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This opinion is nonprecedential except as provided by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
A22-0387

State of Minnesota,
Respondent,

vs.

Douglas Allan Treu,
Appellant.

Filed February 6, 2023
Affirmed
Reilly, Judge

Wabasha County District Court
File No. 79-CR-19-1081

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

Karen S. Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assist ant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Bjorkman, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for first-degree assault, arguing that the district
court denied him his right to present a complete defense by its erroneous evidentiary
2
rulings, the district court erred in denying his request for a continuance, and he was denied
effective assistance of counsel. We affirm.
FACTS
On December 3, 2019, an officer responded around midnight to a call for emergency
services and report of a knife attack at an apartment building in Wabasha County. At the
scene, the officer discovered D.A.Z. and R.M. with blood on their faces. They informed
the officer that appellant Douglas Allan Treu attacked them. Treu and his wife lived in the
apartment below D.A.Z.’s girlfriend, R.M., who also managed the apartment building.
D.A.Z. informed the officer that Treu attacked him with a box cutter and caused D.A.Z.’s
dog to bite Treu. D.A.Z. had a deep laceration across his face along with lacerations on
his back, arm, and hand . R.M. had a laceration near her eye. Upon entering Treu’s
apartment, the officer found Treu bloody, crying, and with large bite wounds on his calf .
Officers searched the area outside the building where the fight occurred and discovered a
box cutter in the grass. Respondent State of Minnesota charged Treu with first-degree and
second-degree assault with a dangerous weapon. Treu pleaded not guilty and claimed self-
defense.
Pretrial Continuances
Before trial, defense counsel made multiple trial continuance requests. During a
pretrial hearing on May 17, 2021, defense counsel informed the district court that both
parties were unprepared to try the case set for June 7 and asked the district court to schedule
the case for trial in September to “get experts, line them up, and have everything all
prepared to go.” The district court set a pretrial hearing for July 21. After more pretrial
3
hearings, the district court set the case for trial on September 13 at the request of both
parties.
On September 13, Treu did not appear for trial on the instruction of defense counsel
because Treu was ill and awaiting the results of a COVID -19 test. Defense couns el
requested that the case be continued to October, stating that he was “not prepared to try
Treu this week.” The state made a speedy trial demand based on the victim’s request. The
district court scheduled the trial for October 4.
On September 28, defense counsel moved the court for a trial continuance and
requested that the matter be tried in December. Defense counsel cited several reasons that
supported a continuance, including defense counsel’s inability to prepare with Treu while
he was ill1, defense counsel’s unfinished subpoena and funding request to retain the doctor
who treated Treu’s injuries as a testifying witness, and defense counsel’s unfinished
investigation into the facts of the case. The district court granted defense counsel’s
continuance request. In response, the state moved to remove the district court judge from
the case for violating the state’s speedy trial demand and continuing the case absent a
finding of good cause. At the removal hearing before the district’s chief judge on O ctober
18, the state withdrew its motion and the chief judge set the matter for trial starting
November 1.

