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This opinion is nonprecedential except as provided by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
A20-0844

State of Minnesota,
Respondent,

vs.

Zackary Andrew Brown,
Appellant.

Filed April 26, 2021
Affirmed
Cochran, Judge

Polk County District Court
File No. 60-CR-18-2365

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

Greg Widseth, Polk County Attorney, Clifford Wardlaw, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Shawn L. Autrey, Ward K. Johnson, III (pro hac vice), Johnson & Autrey Law Firm, Grand
Forks, North Dakota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal from judgment of conviction of third-degree criminal sexual
conduct, appellant seeks reversal of his convi ction and a new trial on the basis that he

2
received ineffective assistance of counsel at trial. Because appellant has not demonstrated
ineffective assistance of counsel, we affirm.
FACTS
The State of Minnesota charged appellant Zackary Andrew Brown with third-degree
criminal sexual conduct in viol ation of Minn. Stat . § 609.344, subd. 1(d) (2016), and
fourth-degree criminal sexual conduct in viol ation of Minn. Stat. § 609.345, subd. 1(d)
(2016). The complaint alleged that Brown engaged in sexua l penetration with his ex-
girlfriend, having reason to know that she was physically helpless at the time. According
to the complaint, the allege d conduct occurred sometime in the early morning hours of
January 4, 2018.
The case proceeded to a jury trial. Brown’s ex-girlfriend (the victim) testified that
on the date in question she was living in the same house as Brown, even though their
romantic relationship had ended. She testified that she had been trying to get Brown to
move out of the house for “a while” and “did not want anything to do with him.” In the
days before the incident, the two slept apart: Brown in the bedroom and the victim on the
couch in the living room.
The victim testified that she was home alone the night of the assault and drank
heavily to the point of intoxication while on the living-room couch. She testified that she
spoke on the phone with two different friends before passing out. One of the friends
testified that the victim called him at about 1:00 or 2:00 a.m. He further testified that, about
45 minutes into the call, he heard a noise like a door opening an d a sound of a phone
dropping. He “could hear screaming in the ba ckground.” He also testified to hearing the

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victim say things like “[s]top,” “[d]on’t,” and “[t]hat hurts.” The victim did not remember
this conversation. The victim testified that she awoke the next morning around 8:00 a.m.
naked from the waist down and in bed with Brown.
The victim woke up due to pounding on the front door by a police officer, who was
conducting a welfare check at the request of one of her friends. The victim was still
intoxicated when she awoke, and could not remember the details of the previous night. But
the victim had pain in her kn ees, ribs, and hips. And, when she went to answer the door,
she noticed that the house was in a state of disarray. The officer asked her if she was
“okay.” She indicated that she was, but testified that she was confused and intoxicated at
that time. A couple of hours later, she asked a friend to drive her to a hospital because she
suspected that she had been sexually assaulted.
At the hospital, a nurse conducted a sexual -assault examination. In the course of
the examination, the nurse used a cotton swab to collect DNA evidence from various
locations on the victim’s body including the victim’s vagina and perineal area. The Bureau
of Criminal Apprehension conducted DNA testing on the swabs, which contained seminal
fluid. The results showed that the vagina l swab contained DNA that matched the DNA
from two individuals: the victim and Brown. The perineal swab also contained DNA that
matched Brown’s DNA. In interviews with police conducted before the DNA test results
were available, Brown denied having any sexual contact with the victim on the date of the
incident.
Before trial, Brown’s trial counsel sought to call a doctor as an expert witness to
testify that the semen recove red from the victim could have been from a consensual

