State of Minnesota, Respondent, vs. Marcel Dylan Zephier, Appellant.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0757
State of Minnesota,
Respondent,
vs.
Marcel Dylan Zephier,
Appellant.
Filed January 31, 2022
Affirmed; motion denied
Johnson, Judge
Redwood County District Court
File No. 64-CR-19-501
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and
Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin Butler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Redwood County jury found Marcel Dylan Zephier guilty of two counts of first­
degree criminal sexual conduct based on evidence that he sexually abused a nine-year-old
girl. We conclude that the district court did not err by admitting into evidence a video­
recording and transcript of a forensic interview of the complainant or by admitting into
evidence expert testimony concerning delayed reporting by victims of sexual abuse. We
also conclude that Zephier is not entitled to a new trial on the grounds of prosecutorial
misconduct. We further conclude that the post-conviction court did not err by denying,
without an evidentiary hearing, Zephier's claim that his trial attorney provided him with
ineffective assistance of counsel. Therefore, we affirm.
FACTS
In April 2019, 1 7-year-old B .H. confided to a staff member of a girls' group home
that, when she was nine years old, she was sexually abused by Zephier. The group home
reported the information to an officer of the Lower Sioux Indian Reservation Police
Department, who arranged for a forensic interview of B.H. During the interview, B.H.
stated that, on the day in question, she went to her uncle's home. Zephier answered the
door and told her that her cousins were in a back room. As she and Zephier walked toward
the back room, Zephier pulled her into his bedroom. B.H. told the interviewer that she was
afraid and screamed but that no one was present to hear her. She said that Zephier pushed
her onto his bed and tried to remove her pants but that she kicked and began to cry. Zephier
became frustrated and hit her, swore at her, and told her to stop crying. She stopped kicking
but continued .to scream and cry. B .H. stated that Zephier inserted his penis into her vagina.
When he had finished penetrating her, he forced her to touch his penis with her hands and
then told her to get out. During the interview, B.H. stated that Zephier had done similar
things to her cousin and to her sister. She stated that the incident involving her sister had
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not previously been reported but that the incident involving her cousin had been the subject
of a court proceeding. A police officer later interviewed Zephier, who denied the
accusations.
In June 2019, the state charged Zephier with two counts of first-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.342, subd. l( a), (h)(i) (2010). In
December 2019, the state filed a motion in lilnine to establish the admissibility of expert
testimony concerning delayed reporting by sexual assault victims, Spreigl evidence of
Zephier's sexual assaults of two other young female cousins, a video-recording and
transcript of the forensic interview ofB.H., and Zephier's prior charge of domestic assault
by strangulation. After a hearing, the district court granted the state's motion with respect
to the expert testimony and the Spreigl evidence, denied the motion with respect to
Zephier' s prior charge, and deferred its ruling with respect to the video-recording and
transcript of the forensic interview. The district court stated that it would rule on the
admissibility of the forensic interview after B.H. testified at trial.
The case was tried over two days in early January 2020. B.H. was the state's first
witness. Her trial testimony was very similar to the statements she had made during the
forensic interview. Zephier's trial attorney did not cross-examine her. The state called
seven other witnesses, including a group-home staff member, B.H.'s father, and a Lower
Sioux Indian Reservation police officer. B.H.'s sister testified that Zephier sexually
assaulted her when she was eight or nine years old. The forensic interviewer testified and
laid a foundation for the video-recording and transcript of B.H.'s forensic interview. The
district court admitted the video-recording and transcript of the forensic interview after
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finding that B .H.' s credibility had been challenged. The prosecutor played for the jury an
excerpt of the forensic interview in which B.H. described the sexual assault by Zephier. A
law-enforcement officer testified that Zephier previously had sexually assaulted a then-11-
year-old cousin, which resulted in a conviction of fifth-degree criminal sexual conduct.
The state's final witness was Erica Staab-Absher, who testified as an expert concerning the
prevalence of delayed reporting among victims of sexual assault. Zephier did not testify
and did not present any other evidence.
The jury found Zephier guilty of both charges. The district court sentenced him to
144 months of imprisonment. Zephier timely filed a notice of appeal. He later moved this
court for a. stay and a remand so that he could file a petition for post-conviction relief, and
this court granted the motion. In November 2020, he petitioned for post-conviction relief
and alleged that his trial attorney provided him with ineffective assistance of counsel. In
May 2021, the post-conviction court denied his petition without an evidentiary hearing.