1 Treu ultimately did not test positive for COVID -19, but defense counsel asserted that the
severity of Treu’s illness prevented his defense team from meeting with Treu to prepare
for trial.
4
On October 25, defense counsel moved the district court to continue the trial to
January based on a late disclosure by the state . The state had informed Treu that D.A.Z.’s
dog was euthanized as a potentially dangerous dog and disclosed incident reports about the
dog’s behavior that dated to the spring of 2020. Defense counsel argued that the dog’s acts
of violence were relevant to Treu’s self -defense claim. The district court denied the
continuance because the state’s unintentional late disclosure would not prejudice Treu by
materially affecting the outcome of the trial.
During a pretrial hearing on October 28, defense counsel once again requested a
continuance stating he felt rushed and “pushing [him] into trial on this case at this point is
in danger of giving Mr. Treu ineffective assistance of counsel.” Defense counsel explained
that he still had subpoenas to send out and an investigation to compl ete. The district court
denied the motion.
Jury Trial
The district court conducted a four-day jury trial and heard testimony from D.A.Z.,
R.M., an officer who responded to the call for emergency services, a doctor who treated
D.A.Z.’s injuries, and Treu. D.A.Z. testified that he was at R.M.’s apartment on December
3, 2019, and went outside the building to smoke a cigarette while he took his dog out. The
dog, a pit bull, was on a retractable leash and standing in the grass away from D.A.Z. when
Treu approached angrily. D.A.Z. testified that Treu confronted D.A.Z. for taking his name
off of the apartment mailbox. D.A.Z. informed Treu that he would be evicted l ater in the
month for failure to pay rent and said he heard Treu was “touching little girls’ butts.” Treu
pushed D.A.Z., then D.A.Z. pushed Treu. D.A.Z. testified that Treu pulled a box cutter
5
out of his right pocket with his right hand and cut D.A.Z.’s face using a downward slicing
motion. D.A.Z. fought back with his fists and eventually put Treu in a headlock, but Treu
managed to stab D.A.Z. in the back with the blade. D.A.Z. testified R.M. emerged from
the building when she heard the fight and Treu attacked R.M., cutting her face. D.A.Z.
noted that the dog then went after Treu and bit him in the back of the leg. He pulled the
dog off Treu and went upstairs to tend to his wounds.
R.M. testified that she heard D.A.Z. and Treu arguing outside about Tre u’s music
being too loud and “touching my girls’ butts.” R.M. stated she saw Treu lunge at D.A.Z.
from her apartment window and she ran outside to find Treu cutting D.A.Z. with what
looked to be a four -inch blade. R.M. screamed and tried to pull Treu off D.A.Z., but Treu
lashed out and cut R.M.’s face. Shortly after, the dog bit Treu’s leg.
Treu testified that on the morning of December 3, 2019, he visited his family’s farm
and used a box cutter to cut nets that wrapped bales of hay. When he returned to his
apartment building later that day, he noticed his mail and nametag w ere on the ground
outside of his apartment mailbox. Treu replaced the nametag. Soon after, he heard D.A.Z.
and R.M. arrive at their apartment and Treu went downstairs to find his name had been
removed from the mailbox once again. Treu testified D.A.Z. came down the apartment
stairway toward him alone, without the dog, and Treu asked if D.A.Z. removed his name
from the mailbox. Treu stated D.A.Z. ranted about evicting Treu and his wife. Treu also
asked D.A.Z. if he loosened the lug nuts on Treu’s car. D.A.Z. affirmed that he did and
pulled Treu off the apartment’s steps and onto the concrete in front of the building. D.A.Z.
grabbed Treu and put him in a headlock while punching him. Treu testified he could not
6
get out of the headlock because he recently had reconstructive surgery on his right shoulder
and his right arm was immobile, having only been out of a sling for 11 days at the time of
the fight. Treu test ified he could not raise his right arm above his head or throw a punch.
Treu stated R.M. emerged from the apartment building with the dog and D.A.Z. ordered
the dog to “kill” while holding Treu in a headlock. The dog bit Treu’s leg repeatedly and
shook a box cutter out of Treu’s pocket, which fell onto the ground and broke a portion of
the blade. Treu pulled D.A.Z. to the ground, picked up the broken blade with his left hand,
and “just did one cut” across D.A.Z.’s face and arm. D.A.Z. released Treu and Treu shook
the dog off of his leg. Then Treu retreated into the apartment building to call the police.
The officer who responded to the call for emergency services testified that Treu told
the officer he confronted D.A.Z. and “ [b]efore he knew it, they were fighting.” Treu
informed the officer that D.A.Z.’s wounds were caused by Treu “swinging with his hands.”
The jury found Treu guilty of first -degree assault using the box cutter as a dangerous
weapon but acquitted him of second -degree assault. The district court sentenced Treu to
86 months in prison. This appeal follows.
DECISION
I. Treu was not denied his constitutional right to present a complete defense and
confront witnesses based on the district court’s evidentiary rulings.