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encounter around December 25. The district court did not allow the doctor to testify,
concluding that the doctor was not qualified to testify as proposed. Brown’s counsel did
not identify an alternative expert. Brown’s counsel also did not file a motion any time prior
to trial seeking to present evidence of prior consensual sexual intercourse between Brown
and the victim under Minn. Stat. § 609.347 (2020).
At trial, the state called the forensic scientist from the Bureau of Criminal
Apprehension who had performed the DNA an alysis on the samples recovered from the
victim. The forensic scientist testified that when performing DNA analysis in a
sexual-assault case, the scien tist looks for both the presen ce of sperm heads and the
volume. She testified that the scientifically accepted timeline for the lifespan of sperm in
a woman’s vagina is approximately 120 hours, or five days. She further testified that the
volume of sperm heads recovered is significa nt because that volume naturally decreases
over time. And recovery of a large volume of sperm heads suggests that the sperm heads
were deposited close in time to the examination. The DNA swabs taken during the victim’s
examination recovered a significant volume of sperm heads. Based on the volume, the
forensic scientist testified that the sperm had “definitely” been deposited “within the
120-hour window.” The forensic scientist al so testified that only Brown and the victim
contributed to the DNA that she tested, and that “99.9999999999 percent of the general
population could be excluded” from that DNA sample.
Brown chose to testify at trial. Th e following summarizes his testimony. Brown
lived with the victim on the date of the alleged incident and had lived with her for about a
year and a half before that. His relationshi p with the victim was “rough” in the days

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immediately preceding the incident. Brown worked a night shift on January 2, 2018, and
slept late into the day on January 3, 2018. He woke up around 7:00 p.m. and then went to
a bar to meet friends. When the bar closed, Brown made plans to go to his friend’s house
but first stopped home to pick up a case of b eer from the garage. He then drove to his
friend’s house and remained there overnight. According to Brown, he returned home
around 6:30 or 7:00 a.m. When he arrived, the door was unlocked and the house was in a
state of disarray. Brown saw the victim passed out unconscious on the couch and unclothed
from the waist down. After trying and failing to wake the victim, Brown carried her from
the couch to the bed. He got into the bed as well, but he denied ha ving any contact with
the victim. Brown was “worried” about the victim, but he did not call the police when he
first came home because he wanted to ask th e victim about what had happened before
calling for help. He denied having any sexual contact with the victim on the date in
question or during the preceding 120 hours. He also claimed that the two last had sexual
contact around December 25, 2017, when the two had consensual intercourse.
In its closing argument, the state contende d that “the DNA evidence is all you need
to convict” Brown. The state further argued that Brown’s own testimony proved his guilt
because it was unreasonable for hi m to fail to call the police or take the victim to the
hospital if he believed that she had been assaulte d. But the state thereafter returned to its
argument that “[t]he hard science of this case is the foundation of the case, and there is
nothing, nothing here other than [the] found two DNA samples.”
In his closing argument, Brown’s defense counsel argued that the evidence showed
that the victim was assaulted around 2:00 or 3:00 a.m., wh en Brown was at his friend’s

6
house. Brown’s defense counsel argued that the assault could not have happened when
Brown returned home from the bar to get beer from the garage on the way to his friend’s
house because the victim was aw ake, conscious, and speaking with friends on the phone.
Brown’s defense counsel further contended that the assault could not have happened when
Brown returned home around 6:30 or 7:00 a.m. Counsel argued that the victim would have
woken up if Brown tried to have sexual contac t with her at that time, given that she was
able to wake up around 8:00 a.m.
The jury found Brown guilty of both third-degree and fourth-degree criminal sexual
conduct. The district court subsequently convicted Brown of third-degree criminal sexual
conduct and vacated his fourth -degree criminal sexual con duct charge. This appeal
follows.
DECISION
The United States and Minnesota Constitu tions guarantee the right to counsel in
criminal trials. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The right to counsel
includes the right to the effe ctive assistance of counsel. Strickland v. Washington ,
466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Taylor v. State , 887 N.W.2d 821,
823 (Minn. 2016).
Brown argues that he received ineffectiv e assistance of counsel because his trial
counsel (1) conceded hi s guilt, (2) failed to impeach the victim, (3) failed to properly
“vet[]” his anticipated expert witness, an d (4) failed to bring a motion under Minn.
Stat. § 609.347, subd. 3(b), to admit eviden ce of prior consensual sexual intercourse