This court later dissolved the stay and reinstated the appeal.
DECISION
I. Admissibility of Forensic Interview
Zephier argues that the district court erred by admitting into evidence the video­
recording and transcript of the forensic interview of B.H. He argues that the evidence
should have been excluded on the ground that it is inadmissible hearsay.
Hearsay evidence is defined as an out-of-court statement that is offered to prove the
truth of the matter asserted in the statement. Minn. R. Evid. 801(c); State v. Litzau, 650
N.W.2d 177, 182-83 (Minn. 2002). Hearsay evidence generally is inadmissible as
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substantive evidence. Minn. R. Evid. 80 2; State v. Greenleaf, 591 N.W.2d 488,50 2 (Minn.
1999). But some out-of-court statements are not considered hearsay. Minn. R. Evid.
80l (d). For example, a prior statement by a witness that is consistent with the witness's
trial testimony is considered non-hearsay and, thus, is not inadmissible on hearsay grounds.
Minn. R. Evid. 80l (d)( l )(B). The applicable rule provides: "A statement is not hearsay if
... [t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is ... consistent with the declarant's testimony
and helpful to the trier of fact in evaluating the declarant's credibility as a witness .... "
Id. The purpose of rule 801 ( d)(l )(B) is to allow a party '"to enhance the credibility of a
witness and as substantive evidence if the court determines the statements would be helpful
in evaluating credibility."' State v. Farrah, 73 5 N.W.2d 336, 344 (Minn. 2007) (quoting
11 Peter N. Thompson, Minnesota Practice - Evidence § 801.01 at 439 (3d ed. 2001)).
That purpose is not served, however, unless the credibility of the witness has been
challenged. See id.; State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004); State v. Nunn,
561 N.W.2d 90 2, 909 (Minn. 1997). We apply an abuse-of-discretion standard of review
to a district court's ruling on a hearsay objection. State v. Hallmark, 92 7 N.W.2d 281,291
(Minn. 2019).
Zephier contends that B .H. 's credibility was not challenged before the district court
admitted the prior consistent statement. The district court expressly stated that B .H.' s
credibility had been challenged, "particularly" by Zephier' s emphasis on the evidence that
she had delayed reporting the incident. In its subsequent post-conviction order, the court
reiterated that B .H. 's credibility was challenged in Zephier' s opening statement and in his
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trial attorney's questioning of other witnesses. The post-conviction court likely was
referring to Zephier's trial attorney's comment in his opening statement that "[t]here are
disagreements about what happened, if anything happened." In cross-examining other
witnesses, Zephier's trial attorney sometimes asked questions that appear designed to cast
doubt on the truthfulness ofB.H.'s accusations. Zephier contends that the comment in the
opening statement is too general to constitute a credibility challenge for the purposes of
rule 801 ( d)(l )(B). He also contends that, before the district court's ruling, his trial attorney
had not raised the issue ofB.H.'s delayed report with any witness.
The applicable caselaw indicates that the credibility challenge required by Nunn and
subsequent opinions need not be direct or explicit. The circumstances of State v. Bakken,
604 N.W.2d 106 (Minn. App. 2000), rev. denied (Minn. Feb. 24, 2000), are very similar to
this case. The appellant was convicted of criminal sexual conduct toward a 13-year-old
child, whose interview by a police officer was recorded and later introduced into evidence
under rule 80l(d)(l)(B). Id. at 108. On appeal, this court noted that the child's credibility
had been challenged because the child "was the only witness to present firsthand evidence
against Bakken" and, for that reason, the child's credibility "was central to the case." Id.
at 109.
In this case, it was similarly obvious-if not more so-that the parties' evidence
and arguments were focused on whether B .H. 's testimony was credible. Before trial, the
state sought leave to call an expert witness to testify about B .H.' s delay in reporting the
incident, for the purpose of showing that the delayed report did not diminish B.H. 's
credibility. At the hearing on that motion, the prosecutor confirmed that B .H. intended to
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testify. Zephier's trial attorney asserted various objections at the pre-trial hearing to the
introduction of the forensic interview, but he did not argue at that time that B.H. 's
credibility would not be challenged. Zephier' s trial attorney raised the issue of B .H. 's
credibility in his opening statement by alluding to a disagreement about "what happened"
or whether "anything happened." Cf State v. Grecinger, 569 N.W.2d 189, 193-94 (Minn.