Treu argues that four of the district court’s evidentiary rulings were erroneous ,
preventing him from presenting a complete defense and confronting witnesses. A criminal
defendant has “the right to be treated with fundamental fairness and ‘afforded a meaningful
opportunity to present a complete defense.’” State v. Richards , 495 N.W.2d 187, 191
7
(Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984) ). Evidentiary
rulings rest within the sound discretion of the district court and will not be reversed absent
a clear abuse of discretion. State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014) . The
constitutional right to a meaningful opportunity to present a complete defense does not
exempt criminal defendants from the rules of evidence. State v. Wilson, 900 N.W.2d 373,
384 (Minn. 2017) . Constitutional errors are subject to harmless -error review. State v.
Taylor, 869 N.W.2d 1, 12 (Minn. 2015) .
a. The district court did not abuse its discretion in prohibiting Treu from
questioning D.A.Z. and R.M. about D.A.Z.’s past specific instances of
violence.

Before trial, Treu moved the district court for an “order allowing character trait
evidence of violence and an aggressive nature to be introduced as a trait of the alleged
victim [D.A.Z.]” under Minn. R. Evid. 404(a)(2) to show that D.A.Z. was the initial
aggressor and Treu acted in self -defense. Treu specifically sought to introduce acts of
violence referred to in four of D.A.Z.’s past criminal court files. The district court ruled
that any specific instances of D.A.Z .’s violence that Treu was unaware of on the day of the
incident were prohibited at trial. We agree.
To succeed on a self -defense claim, a defendant must present evidence that he was
not the aggressor. State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006). To show that the
victim was the aggressor, he may present evidence of the victim ’s violent character in the
form of reputation or opinion testimony, not in the form of specific prior violent acts .
Minn. R. Evid. 404(a)(2); Penkaty, 708 N.W.2d at 202. Prior-acts evidence is admissible
only to establish that the defendant reasonably feared great bodily harm if the defendant
8
was aware of the victim’s prior acts at the time of the alleged offense. State v. Zumberge ,
888 N.W.2d 688, 694 (Minn. 2017). Treu does not dispute that he did not know about
D.A.Z.’s past violent acts before the incident on December 3.2 As such, the acts would not
have “legitimately affect[ed] [ Treu’s] apprehensions” and caused him to fear great bodily
harm from D.A.Z. Id. Accordingly, the district court did not abuse its discretion in
prohibiting Treu from questioning D.A.Z. and R.M. about D.A.Z.’s past specific instances
of violence.
b. The district court did not abuse its discretion in prohibiting Treu from
impeaching D.A.Z.’s credibility with specific instances of his past violent
conduct.

Treu also contends that the district court impermissibly barred him from impeaching
D.A.Z.’s credibility with specific instances of D.A.Z.’s past violent conduct. During cross-
examination at trial, D.A.Z. testified about whether he was a person who fights :
Q: And that you are not a person that fights; correct?
A: Not unless provoked.
Q: Okay. What did you mean by I never ran?
A: I’m a people person . . . . Don’t really have anybody that
hates me. Don’t have any enemies so I guess I don’t – don’t
really fight anybody. I get along with everybody.
Q: Okay. You’re not a person that fights; correct?

2 Treu only argues that the district court should not have applied Minn. R. Evid. 405(a)
“mechanistically” to prevent Treu from presenting the specific-acts evidence because it
was the most convincing evidence available to prove self -defense: relevant evidence on
D.A.Z.’s character for violence. We disagree and recently rejected a nearly identical
argument in State v. Burdunice, A18-1269, 2019 WL 3000714, at *3 (Minn. App. July 8,
2019), rev. denied (Minn. Sept. 17, 2019) . In Burdunice, the defendant claimed self -
defense and sought to show that the victim was the aggressor through the victim’s past
violent conduct as the “most convincing evidence supporting his self -defense claim.” Id.
This court held that “convincing” is not the standard for admissibility, and evidence that
has “probative force” is routinely excluded based on other considerations such as its
potential for unfair prejudice. Id.
9
A: That would be correct.
Q: Before December 3 of 2019, had you ever been i n a fight?

