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This opinion is nonprecedential except as provided by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
A21-1553

State of Minnesota,
Respondent,

vs.

Abdulahi Dahir Salad,
Appellant.

Filed November 21, 2022
Affirmed
Klaphake, Judge*

Dakota County District Court
File No. 19HA-CR-19-1164

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

Kathryn M. Keena, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Klaphake,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KLAPHAKE, Judge
On direct appeal from his conviction of first -degree criminal sexual conduct and
following a stay of the appeal and remand to the district court for postconviction
proceedings, appellant argues that (1) the evidence was insufficient to sustain his
conviction; (2) his waiver of his right not to testify on his own behalf was not knowing and
voluntary; (3) he was denied the effective assistance of counsel; and (4) the district court
abused its discretion by summarily denying his petition for postconviction relief. We
affirm.
DECISION
Ordinarily, we review the denial of a postconviction petition for an abuse of
discretion. Reed v. State, 925 N.W.2d 11, 18 (Minn. 2019). But when, as here, “a
defendant initially files a direct appeal and then moves for a stay to pursue postconviction
relief, we review the postconviction court’s decisions using the same standard that we
apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012).
I.
Appellant Abdulahi Dahir Salad argues that the evidence was insufficient to sustain
the jury’s verdict. In reviewing such an argument, this court reviews the evidence in the
light most favorable to the verdict “to determine whether the facts in the record 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. Hanson, 800 N.W.2d 618, 621 (Minn. 2011) (quotation omitted). We
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will not disturb the jury’s verdict if the jury acted with “due regard for the presumption of
innocence and for the necessity of overcoming it by proof beyond a reasonable doubt” and
could “reasonably conclude that [the] defendant was proven guilty of the offense
charged.” Id. (quotation omitted).
Salad was convicted of first- degree criminal sexual conduct under Minn. Stat.
§ 609.342, subd. 1(g) (2018), after he sexually assaulted his then-wife’s 14-year-old sister,
I.S. The statute requires proof of sexual penetration of a victim under the age of 16 and a
significant relationship between the victim and the perpetrator. Id. “Sexual penetration”
includes “sexual intercourse, cunnilingus, fellatio” and “any intrusion however slight into
the genital or anal openings . . . of the complainant’s body by any part of the actor’s body
or any object used by the actor for this purpose” without the complainant’s consent. Minn.
Stat. § 609.341, subd. 12 (2018). Cunnilingus constitutes sexual penetration if there is
“contact between the female genital opening of one person and the mouth, tongue, or lips
of another person, however slight.” State v. Blom, 358 N.W.2d 63, 64 (Minn. 1984)
(quotation omitted).
Salad argues that the evidence adduced at trial was insufficient to sustain the jury’s
finding of guilt “because all of the evidence relating to penetration was uncertain or
contradictory.” But penetration of the vagina is not required for the act of cunnilingus. Id.
Here, I.S. testified at trial that Salad pulled down her pants and put “his mouth on [her]
vagina.” And when asked to clarify if Salad’s mouth was “on the outside or inside or both
of [her] vagina,” I.S. stated, “I believe both.” Moreover, I.S. reported to the nurse who
performed the sexual-assault examination that Salad’s mouth touched her vagina. And I.S.
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told a county social worker that Salad’s mouth was touching the “inside” of her vagina.
I.S.’s trial testimony and out-of-court statements to the nurse and social worker, along with
evidence of I.S.’s reports to the nurse and social worker, are enough to prove the element
of sexual penetration. The jury found the state’s evidence relating to sexual penetration to
be credible, and we defer to the jury’s credibility determination. See State v. Barshaw, 879
N.W.2d 356, 363 (Minn. 2016) (stating that an appellate court defers to the jury because
the jury is “generally in the best position to weigh the credibility of the evidence and thus
determine which witnesses to believe and how much weight to give their testimony”
(quotation omitted)). Accordingly, the evidence was sufficient to sustain the jury’s guilty
verdict.
II.
Salad also contends that the waiver of his right to testify was not knowing and
voluntary. A criminal defendant has a constitutional and a statutory right to testify. U.S.
Const. amend. XIV, § 1; Minn. Const. art. 1, § 7; Minn. Stat. § 611.11 (2020); see State v.
Ihnot, 575 N.W.2d 581, 587 (Minn. 1998) (stating that right to testify is protected by the
Fourteenth Amendment of the United States Constitution and Minnesota state law). “[T]he
right to testify in one’s own defense is a personal right which counsel does not have the
ultimate authority to waive.” State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979). A
defendant’s personal waiver of the right to testify “should be voluntary and knowing.”
State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). The defendant bears the burden of
proving that the waiver of his right to testify was not voluntary and knowing. Id. If trial
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counsel denies a defendant’s right to testify, a new trial must be granted “regardless of the
probable result in a subsequent proceeding.” Id. at 750.
After the state rested, a bench conference was held at which Salad’s trial counsel
indicated that he needed some time to speak with Salad about “what he wants to do moving
forward.” The following colloquy then occurred on the record:
Trial counsel: Mr. Salad, we are at the portion of this jury trial
where if you were going to testify, it would happen next. Do
you understand that?