1997) (holding that, for purposes of rule 608(a), state's witness's character for truthfulness
was attacked in defendant's opening statement). That Zephier's trial attorney did not cross­
examine B .H. does not mean that there was no challenge to her credibility; Zephier had
already challenged her credibility and had other means of doing so later in the trial. 1 Given
all of these circumstances, the district court did not abuse its discretion by ruling that B .H.' s
credibility was being challenged.
Thus, the district court did not err by admitting into evidence the video-recording
and transcript of the forensic interview ofB.H.
II. Expert Testimony
Zephier also argues that the district court erred by admitting expert testimony
concerning delayed reporting by victims of sexual abuse.
"[E]xpert testimony is only admissible under Minn. R. Evid. 702 if the proponent
shows that the testimony passes a four-part test: (1) The witness must qualify as an expert;
(2) the expert's opinion must have foundational reliability; (3) the expert testimony must
1 In closing argument, Zephier' s trial attorney challenged B .H. 's credibility in a more
direct manner. Of course, the closing argument was made after the forensic interview was
admitted. But the closing argument confirms the circumstances that were apparent at the
time of the district court's ruling.
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be helpful to the trier of fact; and ( 4) if the testimony involves a novel scientific theory, it
must satisfy the Frye-Mack standard." Doe 7 6C v. Archdiocese of St. Paul, 817 N. W .2d
150, 164 (Minn. 2012). This court applies an abuse-of-discretion standard of review to a
ruling on the admissibility of expert testimony. State v. Thao, 875 N.W.2d 834, 840 (Minn.
2016).
Zephier first contends that the district court should not have qualified the state's
expert witness, Staab-Absher, as an expert witness. A witness may be qualified as an expert
"by knowledge, skill, experience, training, or education." Minn. R. Evid. 702. "The
competency of an expert witness to provide [an expert] opinion depends upon both the
degree of the witness's scientific knowledge and the extent of the witness's practical
experience with the subject of the offered opinion." Gross v. Victoria Station Farms, Inc.,
578 N.W.2d 757, 761 (Minn. 1998). Minnesota courts typically have been "liberal" in
qualifying experts by virtue of their experience. State v. Moore, 458 N.W.2d 90, 96 (Minn.
1990).
In a pre-trial ruling, the district court granted the state's request to admit expert
testimony on "the nature of counterintuitive victim behaviors and delayed reporting." At
trial, Zephier's trial attorney objected during the direct examination of Staab-Absher to a
lack of foundation and was allowed to conduct a voir dire examination. The district court
then ruled that Staab-Absher was qualified to give expert testimony concerning
"counterintuitive victim behavior with a specific focus on delayed reporting." In its
subsequent order denying post-conviction relief, the court stated that Staab-Absher has a
bachelor's degree in social work and women's studies, had 20 years of experience working
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with victims of domestic violence and sexual assault, had conducted over 500 hours of
training on domestic and sexual assaults, and had testified as an expert in previous criminal
trials.
Zephier contends on appeal that Staab-Absher should not have been qualified as an
expert because her employment has been primarily administrative in nature, she has not
conducted research on victims of sexual assault, she does not have an advanced degree, her
publications are not focused on delayed reporting of sexual assault victims, and her work
has not focused specifically on juveniles. The record reflects, however, that Staab-Absher,
through her work, has had "direct contact" with victims of domestic violence and sexual
assault. Staab-Absher testified to her professional experience in working with victims of
sexual assault who delayed reporting, and she testified that she was trained to recognize
the behaviors of victims who delay reporting. In light of Staab-Absher's experience, the
district court did not abuse its discretion in finding that she was qualified to give expert
testimony concerning the tendency of sexual-assault victims to delay their reports of sexual
assaults. See Poppler v. Wright Hennepin Coop. Elec. Ass 'n, 834 N.W.2d 527, 538-40
(Minn. App. 2013) ( affirming qualification of electrician as expert on effects of stray
voltage on dairy cattle), aff'd on other grounds, 845 N.W.2d 168 (Minn. 2014).
Zephier also contends that the state did not lay an adequate foundation for Staab­
Absher' s expert opinion. Zephier does not develop this argument by explaining the
foundation that is necessary or otherwise explaining why the foundation is inadequate.
Zephier complains that the state did not make a proper pre-trial disclosure of the bases of
Staab-Absher' s expert opinion. But that is a discovery issue, for which Zephier does not
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seek relief on appeal. Given the argument presented, we have no reason to conclude that
the district court abused its discretion in ruling that the state laid a foundation for Staab­
Absher' s expert opinion.