The state object ed to the defense’s prior -acts question . D efense counsel responded that
D.A.Z. adopted a statement that he is not a person who fights and questions about his past
convictions for brawling and fighting went to his credibility. The district court sustained
the state’s objection.
Under the Minnesota Rules of Evidence, a party may attack the credibility of a
witness. Minn. R. Evid. 607. Rule 608(b) states that “prior misconduct, other than
conviction of a crime, may be admissible for the purpose of attacking [a] witness’s
credibility if the prior misconduct is probative of untruthfulness .” State v. Fields , 730
N.W.2d 777, 782 (Minn. 2007) . “[I]n the discretion of the court,” a party may inquire
about specific instances of conduct on cross-examination but may not prove them by
extrinsic evidence. Minn. R. Evid. 608(b). Additionally, the district court may exclude
relevant evidence “if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence .” Minn. R. Evid.
403; see Minn. R. Evid. 401 (“ [Relevant evidence] ha[s] any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”).
Treu argues that the district cour t prematurely prohibited his line of questioning to
show the jury D.A.Z. falsely portrayed himself as nonviolent when he shared he is “not a
person that fights.” But D.A.Z. also testified that he does not fight “unless provoked” and
10
that he put Treu in a headlock and punched him. D.A.Z.’s prior instances of fighting and
brawling are not probative of untruthfulness as his testimony does not show he is a peaceful
person who never fights. On these facts, we cannot conclude that the district court abused
its discretion by applying the plain language of rule 608(b).
Even if Treu could have permissibly asked whether D.A.Z. had been in a fight
before, the record also reflects the district cou rt excluded the evidence based on its
discretionary decision under rule 403 when it stated it was “concerned about the jury
getting confused and the prejudicial aspect of evidence or testimony related to prior
incidents.” “[D]eciding which facts or issues could confuse the jury—and whether that
risk of confusion is necessary to the adjudication of the case —is a function that rests
soundly within the discretion of the [district] court.” Doe 136 v. Liebsch, 872 N.W.2d 875,
881 n.3 (Minn. 2015). The probative value of showing D.A.Z. misrepresented himself to
cast doubt on the truthfulness of his testimony that Treu was the aggressor is undercut by
D.A.Z.’s overall testimony that he does engage in fighting when provoked. We discern no
abuse of discretion in the district court’s conclusion that the probative value of prior -acts
evidence to attack D.A.Z.’s credibility is substantially outweighed by the danger of unfair
prejudice and confusing the jury.
c. The district court did not abuse its discretion in prohibiting Treu from
questioning D.A.Z. about Facebook posts involving his attitude toward
pedophiles.

After D.A.Z. testified he confronted Treu about “touching little girls’ butts ,” Treu
sought to question D.A.Z. about two Facebook posts on D.A.Z.’s profile that he shared
months after the altercation . On July 6, 2020, D .A.Z. shared a post originating from
11
another Facebook user that stated , “Pedophilia is not a f —ing fetish, it will never be
accepted, and if you f —ing believe that it’s okay, let me know so I can stomp a d -mn hole
in you.” On October 27, 2021, D .A.Z. also shared a post from another user that stated , “I
wanna go to a pumpkin patch, watch horror movies, drink hot coco, and murder pedophiles.
You know, fall sh- t.” Defense counsel sought to examine D.A.Z. about his posts as prior
statements made by the witness under Minn. R. Evid. 613(a) and ask whether D.A.Z. would
act aggressively toward somebody he believed to be a pedophile . The district court
prohibited Treu’s proposed line of questioning based in part on his late disclosure of the
Facebook posts to the state, lack of relevance, and the “probative value being outweighed
by the prejudicial effect” of the posts. 3
On appeal, Treu only argues that the evidence is admissible u nder Minn. R. Evid.
616, which provides evidence of bias against any party is admissible to attack the
credibility of a witness. “Bias is a catchall term describing attitudes, feelings, or emotions
of a witness that might affect [his] testimony, leading [him] t o be more or less favorable to
the position of a party for reasons other than the merits.” State v. Lanz-Terry, 535 N.W.2d
635, 640 (Minn. 1995). Though extrinsic evidence may be admitted to show a witness is