7
between Brown and the victim. In a direct appeal, we review a claim of ineffective
assistance of counsel de novo. Taylor, 887 N.W.2d at 823.
We apply the two-prong standard set forth in Strickland to determine whether a
claim of ineffective assistance of counsel requires reversal. The first prong relates to
counsel’s performance and the second pron g examines whether the defendant was
prejudiced. Strickland, 446 U.S. at 687, 104 S. Ct. at 2064; State v. Rhodes ,
657 N.W.2d 823, 842 (Minn. 2003).
Under the first prong, the defendant must sh ow that “counsel’s representation fell
below an objective standard of reasonableness.” Chavez-Nelson v. State, 948 N.W.2d 665,
671 (Minn. 2020) (quota tion omitted) (applying Strickland). An objective standard of
reasonableness is the level of customary sk ill and diligence that a reasonably competent
attorney would employ under similar circumstances. Leake v. State , 767 N.W.2d 5,
10 (Minn. 2009). There is a “strong presum ption that a counsel’s performance falls
within a wide range of reasonable assistance.” State v. Reek , 942 N.W.2d 148, 166
(Minn. 2020).
Under the second prong, the defendant mu st show “a reasona ble probability” that
the outcome “would have been diffe rent” but for counsel’s errors. Chavez-Nelson,
948 N.W.2d at 671 (quotation omitted). A “reasonable probability” means “a probability
sufficient to undermine conf idence in the outcome.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. Thus, under the prejudice prong, a “defendant must show that counsel’s
errors ‘actually’ had an adverse effect in that but for the errors the result of the proceeding

8
probably would have been different.” Rhodes, 657 N.W.2d at 842 (quotation omitted); see
also Strickland, 446 U.S. at 687, 104 S. Ct. at 2064.
A defendant must satisf y both prongs of the Strickland test to demonstrate that a
new trial is required. State v. Smith, 932 N.W.2d 257, 270 (Minn. 2019). If the appellant
fails to satisfy one prong, this court may dispose of the claim without addressing the other.
Id. at 271. With this standard in mind, we turn to Brown’s arguments.
I. Brown has not shown that his trial counsel conceded Brown’s guilt.

Brown argues that he received ineffectiv e assistance of counsel because his trial
counsel conceded his guilt to the charged offenses. Brown contends that his trial counsel
did so by confirming to the district court that Brown would not be arguing that the alleged
sexual encounter on the date in question was consensual. The state counters that Brown’s
trial counsel did not concede his guilt because consent was not an issue at trial.
Where defense counsel concedes a client’s guilt without the client’s permission,
“counsel’s performance is deficient and prejudice is presumed.” State v. Huisman,
944 N.W.2d 464, 467 (Minn. 2020) (quotation omitted). In such a case, no showing of
prejudice is required because the “decision to admit guilt is the defendant’s decision to
make.” Id. (quotation omitted). But defense counsel does not concede a client’s guilt by
choosing not to contest some, but not all, of the elements of the charged offense. Id. at
468.
In Huisman, which involved two charges of age-related criminal sexual conduct,
defense counsel conceded the following elements : (1) the age of his c lient, (2) the age of
the two victims, and (3) the county in which the offense allegedly occurred. Id. T h e