Thus, the district court did not err by admitting Staab-Absher's expert testimony.
III. Claims of Prosecutorial Misconduct
Zephier argues that the prosecutor engaged in misconduct on three occasions.
The right to due process oflaw includes the right to a fair trial. Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 611 (Minn. App.
2007), rev. denied (Minn. June 19, 2007). "Prosecutors have an affirmative obligation to
ensure that a defendant receives a fair trial." State v. Henderson, 620 N.W.2d 688, 701-02
(Minn. 2001). Consequently, prosecutorial misconduct may deny the defendant his right
to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).
There is no dispute in this case that Zephier did not object to the conduct that he
challenges on appeal. Accordingly, we apply the "modified plain-error test." State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under the modified plain-error
test, an appellant initially must establish that there is an error and that the error is plain.
Ramey, 721 N.W.2d at 302. An error is plain if it "contravenes case law, a rule, or a
standard of conduct." Id. If there is a plain error, the burden shifts to the state, which must
show that the plain error did not affect the appellant's substantial rights, i.e., "that there is
no reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury." Id. (quotation omitted). "If the state fails to
demonstrate that substantial rights were not affected, 'the appellate court then assesses
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whether it should address the error to ensure fairness and the integrity of the judicial
proceedings."' State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quoting State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998)). 2
Zephier first argues that the prosecutor engaged in misconduct during voir dire by
asking all prospective jurors the following question: "After a person is raped, what kind of
emotions do you think may be running through their mind?" Zephier contends that the
prosecutor improperly asked jurors to put themselves in B .H.' s shoes and encouraged the
jury to make decisions based on sympathy rather than facts. Zephier cites State v. Bradford,
618 N.W.2d 782 (Minn. 2000), and Rairdon v. State, 557 N.W.2d 318 (Minn. 1996),
respectively, in support of these arguments. But in each of those opinions, the supreme
court did not find that the same type of prosecutorial misconduct alleged in this case had
occurred, and the conduct in those cases was more serious than in this case. See Bradford,
618 N.W.2d at 799-800; Rairdon, 557 N.W.2d at 322-24. Because the prosecutor's
conduct did not plainly contravene a law, rule, or standard of conduct, the prosecutor did
not plainly engage in misconduct. See Ramey, 721 N.W.2d at 302.
2 After briefing, the state moved to strike from Zephier' s reply brief an argument
concerning the fourth requirement of the modified plain-error test. "The reply brief must
be confined to new matter raised in the brief of the respondent." Minn. R. Civ. App. P.
128.02, subd. 3. In his principal brief, Zephier discussed the first, second, and third
requirements of the modified plain-error test but not the fourth. But Zephier' s argument
was sufficient to put the state on notice that all requirements of the modified plain-error
test might be relevant. The state referred to the fourth requirement in its responsive brief.
Zephier did not thereafter make a new argument for reversal that had not been made in his
principal brief or that was not in direct response to the state's responsive brief. In any
event, the issue is moot because we conclude below that Zephier cannot satisfy the first,
second, and third requirements of the modified plain-error test with respect to any alleged
instance of prosecutorial misconduct. Thus, the state's motion to strike is denied.
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Zephier next argues that the prosecutor engaged in misconduct in her opening
statement by stating as follows:
Most nine-year-old girls play with Barbie dolls, love ponies,
and want to be ballerinas. Most nine-year-old girls still believe
there's a chance they'll become a princess someday. They are
trusting spontaneous, carefree, and imaginative. . . . Late
summer means school is just around the corner for most kids.
Kiddos are excited to go back to school. They're excited to see
friends and teachers. Start sports and show off their new
clothing and their new school supplies.
Zephier contends that this statement was an attempt to inflame the passions and prejudices
of the jury. Zephier cites State v. Jackson, 714 N.W.2d 681 (Minn. 2006), in support of
this argument. But in that case, the supreme court did not find that the prosecutor engaged
in misconduct, and the conduct in that case was more serious than the conduct in this case.
Id. at 693-96. Again, because the prosecutor's conduct did not plainly contravene a law,
rule, or standard of conduct, the prosecutor did not plainly engage in misconduct. See
Ramey, 721 N.W.2d at 302.