3 Treu argues that the district court erred in prohibiting questions about D.A.Z.’s Facebook
posts as a late-disclosure discovery sanction for failing to provide them to the state before
trial under Minn. R. Crim. P. 9.02 because Treu did not intend to introduce the Facebook
posts as evidence. Rather, he only sought to ask whether D.A.Z. shared the sentiments
expressed in the posts. If Treu sought to examine D.A.Z. under Minn. R. Evid. 613(a), we
agree. Treu disclosed the posts to the state at the time of impeachment. See In re Welfare
of D.D.R., 713 N.W.2d 891, 904 (Minn. App. 2006) ( holding under Minn. R. Evid. 613(a)
defense counsel may examine a witness “without disclosing the contents of her prior
statement”). But the district court ’s additional ruling to prohibit the questioning under
Minn. R. Evid. 403 is dispositive.
12
motivated by bias, “not everything tends to s how bias, and courts may exclude evidence
that is only marginally useful for this purpose.” State v. Larson, 787 N.W.2d 592, 598
(Minn. 2010). Whether the district court abused its discretion in restricting a defendant ’s
attempted cross -examination that seeks to show bias turns on whether the jury has
sufficient other information to make a “discriminating appraisal” of the witness ’s bias or
motive to fabricate. Lanz-Terry, 535 N.W.2d at 641 (quotation omitted). The district court
“may exclude evidence o f extraneous matters based on concerns about such things as
harassment, decision making on an improper basis, confusion of the issues, and cross -
examination that is repetitive or only marginally relative.” Id. The district court may , in
its discretion, also exclude relevant evidence to impeach a witness in “instances . . . where
the probative value of the impeachment evidence may be outweighed by its tendenc y to
prejudice or confuse the jury.” State v. Underwood, 281 N.W.2d 337, 341 (Minn. 1979);
see also Minn. R. Evid. 403.
Despite the posts being shared on D.A.Z.’s page after the altercation, the content
reflecting D.A.Z.’s negative feelings toward pedophiles is relevant to the credibility of his
trial testimony and whether he fabricated Treu’s purported role as the aggressor because
he believed Treu had touched children inappropriately. Even so, the district court did not
abuse its discretion by restricting Treu’s attempted cross-examination. Treu could elicit
testimony about any statement made on December 3, including those involving
inappropriate touching. The jury also had sufficient other information of D.A.Z.’s bias
against Treu or motive to fabricate independent of perceived pedophilia based on the
testimony that D.A.Z. repeatedly removed Treu’s name from his mailbox, threw Treu’s
13
mail on the ground, and loosened lug nuts on Treu’s car. Because the central issue involves
determining whether Treu was the aggressor in the altercation , rather than determini ng
whether Treu had inappropriately touched children, we discern no abuse of discretion in
the district court’s conclusion that the probative value of the impeachment evidence was
substantially outweighed by the danger of confusing the jury and unfair prej udice.
d. The district court’s error in prohibiting R.M. from testifying about D.A.Z.’s
reputation for violence was harmless.

During a bench conference where Treu also sought to impeach D.A.Z.’s credibility
with specific instances of his past violent conduct , Treu said he intended to elicit evidence
about D.A.Z.’s reputation for violence through R.M. Treu intended to question R.M. about
a sworn statement she made in a court file seeking an order for protection. Treu argued the
testimony was “not a specific instance” of past violence because R.M. state d in the
statement that D.A.Z. abused her. Thus, R.M. knew of D.A.Z.’s propensity for aggressive
or violent behavi or. The record reveals that, while ruling on the impeachment issue, the
district court relied on a discovery sanction and its conclusion based on Minn. R. Evid. 403
to preclude R.M.’s testimony.4
Indeed, to show that the victim was the aggressor, a defendant may present evidence
of the victim’s violent character in the form of reputation or opinion evidence. Penkaty,
708 N.W.2d. at 202; State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) . Here, the district