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supreme court concluded that Huisman’s de fense counsel had not conceded his guilt
because he disputed the element of whether Huisman sexually penetrated the victims. Id.
The supreme court further concluded that Hu isman had not shown error under the usual
Strickland test because his counsel’s “concessi ons about undisputed elements were
patently reasonable.” Id.
Here, the state charged Brown with third-degree and fourth-degree criminal sexual
conduct. To prove that Brow n was guilty of third-degree criminal sexual conduct as
charged, the state had to prove that he (1) engaged in “sexual pene tration” with a person
that he (2) knew or had reason to know was mentally impaired, mentally incapacitated, or
physically helpless at the time. Minn. Stat. § 609.344, subd. 1(d). To prove that Brown
was guilty of fourth-degree criminal sexual conduct as charged, the state had to prove that
he (1) engaged in “sexual contact” with a person that he (2) knew or had reason to know
was mentally impaired, mentally incapacitated, or physically helpless at the time. Minn.
Stat. § 609.345, subd. 1(d). “Sexual penetration” includes “sexual intercourse” performed
“without the complainant’s consent, except in those cases where consent is not a defense.”
Minn. Stat. § 609.341, subd. 12 (2016). “Sexual contact” includes “the intentional
touching by the actor of the complainant’s intimate parts.” Id., subd. 11(a)(i) (2016).
“Physically helpless” means that the victim is “(a) asleep or not conscious, (b) unable to
withhold consent or to withdraw consent because of a physical condition, or (c) unable to
communicate nonconsent and the condition is known or reas onably should have been
known to the actor.” Id., subd. 9 (2016).

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Brown claims that his trial counsel c onceded his guilt to both criminal-sexual-
conduct offenses based on the following excha nge with the district court, which occurred
outside the presence of the jury:
THE COURT: Well, we don’t have consent because your
client isn’t saying he did have relations with her.
COUNSEL: Yeah, he did, December 25.
THE COURT: But not during the incident in question, right?
He’s denying that.
COUNSEL: Right.
THE COURT: So we’re not dealing with a consent case.
COUNSEL: Right.

The above colloquy is fairly analogous to Huisman in terms of the limited nature of the
concession by trial counsel.
Brown argues that his trial counsel conced ed his guilt because he agreed with the
district court that consent was not an issue in this case. But, as the state notes, Brown
denied having any sexual contact with the victim on the night of the alleged incident, both
in interviews with the police an d at trial. Brown’s trial counsel’s defense strategy was to
argue that Brown could not have been the person who assaulted the victim because he was
at a friend’s house during the only window of time when the assault logically could have
happened. As in Huisman, Brown’s trial counsel’s concession was “patently reasonable”
given that any attempt to argue that Brown had consensual sex with the victim on the date
in question would undermine Brown’s own testimony. And Brown’s trial counsel mounted
a vigorous attack against the state’s allega tions regarding critical elements of both
offenses: whether or not Brown sexually penetrated or had sexual contact with the victim
on January 4, 2018.

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Our conclusion that Brown’s trial couns el did not concede his guilt is further
supported by the fact that the jury never heard the exchange between the district court and
trial counsel that Brown now characterizes as a concession of guilt. The discussion
occurred completely outside the presence of the jury. We are aware of no case concluding
that trial counsel conceded the defendant’s guilt based on statements that occurred outside
of the presence of the jury. See, e.g., State v. Luby, 904 N.W.2d 453, 459 (Minn. 2017)
(reversing conviction where defense counsel conceded defendant’s guilt during closing
arguments); Dukes v. State , 621 N.W.2d 246, 255 (Min n. 2001) (remanding to the
postconviction court for further proceedings to determine whether defendant received
ineffective assistance of counsel when his counsel conceded guilt during closing
argument); State v. Wiplinger , 343 N.W.2d 858, 861 (Minn. 1984) (reversing where
defense counsel implied that defendant was guilty during cross-examination of the alleged
victim). Because Brown’s counsel reasonably ag reed with the distri ct court’s statement
that they were “not dealing w ith a consent case,” trial counse l was not ineffective in this
regard. And because Brown has faile d to meet the first prong of the Strickland standard
with regard to this claim, we need not consider the second prong. See Smith, 932 N.W.2d
at 271.

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II. Trial counsel’s alleged failure to impeach the vict im does not constitute
ineffective assistance of counsel.