Zephier last argues that the prosecutor engaged in misconduct in her closing
argument by making the following statement:
I want you to take a moment to recall a sexual experience of
your own. Now, imagine having to walk into a room full of
strangers and retell those strangers about this encounter? Now,
imagine that you were not a willing participant in that
encounter, and you had to tell this story to this same group of
strangers. Now, imagine when you are telling your story the
person who raped you is sitting across from you. That was
[B .H.' s] experience yesterday.
Zephier contends that the prosecutor made an argument that was not based on the evidence,
asked jurors to put themselves in B .H. 's place, and encouraged jurors to render a verdict
12
based on sympathy. The state concedes that the prosecutor plainly engaged in misconduct.
The state contends, however, that the prosecutorial misconduct did not affect Zephier's
substantial rights. As noted above, the state bears the burden of showing that the
prosecutorial misconduct did not affect the appellant's substantial rights, i.e., "that there is
no reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury." Ramey, 721 N.W.2d at 302 (quotation
omitted).
The state charged Zephier with two counts of first-degree criminal sexual conduct,
in violation of Minn. Stat. §§ 609.342, subd. l(a), (h)(i). At trial, the parties were focused
in a general way on whether Zephier engaged in the conduct that had been alleged. B .H.
testified that Zephier did so. B.H. 's testimony was corroborated by the video-recording
and transcript of the forensic interview. The state introduced evidence that Zephier
engaged in similar criminal sexual conduct toward young female cousins on two prior
occasions. Zephier's defense, as reflected in his attorney's closing argument, was that B.H.
was not credible, particularly because of the nearly eight-year delay between the alleged
incident and her report. In anticipation of that defense, the state elicited testimony from
B.H. that she delayed reporting the alleged assault because Zephier threatened to hurt her
or her family. In addition, the state introduced expert testimony that delayed reporting by
victims of sexual assault is common. In light of this evidence, the state had a very strong
case against Zephier. Accordingly, we conclude that the prosecutorial misconduct that is
conceded by the state did not affect Zephier's substantial rights.
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Zephier also argues, in the alternative, that even if none of the instances of alleged
prosecutorial misconduct discussed above independently requires a new trial, their
cumulative effect requires a new trial. "Cumulative error exists when the cumulative effect
of the errors and indiscretions, none of which alone might have been enough to tip the
scales, operate to the defendant's prejudice by producing a biased jury." State v. Penkaty,
708 N.W.2d 185, 200 (Minn. 2006) (quotation omitted). In other words, if an appellant
establishes that a district court committed two or more procedural errors, none of which
individually requires a new trial, the appellant nonetheless may be entitled to a new trial
"if the errors, when taken cumulatively, had the effect of denying appellant a fair trial."
Jackson, 714 N.W.2d at 698 (quotation omitted). We have concluded, however, that there
was only one instance of prosecutorial misconduct. Because there is only one error, not
multiple errors, the cumulative-error doctrine does not apply.
Thus, Zephier is not entitled to reversal of his conviction and a new trial on the
ground of prosecutorial misconduct.
IV. Assistance of Counsel
Zephier argues that the post-conviction court erred by denying his post-conviction
petition without conducting an evidentiary hearing. In his petition, he alleged that he
received ineffective assistance of counsel from his trial attorney for five reasons. On
appeal, he continues to pursue his ineffectiveness claim with respect to only one alleged
deficiency by his trial attorney: the attorney's decision to not cross-examine B.H. Zephier
asks this court to reverse and remand for an evidentiary hearing on that claim.
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A post-conviction petition "shall contain ... a statement of the facts and the grounds
upon which the petition is based and the relief desired." Minn. Stat. § 590.02, subd. 1(1)
(2020). "[T]he burden of proof of the facts alleged in the petition shall be upon the
petitioner to establish the facts by a fair preponderance of the evidence." Minn. Stat.
§ 590.04, subd. 3 (2020). A post-con viction court, in its discretion, "may receive evidence
in the form of affidavit, deposition, or oral testimony." Id. A district court may deny a
petition for post-conviction relief without an evidentiary hearing if "the files and records
of the proceeding conclusively show that the petitioner is entitled to no relief." Id., subd. 1.
We apply an abuse-of-d iscretion standard of review to a post-conviction court's decision
to deny a post-conviction petition without an evidentiary hearing. Andersen v. State, 913
N.W.2d 417,422 (Minn. 201 8).
The need for an evidentiary hearing depends on the substantive law underlying
Zephier's post-conviction claims. "In all criminal prosecutions, the accused shall enjoy
the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI;
see also Minn. Const. art. I, § 6. The existence of a right to counsel implies a "right to the
effective assistance of counsel." Strickland v. Washington, 46 6 U.S. 668, 68 6 (1984)
( quotation omitted). To prevail on an ineffective-ass istance-of-counsel claim, a defendant
must satisfy two requirements:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the "counsel "
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's
15
Id. at 687.