4 Here too, we agree with Treu’s contention that the district court erred in excluding the
testimony based on a discovery sanction. Treu’s trial witness list adopted individuals noted
on the state’s witness list, which included R.M., and afforded the state notice under Minn.
R. Crim. P. 9.02 that R.M. may be called to testify for the defense.
14
court erred in excluding R.M.’s testimony based on the danger of confusing the jury and
unfair prejudice. The probative value of D.A.Z.’s reputation for violence is high and would
permit the jury to infer D.A.Z. was more likely to be the aggressor. The danger of
confusing the jury is arguably low. Treu sought to question R.M. about her knowledge of
D.A.Z.’s reputation for violence rather than recount particular times when D.A.Z. abused
her. The testimony went to the central issue of the case : determining which party was the
aggressor. And, assuming Treu did not ask about specific instances of violent conduct, the
testimony would have posed little risk that the jury would confuse the central issue in this
trial with the issue about whether D.A.Z. abused R.M. in the past. For these reasons, the
district court abused its discretion.
Treu contends that the district court’s error deprived him of a meaningful
opportunity to present a complete defense, which we review under the harmless -beyond -
a-reasonable-doubt standard. See Taylor, 869 N.W.2d at 12. “An error in excluding
[defense] evidence is harmless only if the reviewing court is ‘satisfied beyond a reasonable
doubt that if the evidence had been admitted and the damaging potential of the evidence
fully realized, a [reasonable] jury would have re ached the same verdict.’” State v. Olsen,
824 N.W.2d 334, 340 (Minn. App. 2012) (quoting State v. Post , 512 N.W.2d 99, 102
(Minn. 1994)). A new trial is required unless the state can show beyond a reasonable doubt
that the error was harmless. State v. Sanders , 775 N.W.2d 883, 887 (Minn. 2009) . This
court must “look to the basis on which the jury rested its verdict and determine what effect
the error had on the actual verdict.” State v. Jones , 556 N.W.2d 903, 910 (Minn. 1996)
(stating reviewing court must consider several factors, including importance of testimony,
15
its cumulative nature, whether there is corroborating or contradicting evidence, extent of
cross-examination, and strength of the prosecution’s case) .
Even if R.M. testified to D.A.Z.’s reputa tion for violence, the state’s case against
Treu was strong. Both D.A.Z. and R.M. testified that Treu was the aggressor. In a case
involving competing versions of events, Treu’s account of the fight and his credibility are
undercut by conflicting evidence. First, Treu told the officer at the scene that he only struck
D.A.Z. with his hands. The surgeon that treated D.A.Z. testified his wounds were likely
caused by a sharp object and officers discovered a box cutter in the area where the
altercation occurred. At trial, Treu stated he lashed out only once at D.A.Z. with the blade
to cut his face and arm. But the physical evidence show s that D.A.Z. also received
multiple, serious lacerations on his back and hand . While R.M.’s testimony may have
helped the jury in weighing which version of events to credit, the jury heard D.A.Z.’s
admission that he fights when provoked and is not wholly peaceful. The jury’s verdict
reflects that it believed D.A.Z. and R.M.’s testimony that Treu was the aggressor and did
not act in self-defense. We see no reasonable probability that excluding R.M.’s testimony
contributed to Treu’s conviction and conclude that the error was harmless beyond a
reasonable doubt.
II. The district court did not abuse its discretion in denying Treu’s continuance
request.