Brown argues next that his trial coun sel’s performance was deficient because he
failed to impeach the victim’s character for honesty after the prosecution “opened the door”
by asking another witness about the victim’s reputation for truthfulness within the
community. We disagree.
A trial counsel’s decision not to impeach a witness is a matter of trial strategy.
State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001) (explaining that decisions regarding what
evidence to present to the jury, which defenses to raise, and what witnesses to call are
matters of trial strategy). We generally do not “review ineffective assistance of counsel
claims based on trial strategy.” Sanchez-Diaz v. State, 758 N.W.2d 843, 848 (Minn. 2008).
“Our reluctance to scrutinize trial tactics is grounded in the public policy of allowing
counsel to have the fl exibility to represent a client to the fullest extent possible.”
Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (quotation omitted). But we will
examine trial strategy that implicates a defendant’s fundamental right, such as whether to
plead guilty, waive a jury, testify on his or her own behalf, or appeal. Erickson v. State,
725 N.W.2d 532, 536 (Minn. 2007) (citing Jones v. Barnes , 463 U.S. 745, 751,
103 S. Ct. 3308, 3312 (1983)). No such fundamental right is implicated by trial counsel’s
decision not to impeach a witness. See id. Because the decisi on not to impeach the
witness was a tactical decisi on that did not implicate a fundamental right, Brown has
not satisfied the first prong of the Strickland test with regard to this claim. Therefore, we
need not consider whether he was prejudiced as a result. See Smith, 932 N.W.2d at 271.

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II. Brown has not shown that his counsel’ s performance deprived him of an
expert witness who would testify in support of his theory of the case.

Brown further argues that his trial couns el’s performance fell below an objective
standard of reasonableness because his trial counsel failed to call an expert witness. The
record indicates that Brown’s trial counsel located a proposed expert witness, but the
district court concluded that the witness was not qualified to testify as an expert. Brown
argues that his trial counsel’s performan ce fell below an objective standard of
reasonableness because he failed to properly “vet[]” the proposed expert witness. Here
again, Brown has not met his burden under Strickland.
First, Brown has not shown that the exclusion of his proposed expert was a result of
trial counsel’s failure to “vet” the witness. The record does not c ontain any evidence of
“vetting,” or lack thereof, on the part of Brown’s trial counsel.1 Nor is there any evidence
regarding the type of “vetting” that is nece ssary for trial counsel to meet an objective
standard of reasonableness. As a result, Brown has failed to demonstrate that the exclusion
of his proposed expert was the result of representation that fell below an objective standard
of reasonableness.
Even assuming that Brown could make such a showing, to prevail he must also show
that he was prejudiced as a result. To do so, he bears an affirmative burden to show that a
reasonable attorney could have found a qualified expert to testify to his theory of the case

1 We note that Brown did not or der the transcript of the proc eeding in which the district
court ruled that his proposed expe rt witness would not be allowe d to testify. As a result,
the record before us fails to reveal the underlying basis for the district court’s conclusion
that Brown’s proposed expert was not qualified to testify.

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and that the witness’s testimony probab ly would have made a difference. See
Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987) (holding that appellant had not
demonstrated prejudice where he alleged that trial counsel should have investigated further
to locate additional witnesses but did not show the existence of a witness whose testimony
would have benefited him). Brown has not met this burden. He has not identified any
qualified expert who woul d have testified in support of his theory of the case—namely,
that the sperm in the samples taken from the victim on January 4 could be from a
consensual sexual encounter that happened a pproximately ten days earlier. Without
identification of such an expert, there is no basis to conclude that the exclusion of Brown’s
expert had any effect on the outcome of the tr ial. As a result, Brown has not shown “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 561 (quoting Strickland, 466 U.S. at 694,
104 S. Ct. at 2068). Consequently, Brown has failed to meet the Strickland standard with
regard to trial counsel’s efforts to present an expert witness.
IV. Brown has not shown ineffective assi stance of counsel resulting from the
absence of a motion under Minn. Stat. § 609.347.