Salad: Yes.

Trial counsel: And you have a constitutional right that allows
you to testify if you so choose. Do you understand?

Salad: Yes.

Trial counsel: And to testify in a case like this means that the
judge can’t stop it, the prosecutors can’t stop it, I can’t stop it,
I can’t tell you that, I’m sorry, you can’t, shouldn’t, won’t,
whatever. In the end the decision is yours and yours alone. Do
you understand that?

Salad: Yes.

Trial counsel: And, in fact, you’re the one who has to make
the decision whether or not you choose to testify in this case.
Does that all make sense to you?

Salad: Yes.

Trial counsel: And you’re clear about where we are today and
what is happening today, and you’re of sound mind and know
what you’re doing?

Salad: Yes.

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Trial counsel: What is your choice today? Do you choose to
testify or do you choose to retain your presumption of
innocence and stay silent?

Salad: That was a lot of words.

Trial counsel: Okay. Let me say it again. Do you want to
testify or not?

Salad: No.

Salad argues that this exchange shows that his waiver of his right to testify was
invalid because his “response, ‘that was a lot of words,’ indicates he was not understanding
the nuances of [his] rights.” Salad also argues that trial counsel’s reference to the
“presumption of innocence” compounded his confusion by indicating that testifying on
one’s own behalf means giving up the right to a presumption of innocence. We disagree.
The record reflects that trial counsel asked for a recess to confer with his client about
his right to testify and then clearly explained to Salad that he has a right to testify, that he
was “the one who has to make the decision,” and that no one could prevent him from
testifying. Moreover, when Salad indicated some confusion, trial counsel again asked if
Salad wanted to testify, and Salad unambiguously replied, “No.” Although trial counsel’s
statement, “Do you choose to testify or do you choose to retain your presumption of
innocence and stay silent?” is troubling because it indicates that Salad would forgo the
presumption of innocence by testifying, there is no indication that Salad was confused by
the statement. Instead, in his affidavit in support of his postconviction petition, Salad
claimed that he received erroneous advice on the right-to -testify issue because it was a
“‘he-said-she-said’ case” in which credibility was the key issue. He did not claim that he
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was confused about whether he would forgo the presumption of innocence by testifying.
Because there is no indication that Salad was confused about the presumption of innocence,
and because he clearly waived his right to testify, Salad cannot meet his burden to show
that his waiver of his right to testify was not knowing and voluntary.
III.
Salad argues that he was denied the effective assistance of counsel because his trial
counsel (A) failed to adequately investigate his case; (B) failed to call a crucial witness;
(C) failed to question the DNA evidence; (D) failed to disclose evidence to Salad; and
(E) advised him not to testify. Because an ineffective-assistance-of-counsel claim presents
mixed questions of law and fact, a de novo standard of review applies. State v. Rhodes ,
657 N.W.2d 823, 842 (Minn. 2003).
Criminal defendants have a constitutional right to the assistance of counsel. U.S.
Const. amend. VI; see also Minn. Const. art. I, § 6. This right is the “right to the effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). We analyze
ineffective-assistance-of-counsel claims under a two-prong test set forth in Strickland.
State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). To prevail on such a claim,