Treu contends the district court abused its discretion in denying the trial continuance
defense counsel requested on October 28, 2021. Defense counsel advised the dist rict court
that pushing him to trial would lead to the danger of giving Treu ineffective assistance of
16
counsel and requested that the trial be set for January . “The decision to grant or deny a
motion for a continuance lies within the sound discretion of t he [district] court and will
only be reversed upon a showing of abuse of discretion.” State v. Turnipseed, 297 N.W.2d
308, 311 (Minn. 1980). In discerning whether the district court abused its discretion, this
court must examine the circumstances when th e motion was made to “determine whether
the defendant was so prejudiced in preparing or presenting a defense as to materially affect
the outcome of the trial.” State v. Smith , 932 N.W.2d 257, 268 (Minn. 2019) (quotation
omitted).
Relevant circumstances in clude the number of continuances already granted to the
moving party and the timing of the request. See State v. Sanders , 598 N.W.2d 650, 654
(Minn. 1999) (holding appellant was not prejudiced by denying continuance request when
the court had granted two motions for continuance); State v. Worthy, 583 N.W.2d 270, 278
(Minn. 1998) (concluding that district court properly denied request to substitute counsel
on the first day of trial); State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 1979) (concluding
the distr ict court properly denied a continuance request after defendant had already
received five continuances).
The chronology preceding the requested continuance does not favor granting Treu’s
request. Before the continuance at issue, the district court had already granted two of
defense counsel’s motions for continuance.5 On September 13, Treu did not appear for
trial because he was ill and defense counsel stated he was unprepared to try the case set for

5 These two trial continuance requests are attributed to Treu alone rather than the occasions
Treu spoke on behalf of both parties and requested that the trial be continued.
17
trial that day. The distric t court granted Treu’s continuance request and set the trial for
October. On September 28, Treu submitted a written request to continue the trial to
December and the district court granted this request. Ultimately , the district’s chief judge
set the tria l for November 1, rather than December, and defense counsel obtained the
benefit of a continuance to a date later than the October trial calendar. Treu’s final request
for a continuance was made only three days before trial was scheduled to begin.
Citing In re Welfare of T.D.F., Treu argues that defense counsel’s lack of
preparedness for trial justified his continuance request and the district court’s refusal
entitles him to a new trial. 258 N.W.2d 774, 775 (Minn. 1977) (“When denial of a
continuance deprives defendant’s counsel of adequate trial preparation, we must reverse
the conviction.”). We are unpersuaded. In T.D.F., the defen se counsel was out of town at
the time of a hearing and the attorney taking their place had not prepared at all for a hearing
that required extensive investigative work. Id. Treu was not similarly prejudiced. Defense
counsel’s failure to obtain corroborating witness testimony from the surgeon who operated
on Treu’s shoulder and the doctor who treated Treu’s injuries after the fight did not prevent
the jury from hearing evidence on these subjects. Treu submitted photos of his wounds
from the dog bite and testified to the severity of his injuries and the length of his treatment.
Treu further testified to the limited mobility of his right arm following shoulder surgery,
contradicting D.A.Z. and R.M.’s testimony that he wielded the box cutter in his right hand.
When the district court denied Treu’s continuance request, it noted that nothing had
changed since the matter was set for trial by the district’s chief judge. As early as May 17,
defense counsel knew he needed to make arrangements for experts when he asked the
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district court to set the trial for September to “get experts, line them up, and have everything
all prepared to go.” Given the state’s speedy trial demand on September 13, which required
the trial to begin before November 12, 2021, granting defense counsel’s requested
continuance to January would have put the trial well outside of 60 days from the demand
and violated the victim’s speedy trial rights. See Minn. Stat. § 611A.033(a) (2022).
On these facts, it is not apparent that the denial of Treu’s continuance motion was
so prejudicial in preparing his defense as to “materially affect the outcome of the trial.”
Smith, 932 N.W.2d at 268. The district court did not clearly abuse its discretion by denying
Treu’s motion for a continuance.
III. Treu was not denied his right to effective assistance of counsel based on defense
counsel’s lack of preparedness.