Brown also argues that his trial counsel ’s performance fell below an objective
standard of reasonableness because his tria l counsel did not file a motion under Minn.
Stat. § 609.347 to introduce evidence of prev ious consensual intercourse between Brown
and the victim to explain the state’s DNA evidence.2 The state argues that Brown has not

2 Brown’s ability to introduce evidence of the victim’s prio r sexual activity to show the
source of the semen also implicates Minnesota Rule of Evidence 412. In his brief, Brown
refers to both rule 412 and s ection 609.347. But because ru le 412 is “superseded to the

15
shown prejudice because the dist rict court would not have ad mitted the evidence even if
his trial counsel had filed a section 609.347 motion. We agree that Brown has not
demonstrated prejudice.
In a criminal-sexual-conduct prosecution, “evidence of the victim’s previous sexual
conduct shall not be admitted nor shall any reference to su ch conduct be made in the
presence of the jury,” unless an enumerated exception applies and “the probative value of
the evidence is not substantially outweighed by its inflammatory or prejudicial nature.”
State v. Wenthe , 865 N.W.2d 293, 306 (Minn. 2015) (quoting Minn. Stat. § 609.347,
subd. 3). One such exception provides that the defense may introduce “evidence of specific
instances of the victim’s previous sexual conduct” where “the prosecution’s case includes
evidence of semen.” Minn. Stat . § 609.347, subd. 3(b). In su ch a case, the evidence is
admissible “solely to show the source of the semen.” Id. “The accused may not offer
evidence described in subdivision 3” except by making a motion at least three business
days before trial. Id., subd. 4. This law, known as the rape-shield law, “serves to emphasize
the general irrelevance of a victim’s sexual history, not to remove relevant evidence from
the jury’s consideration.” Wenthe, 865 N.W.2d at 306 (quotation omitted).
Here, the prosecution’s case included evid ence that Brown’s semen was recovered
from the victim’s vagina. Brown’s trial couns el wanted to introduce evidence of prior
consensual relations between Brown and the vi ctim to “show the source of the semen.”

extent of its conflict with” section 609.347, we confine our analysis to whether Brown’s
trial counsel was ineffective for failure to bring a motion under section 609.347. Minn.
Stat. § 609.347, subd. 7.

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Minn. Stat. § 609.347, subd. 3(b) . Because the evidence fell into one of the enumerated
exceptions, it would be admissible if the district court concluded that “the probative value
of the evidence [was] not subs tantially outweighed by its inflammatory or prejudicial
nature.” Id., subd. 3. To seek admission of this evidence, Brown’s trial counsel was
required to move for admission of the evidence at least three days before trial. Id., subd. 4.
Brown’s counsel made no such motion.
Assuming, without deciding, that Brow n has shown that his trial counsel’s
performance fell below an objective standard of reasonableness by failing to make such a
motion before trial, Brown has not demonstrated that the probable result of his trial would
have been different. At tria l, Brown’s counsel made essentially the same motion and the
district court heard the motion. Trial counsel asked the court “to allow the evidence of the
voluntary sexual interaction between the de fendant and [the victim] on or about
December 25.” Trial counsel wanted to introduce the evidence to explain the recovery of
Brown’s sperm from the victim during the sexual-assault examination on January 4, 2018.
The district court went through the rape-s hield law analysis and concluded that the
evidence was not admissible.
The district court excluded the evidence because there was no scientific evidence to
support that sperm could remain aliv e from December 25 through January 4—
approximately ten days. The only expert testim ony at trial regarding the ability to detect
sperm recovered during a sexual-assault examin ation placed the outer limit at 120 hours
(or five days). As a result, the court found that “the only purpose [the evidence] would
serve would be to muddy the wa ter, so to speak, because yo u don’t have a causal link.”

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Thus, the evidence that Brown’s trial counsel sought to admit regarding a consensual
sexual encounter around Christmas would not have been admitted even if trial counsel had
noticed it under Minn. Stat. § 609.347. Because Brown has not shown prejudice from his
claim that his trial counsel was ineffective for failing to bring a pretrial motion under Minn.
Stat. § 609.347, this argument fails the second prong of the Strickland analysis.
In sum, Brown is not entitled to a new tria l on the basis of ineffective assistance of
trial counsel because he has not satisfied the Strickland standard for any of his alleged
claims.
Affirmed.