Salad must demonstrate that (1) “‘counsel’s performance fell below an objective standard
of reasonableness’” and (2) there is “a reasonable probability that, but for counsel’s errors,
‘the result of the proceedings would have been different.’” Peltier v. State, 946 N.W.2d
369, 372 (Minn. 2020) (quoting Davis v. State, 784 N.W.2d 387, 390 (Minn. 2010)). We
need not address both prongs of the test if one prong is determinative. Id.
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Under the first prong, appellant must show that counsel’s “representation fell below
an objective standard of reasonableness.” Strickland, 466 U.S. at 688. An objective
standard of reasonableness is the level of “the customary skills 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 presumption that counsel’s
performance was reasonable.” Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
A. Alleged failure to investigate
Salad asserts that there is a deep hatred by older generations of Ethiopians toward
Somali people. He contends that, because he is Somali and the victim and her family are
Ethiopian, his trial counsel should have investigated the cultural antipathy between Salad
and the victim’s family, and the role that may have played in the allegations. Salad argues
that his trial counsel’s failure to conduct such an investigation amounts to ineffective
assistance of counsel.
“The extent of counsel’s investigation is considered a part of trial strategy,” which
we generally do not review. Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004). But it
is true that “a failure to investigate a potential defense may constitute ineffective assistance
if it results not from counsel’s considered choice but rather from inattention or neglect.”
Swaney, 882 N.W.2d at 218. When determining whether an alleged failure to investigate
constitutes ineffective assistance of counsel, this court considers whether the decision was
based on trial strategy or whether it demonstrates that counsel’s performance fell below an
objective standard of reasonableness. Williams v. State, 764 N.W.2d 21, 31 (Minn. 2009).
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We give trial counsel “wide latitude to determine the best strategy for the client.” State v.
Nicks, 831 N.W.2d 493, 506 (Minn. 2013).
Here, Salad fails to explain what “investigation” his trial counsel should have
performed. Instead, he argues that his trial counsel, who was aware of this alleged conflict,
was ineffective by not asserting the alleged cultural conflict as a defense. But trial
counsel’s decision not to assert the alleged cultural conflict as a defense is a strategic
decision that is not reviewable. See State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014)
(“The determination of which defenses to raise represents an attorney’s trial strategy.”).
Moreover, there is no indication that trial counsel’s decision not to pursue the
defense was unreasonable. Salad admitted in his affidavit in support of his postconviction
petition that the animosity between Ethiopians and Somalis is “between the older
generation” and is “not present” in the generations of him and his now ex-wife. And, to
the extent Salad claimed that his now ex-mother-in-law’s hatred toward him was the
driving force behind the sexual-assault allegations, the evidence presented at trial indicated
otherwise. The jury heard testimony that I.S. told both of her sisters about the abuse before
she told her mother. In fact, it was two days after the abuse before I.S. told her mother
about it. Although I.S.’s mother was the individual who reported the abuse to law
enforcement, her response was not indicative of a c ultural conflict, but rather the normal
response of a concerned parent. Thus, Salad cannot demonstrate that counsel was
ineffective by declining to raise a cultural animosity defense.