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
In this case, the post-conviction court considered only the first requirement of the
two-part Strickland test: whether Zephier's trial attorney's performance fell below an
objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. The objective
standard is defined as "representation by an attorney exercising the customary skills and
diligence that a reasonably competent attorney would perform under similar
circumstances." Opsahl v. State, 677 N.W.2d 414,421 (Minn. 2004) (quotation omitted).
The post-conviction court rejected Zephier' s ineffectiveness claim by referring to caselaw
that states that courts "generally do not review ineffective assistance of counsel claims
based on trial strategy." See Francis v. State, 781 N.W.2d 892, 898 (Minn. 2010). The
post-conviction court reasoned as follows:
Giving trial counsel's decision -making the required
deference, and avoiding the temptation [to] evaluate this issue
through the lens of hindsight, trial counsel was faced with the
difficult prospect of cross-examining the victim, a seventeen­
year-old girl, who was emotional, crying during her testimony,
and struggling to speak. Had counsel attempted to cross
examine her, he risked the impression of attacking her and
creating sympathy for her-which could have negatively
affected Petitioner's defense. Similarly, if questioned, the
victim's testimony would likely been very similar to testimony
given on direct, giving the jury another opportunity to hear
what trial counsel described as difficult and emotional
testimony. Given these concerns, trial counsel had strategic
reasons not to cross examine the victim. Courts do not review
ineffective assistance of counsel claims that are based on these
types of trial strategy decisions. Accordingly, Petitioner's
argument that trial counsel's decision to not cross examine the
victim does not rise to the level of ineffective assistance.
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Zephier contends that the absence of any cross-examination ofB.H. could not have
been a strategic decision. He further contends that, without an evidentiary hearing, there
is nothing in the record to support the post-conviction court's determination that his trial
attorney did not cross-examine B .H. based on a deliberate, strategic decision. In essence,
he contends that a court may not presume that a defendant's trial attorney had strategic
reasons for not conducting a cross-examination of a state's witness.
In Francis, the appellant argued in a post-conviction proceeding that his trial
attorney was ineffective because he was unprepared for trial, did not call alibi witnesses,
and did not cross-examine the state's expert witness. 781 N.W.2d at 897. The supreme
court reasoned, "There is 'a strong presumption that a counsel's performance falls within
the wide range of reasonable professional assistance."' Id. at 898 ( quoting State v. Jones,
392 N.W.2d 224, 236 (Minn. 1986)). The supreme court added, "We generally do not
review ineffective assistance of counsel claims based on trial strategy." Id. The post­
conviction court had denied the petition without conducting an evidentiary hearing, and the
supreme court affirmed. Id. at 894, 897-98. Zephier's argument is inconsistent with the
supreme court's opinion in Francis. Furthermore, the post-conviction court's reliance on
the "strong presumption" stated in Francis was infonned by the judge's experience of
presiding over Zephier's trial and his observation and recollection ofB.H.'s testimony.
Zephier contends further that the post-conviction court erred by not construing his
petition in the most favorable light. The supreme court has stated, "In determining whether
an evidentiary hearing is required, a postconviction court considers the facts alleged in the
17
petition as true and construes them in the light most favorable to the petitioner." Andersen,
913 N.W.2d at 422-23 (quotation omitted). But the supreme court also has stated, "An
evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to
entitle him to the relief requested." Francis, 781 N.W.2d at 896. In this case, there is no
allegation in Zephier' s post-conviction petition that his trial attorney did not have a
strategic reason for not cross-examining B.H. The relevant part of the petition states simply
that B.H. testified and that Zephier's trial attorney "did not cross-examine her." Another
part of Zephier's petition alleges in a conclusory way that his trial attorney was ineffective
on the ground that he "failed to cross-examine the complaining witness." But a court is
not required to assume the truth of a pleading's legal conclusions. See Halva v. Minnesota
State Calls. & Univs., 953 N.W.2d 496, 501 (Minn. 2021); Hebert v. City of Fifty Lakes,
744 N.W.2d 226, 235 (Minn. 2008).
Thus, the post-conviction court did not err by denying Zephier' s post-conviction
petition without an evidentiary hearing.
Affirmed; motion denied.
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