Treu contends he received ineffective assistance of counsel and is entitled to a new
trial. Claims of ineffective assistance of counsel involve mixed questions of law and fact,
which this court reviews de novo. State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) .
When an ineffective -assistance-of-counsel claim is raised in a direct appeal, the co urt
examines the claim under the two -prong test set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984). Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013) . Under the first
prong, an appellant must show that “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687- 88. The second prong requires
an appellant to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been diff erent.” Id. at 694.
Failure on either prong is dispositive. Id. at 687. There is a strong presumption that a
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counsel’s performance falls within the “wide range of reasonable professional assistance.”
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) .
Treu argues his defense counsel’s performance was deficient in three respects. First,
Treu contends his attorney failed to conduct an adequate investigation in the case. “[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 v.
State, 882 N.W.2d 207, 218 (Minn. 2016) . Treu asserts that his defense counsel neglected
to investigate aspects of the case. But Treu does not elaborate what precisely defense
counsel failed to investigate. An attorney’s own admission that he did not complete his
investigation is not per se ineffective assistance as it doe s not address how Treu was
prejudiced by the error. Treu argues that defense counsel’s failure to investigate D.A.Z.’s
Facebook page before the start of the trial was unreasonable. But the result of the
proceeding would not have been different with an earlier investigation because the district
court permissibly excluded Treu’s proposed inquiry about the posts.
Second, Treu argues his defense counsel’s performance was deficient in failing to
subpoena witnesses to corroborate his testimony. Perhaps if his attorney made appropriate
arrangements, then Treu may have benefited from corroborating testimony from (1) his
shoulder surgeon about the immobility of his right arm and (2) the emergency room doctor
to bolster Treu’s account of the severity of his inj uries from the altercation. “[M]atters of
trial strategy, including which witnesses to call . . . will not be reviewed later by an
appellate court as long as the trial strategy was reasonable.” Ives v. State, 655 N.W.2d 633,
636 (Minn. 2003). Where an a ttorney fails to investigate evidence or witnesses that are
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essential to the attorney’s theory of the case, the attorney is ineffective . State v. Nicks, 831
N.W.2d 493, 508 (Minn. 2013). Here, it appears that defense counsel did not omit these
witnesses as a matter of reasonable trial strategy . Rather, defense counsel failed to follow
through on completing subpoenas and funding requests to ensure witness testimony by the
trial date.
Even so, it is unlikely that this added testimony would have changed the outcome
of the proceedings. Treu told t he jury about the severity of his injuries, describing the
extensive treatment that his wounds required and showing pictures of his injuries. Whether
testimony on Treu’s past shoulder injury that corroborated his purported limited range of
motion would have changed the outcome of the proceedings is a closer call. D.A.Z. and
R.M. both testified they were sure Treu used his right arm to lash out at them with the
blade. In a case with competing narratives, the testimony might have corroborated one
aspect of Treu’s version of events and bolstered his credibility. Yet, Treu’s testimony that
he lashed out only once at D.A.Z. with the blade to cut his face and arm is contradicted by
the physical evidence showing that D.A.Z. had multiple lacerations on his back and hand
after the fight. Treu’s ineffective-assistance claim fails for his inability to show prejudice
such that the jury “would have had a reasonable doubt respecting gui lt” without the
professional error. Strickland, 466 U.S. at 695.
Finally, Treu claims defense counsel ’s representation fell below an objective
standard of reasonableness when he committed three discovery violations that ultimately
precluded the jury from hearing of D.A.Z.’s reputation for violence or his bias against
pedophiles. Here too, Treu cannot show the prejudice necessary to carry the second
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Strickland prong. While the district court cited discovery sanctions as a reason for not
allowing R.M. to t estify on D.A.Z.’s reputation for violence and not allowing defense
counsel to question D.A.Z. about his Facebook posts, the district court also ultimately
relied on Minn. R. Evid. 403 to exclude those lines of inquiry because of the prejudicial
risk that it might confuse the jury. Even if counsel had not made errors in discovery
disclosures, the district court also decided to exclude the inquiries under the rules of
evidence. Thus, there is not a reasonable probability that the jury would have heard the
evidence that would have changed the outcome of the trial. Because Treu’s claims fail
under Strickland, he was not denied his right to effective assistance of counsel and is not
entitled to a new trial.
Affirmed.