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B. Failure to call A.A. as a witness
Salad also contends that his trial counsel was ineffective by not calling A.A., a friend
of the victim’s family, as a witness because she would “have impeached the credibility” of
I.S. by testifying that Salad’s now ex-wife told her that I.S. was lying about the abuse. But
trial strategy, including which witnesses to call and what information to present to the jury,
is within counsel’s discretion and not reviewed on appeal. State v. Jones, 392 N.W.2d 224,
236 (Minn. 1986). Moreover, as the state points out, A.A. was not a witness to the incident
and did not speak directly with the victim. And the assertions in her affidavit are based on
hearsay, which would likely be inadmissible at trial, as would be A.A.’s opinion that I.S.
was lying. As such, it was not unreasonable for trial counsel not to call A.A. as a witness.
C. Alleged failure to question the DNA evidence
Salad further argues that his trial counsel was ineffective by failing to consult with
a DNA expert. But again, this argument relates to trial strategy, which is not reviewable.
See id. (stating that trial strategy, including which witnesses to call and what information
to present to the jury, is within counsel’s discretion and not reviewed on appeal).
Moreover, the record reflects that the DNA evidence presented at trial was of limited value.
As the postconviction court found, there was no DNA found on the victim’s genital area.
Rather, the only swab that contained a DNA mixture was taken from the victim’s neck.
Trial counsel cross-examined the state’s witnesses regarding this DNA swab, which
provided the jury with alternative explanations for the DNA being present on the victim’s
neck. Therefore, Salad is unable to demonstrate that trial counsel was ineffective for not
consulting with a DNA expert on this case.
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D. Disclosure of evidence
Salad argues that his trial counsel was “ineffective because he failed to disclose all
the evidence in the case to . . . Salad in a timely manner.” But Salad fails to identify what
the new evidence was. Instead, he simply asserts that trial counsel failed to disclose “new
disclosures from the [s]tate having to do with [I.S.’s] testimony and perhaps some other
matters.” Without more information, Salad is unable to show that his trial counsel’s
performance was unreasonable.
E. Advice not to testify
Salad argues that trial counsel was ineffective because he advised Salad not to
testify. He argues that since this was a “he-said- she-said case,” such advice was
unreasonable. But “it is well settled that advising a client not to testify does not render trial
counsel incompetent.” State v. Alvarez, 820 N.W.2d 601, 627 (Minn. App. 2012), aff’d,
836 N.W.2d 527 (Minn. 2013). And there is nothing in the record demonstrating that it
was unreasonable for trial counsel to advise Salad not to testify. See State v. Armstrong,
163 N.W.2d 67, 69 (Minn. 1968) (“We are not prepared to say that a defendant advised to
remain off the witness stand has been ill served by his attorney. There is nothing in the
record before us to demonstrate that the advice, if given, was without good reason.”).
Accordingly, Salad was not denied the effective assistance of counsel.
IV.
Finally, Salad challenges the summary denial of his postconviction petition. “Upon
filing a petition for postconviction relief, an evidentiary hearing must be held unless the
petition and the files and records of the proceeding conclusively show that the petitioner is
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entitled to no relief.” Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018) (quotation
omitted). “In determining whether an evidentiary hearing is required, a postconviction
court considers the facts alleged in the petition as true and construes them in the light most
favorable to the petitioner.” Brown v. State, 895 N.W.2d 612, 618 (Minn. 2017). This
court reviews the “summary denial of a petition for postconviction relief for an abuse of
discretion.” Andersen, 913 N.W.2d at 422.
“To be entitled to an evidentiary hearing on an ineffective-assistance-of-counsel
claim, an appellant must allege facts that, if proven by a fair preponderance of the evidence,
would satisfy the two-prong test announced in Strickland.” Nissalke v. State, 861 N.W.2d
88, 93 (Minn. 2105) (quotation omitted). But as addressed above, Salad is unable to satisfy
the first prong of the Strickland test. Thus, Salad is unable to show that the postconviction
court abused its discretion by summarily denying his postconviction petition.
Affirmed.