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This opinion is nonprecedential except as provided by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
A22-0745

State of Minnesota,
Respondent,

vs.

Cortez Deon Banks,
Appellant.

Filed July 31, 2023
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-21-17568

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

Mary F. Moriarty, Hennepin County Attorney, Peter R. Marker, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Bryan, Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Cortez Deon Banks appeals from judgments of conviction for
second-degree attempted murder, second-degree assault with a dangerous weapon, and
violating an order for protection (OFP). He argues that (1) the district court erred by
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allowing a sexual-assault nurse examiner (SANE) to testify as to what one of the victims—
who did not testify at trial—said to her because the testimony was hearsay and its admission
violated his rights under the Confrontation Clause and (2) the district court erred by
sentencing him for both attempted murder and violating an OFP because the offenses arose
out of a single behavioral incident. In a pro se supplemental brief, Banks additionally
argues that (3) the district court abused its discretion by denying his request for a mistrial
after an alleged discovery violation by the state and (4) he received ineffective assistance
of counsel.
We conclude that (1) especially given the strength of evidence against Banks, any
error by the district court in allowing the SANE nurse to testify was harmless; (2) the record
supports the determination that the attempted murder and the OFP violation did not share
the same criminal objective and thus were separate behavioral incidents; (3) the district
court acted within its discretion in denying Banks’s request for a mistrial; and (4) Banks’s
claim of ineffective assistance of counsel fails. We therefore affirm.
FACTS
In a criminal complaint, respondent State of Minnesota alleged that Banks stabbed
K.A., the mother of his two- year-old child, and K.A.’s mother, G.W., and strangled,
suffocated, and sexually assaulted K.A. The attack took place at K.A. and G.W.’s
apartment, most of it in the presence of the child. The state charged Banks with
second-degree attempted murder, first-degree criminal sexual conduct, first-degree assault,
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second-degree assault with a dangerous weapon, and violating an OFP.1 Banks plea ded
not guilty and, in the alternative, with respect to some of the charges, asserted self-defense.
A jury trial was held. K.A. did not testify. Among the witnesses for the state were
G.W., the officers who responded to the incident, the main investigator, and K.A.’s SANE
nurse. Body-worn-camera footage from the officers was also admitted into evidence and
viewed by the jury. Banks testified in his defense. The following is a summary of this trial
evidence.
On September 21, 2021—the day of the incident—K.A. was living in an apartment
with her mother, G.W., who is paraplegic. Earlier that month, K.A. had obtained a
protective order that generally prohibited contact between K.A. and Banks but allowed text
messages for the purpose of parenting their daughter.
Around 1:43 a.m., officers responded to K.A. and G.W.’s apartment after four 911
calls. Three calls were from G.W., and one was from a neighbor who heard screams
coming from the apartment. When officers entered the apartment, they approached one of
the apartment’s two bedrooms because they heard screaming and crying coming from the
room. The door to the bedroom was broken, indicating a forced entry. In the bedroom,
the officers saw K.A., G.W., and Banks in the bed and the child crying next to the bed.
Blood was covering the bed, headboard, walls, and floor. The child was also covered in

