasonably ruled out this alibi as a possible defense.
Failure to Call Witnesses
Deward next alleges trial counsel erred by failing to call favorable witnesses.
Specifically, Deward wanted his trial counsel to call his wife and two biological children
to testify.
The calling of witnesses falls directly in the area of trial strategy that we generally
do not review for ineffective assistance of counsel. Mems, 708 N.W.2d at 534. Even if we
10
were to second guess the trial counsel’s strategy, the testimony that Deward now seeks
through his family witnesses was either already established or likely inadmissible.
According to Deward, his biological children would have testified about the difficulty of
Deward sexually abusing Z.C. and L.C. in their bedroom due to the number of people in
the house. But this was already part of trial counsel’s cross-examination of both L.C. and
Z.C., making Deward’s biological children’s testimony repetitive. As for wife’s testimony
that Z.C. and L.C.’s reports of prior abuse to children protection were false, as explained
above, this is likely barred by Minnesota Rule of Evidence 608(b). For these reasons, it is
reasonable that trial counsel did not choose to call these witnesses.
In sum, because Deward’s challenges implicate matters of trial strategy that we do
not review, the postconviction court did not err in concluding that Deward did not receive
ineffective assistance of counsel. See Peltier, 946 N.W.2d at 372 (affirming without
addressing the first prong).
II. The evidence was sufficient to support a conviction as to L.C.

Next, Deward argues that the evidence was not sufficient to support a conviction of
first-degree criminal sexual conduct. This is a narrow challenge and involves solely the
conviction comprising the assault against L.C. Deward’s challenge is based on Z.C.’s
testimony that the children “normally” spend the summer at their grandmother’s home.
To assess whether sufficient evidence supports a conviction, this court “carefully
examine[s] the record to determine whether the facts and the legitimate inferences drawn
from them would permit the jury to reasonably conclude that the defendant was guilty
beyond a reasonable doubt of the offense of which he was convicted.” State v. Griffin,
11
887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). When direct evidence supports
an element of an offense, this court’s review is limited “to a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to permit the jurors to reach the verdict which they did.”
State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted). We assume that the
jury believed the state’s witnesses and did not credit any testimony to the contrary.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not overturn a jury verdict if
the jury could have reasonably found the defendant guilty, giving due regard to the
presumption of innocence and the state’s burden of proof beyond a reasonable doubt.
Griffin, 887 N.W.2d at 263.
Before getting to the evidence introduced, first we look to the elements of the
first-degree criminal sexual conduct statute,
7 which criminalizes
A person who engages in sexual penetration with another
person, or in sexual contact with a person under 13 years of age
as defined in section 609.341, subdivision 11, paragraph (c), is
guilty of criminal sexual conduct in the first degree if any of
the following circumstances exists:
(a) the complainant is under 13 years of age and the
actor is more than 36 months older than the
complainant. Neither mistake as to the complainant’s
age nor consent to the act by the complainant is a
defense;

Minn. Stat. § 609.342, subd. 1(a).

7 This statute was reordered in 2021. The current version of this statute is Minnesota
Statutes section 609.342, subdivision 1a(e) (Supp. 2021).
12
With this statute in mind, we turn to the evidence presented by the state. Viewed in
the light most favorable to the verdict, the state established that L.C. was under 13 years of
age and that Deward was more than 36 months older than L.C. at the time of the assault.
And L.C. testified that Deward sexually penetrated him. This alone is sufficient evidence
of first- degree criminal sexual conduct. Minn. Stat. § 609.347, subd. 1 (2020); see
State v. Carver, 380 N.W.2d 821, 827 (Minn. App. 1986) (concluding that victim testifying
that an appellant sexually penetrated her was all that was required to constitute sufficient
evidence), rev. denied (Minn. Mar. 27, 1986). Regardless, L.C. went into great detail of
the sexual assault at trial, including diagrams and the body positions of both L.C. and
Deward during the assault. We are to assume that the jury believed this testimony. Moore,
438 N.W.2d at 108. Similarly, L.C.’s description of how he remembered the date of the
assault was specific, and would require this court to infer that a seven year old would not
remember their own birthday.
To convince us otherwise, Deward does not make any arguments other than the sole
assertion that the assault against L.C. was “impossible” because, as described by Z.C., the
children spend summers at their grandmother’s house. But Z.C. only testified that they
“normally” spent most of the summer at their grandmother’s house, not that they spent the
entire summer in 2017 (the year of the specific assault L.C. testified to) away from the
Dupont Avenue home. Notably, this argument regarding summers spent with grandmother
was also made to the jury in the closing arguments and we must presume it was rejected.
13
In sum, the evidence was sufficient to support the second conviction of first-degree
criminal sexual conduct.8
Affirmed.

8 Deward also raises a general issue where he critiques every conclusion in the
postconviction court order point by point. But he does not argue that the postconviction
court abused its discretion, nor does he clearly point to an error that is not otherwise raised
in his ineffective assistance of counsel argument. Because it is Deward’s burden to show
prejudice, this argument is not properly before us. See Loth v. Loth, 35 N.W.2d 542, 546
(Minn. 1949) (requiring appellant to demonstrate prejudice).