1 The charges alleged violations of Minnesota Statutes sections 609.19, subdivision 1(1)
(2020), with reference to sections 609.17, 609.342, subdivision 1(c)(ii), 609.221,
subdivision 1, 609.222, subdivision 1, and 518B.01, subdivision 14(d)(1) (2020).
4
blood. G.W. was screaming, “He killed her,” while K.A. was lying in the bed
unresponsive, without a pulse and with a pillow covering her face.
While one of the officers placed Banks— who was naked—in handcuffs, the other
officers moved K.A. from the bed to the floor to conduct cardiopulmonary resuscitation
(CPR) and were able to regain a pulse. K.A. had been stabbed over 15 times and had a
large wound on her abdomen. G.W. had been stabbed in her hand and arm. Three knives
were collected from the scene—two from the bedroom, which had both Banks’s and K.A.’s
blood on them, and one from the kitchen, which did not have either of their blood on it.
G.W. testified that Banks broke through her bedroom door after K.A. ran in, quickly
shut the door, and got into bed with her. G.W. said that, once Banks got into the bedroom,
he got on top of K.A. and stabbed her several times while saying, “Die, you’re going to
die, b----h.” She said that the child entered the room after Banks did. G.W. also testified
that Banks sp at on K.A.’s face, raped her, strangled her, and then suffocated her with a
pillow. G.W. stated that her injuries to her left arm and hand were due to her attempt to
intervene.
The SANE nurse who interviewed and evaluated K.A. at around 4:00 a.m. after the
incident testified about her evaluation, including what K.A. told her about the events
leading to her injuries. Banks objected to some of that testimony as hearsay and, at the
close of the state’s case when K.A. had not testified, also moved to dismiss the case for
violation of his Confrontation Clause rights. The district court allowed the challenged
testimony and denied the motion to dismiss.
5
The SANE nurse testified that K.A. told her that she had been in a relationship with
Banks for about five years , but they had recently broken up. K.A. said that she invited
Banks to her apartment that night and that they had consensual sex. But, when Banks tried
to have sex with her again, K.A. pushed him away, so Banks started choking her . K.A.
threw a candle at Banks and ran into G.W.’s room and shut the door, but Banks forced the
door open and had a knife in his hand. Then Banks started stabbing K.A., telling her, “Die,
why won’t you die already,” in front of their child.
When Banks testified, he agreed that K.A. invited him over to her apartment and
said that, after hanging out with their child and putting her to bed, he and K.A. had
consensual sex. From there, his account of that night varied from G.W.’s testimony and
the SANE nurse’s testimony regarding K.A.’s account. He testified that, after he had sex
with K.A., his phone rang, and a disagreement ensued between him and K.A. over who had
called him. He said that K.A. went to the kitchen, grabbed a knife, and stabbed him in the
face. He said that he then grabbed a knife from the kitchen and ended up in G.W.’s
bedroom fighting over the knives with K.A. Banks testified that, during this altercation,
K.A. stabbed him in the hand while he was trying to grab her knife and that, once he was
able to gain control of the knife, he stabbed K.A. in self-defense.
The jury found Banks guilty of second-degree attempted murder, second-degree
assault with a dangerous weapon, violating an OFP, and third-degree assault.2 But the jury
found Banks not guilty of first-degree criminal sexual conduct and first-degree assault.

2 Although Banks was not initially charged with third-degree assault, he requested the
charge be added at trial.
6
After Banks waived his right to a jury determination on the issue, the district court found
that two aggravating factors were present for the second-degree attempted murder and the
second-degree assault —the offense occurred in the victims’ zone of privacy and the
offense occurred in the presence of a child. Banks was sentenced to imprisonment of 200
months for second-degree attempted murder, 21 months for second- degree assault with a
dangerous weapon, and 32 months for violating an OFP, to be served consecutively.
Banks appeals.
DECISION
I. Any error by the district court in allowing the SANE nurse’s testimony about
K.A.’s statements was harmless.

Banks asserts that the district court erred by allowing the SANE nurse to testify
regarding some of K.A.’s statements to her because (1) the statements did not satisfy the
medical-diagnosis hearsay exception and were inadmissible and (2) since K.A. did not
testify at trial, the statements were admitted in violation of his rights under the
Confrontation Clause, see U.S. Const. amend. VI. He argues that admission of the
evidence was prejudicial because, without it, there is a reasonable probability the jury
would have acquitted Banks of second-degree attempted murder. He contends that the
asserted prejudicial error deprived him of a fair trial and that, therefore, all his convictions
must be reversed.
Generally, we review evidentiary rulings by the district court for an abuse of
discretion. See State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). We apply that same
standard of review to a district court’s determination that a statement meets the
7
foundational requirements of a hearsay exception. See Holt v. State, 772 N.W.2d 470, 483
(Minn. 2009). But we apply a de novo standard of review to whether an evidentiary
decision by the district court violated a defendant’s rights under the Confrontation Clause.
See State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
Even if the admission of evidence was an abuse of discretion under the rules of
evidence or erroneous under the Confrontation Clause, reversal is not mandated if the error
was harmless. Id. at 314. An evidentiary error is harmless if the wrongly admitted
evidence did not “significantly affect[] the verdict.” State v. Peltier, 874 N.W.2d 792, 802
(Minn. 2016). A constitutional error, on the other hand, is subject to a higher standard— it
must be harmless beyond a reasonable doubt, meaning the verdict must have been “surely
unattributable to the error.” Caulfield, 722 N.W.2d at 314. We need not decide whether
the admission of K.A.’s statements via the SANE nurse’s testimony was erroneous if the
error was harmless. See Hawes v. State, 826 N.W.2d 775, 786 (Minn. 2013) (evaluating
only harmless error). We therefore turn to that question.
We begin with the more stringent constitutional test because harmless error under
that test will satisfy both tests. The Minnesota Supreme Court has explained that, when
making a harmless-error determination under the constitutional standard, an appellate court
considers several factors: (1) “the manner in which the evidence was presented,”
(2) “whether it was highly persuasive,” (3) “whether it was used in closing argument,”
(4) “whether it was effectively countered by the defendant,” and (5) whether there is
“overwhelming evidence of guilt.” Caulfield, 722 N.W.2d at 314 (quoting State v.
Al-Naseer, 690 N.W.2d 744, 748 (Minn. 2005)).
8
Banks challenges the admission of the following statements by K.A., as testified to
by the SANE nurse:
• “I fought back by throwing a candle at him, and he ran out of the room.”

• “I went to my mother’s room and shut the door. I thought he was going
to leave.”

• “He then came to my mother’s bedroom door, forced it open, and he had
a knife. And I jumped on my mom’s bed.”

• “She’s a paraplegic.”

• “I need help.”

• “He [was] saying, die already, why won’t you die already.”

• “And my daughter had gone into the room before I shut the door, so she
witnessed all of this.”

• “I remember seeing lights . . . I was fading . . . I couldn’t breathe. It
seemed like forever. I don’t remember anything else. I just knew I was
dying.”

• “The next thing I remember, I was aware of the fact that I was in the
hospital and I was alive. I can’t remember much.”

Applying the five factors outlined above, we conclude that the jury’s guilty verdict
for attempted second-degree murder was surely unattributable to any erroneous admission
of this evidence.
First, the evidence was not presented in a manner that gave it such a significant
focus at trial that it prejudiced Banks. The statements were part of the SANE nurse’s
broader testimony about her evaluation of K.A., and the SANE nurse was one of 20
witnesses at trial.
9
Second, the testimony was not highly persuasive of Banks’s guilt. The statements
merely corroborated the material facts about the incident that G.W. had already testified
to. And, because G.W., who witnessed the brutal assault, was present to testify in front of
the jury and K.A. was not, G.W.’s testimony was more likely persuasive than the SANE
nurse’s testimony merely reporting what she had been told. Also, the SANE nurse’s
testimony regarding her medical evaluation of K.A. was more persuasive of Banks’s guilt
than her testimony about what K.A. told her because the medical- evaluation testi mony
showed how K.A.’s symptoms and injuries were consistent with strangulation and
stabbing.
Third, the state minimally used the challenged testimony in its closing argument.
The state mentioned the SANE nurse’s account from K.A. three times. Two of those times
were limited to stating that Banks’s testimony was different from what K.A. told the nurse
and reminding the jury that K.A. did not testify. And the third was a short restatement of
that testimony —that Banks started choking K.A., she threw a ca ndle at him, ran into
G.W.’s room, and Banks stabbed her while saying, “Die already, why won’t you die
already.” The key details in that account were already testified to by G.W.
Fourth, Banks had the opportunity to counter the SANE nurse’s testimony as to what
K.A. said. Banks was able to cross-examine the nurse, and he testified as to his version of
events. It was up to the jury to determine which witness was more credible. See State v.
Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (“The credibility of witnesses and the
weight to be given their testimony are determinations to be made by the factfinder.”
(quotation omitted)).
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Finally, the evidence of Banks’s guilt —apart from the challenged statements— is
overwhelming. Body- worn-camera footage shows Banks covered in blood on top of
K.A.’s unconscious body when police arrived, with G.W. and the child in the room. The
footage shows K.A. with a pillow over her face and the officers then performing lifesaving
efforts after discovering that K.A. did not have a pulse. Officer testimony establishes that
the bedroom door had been forced open. G.W.’s testimony identifies Banks as the
perpetrator, explains largely the same sequence of events that K.A. told the SANE nurse,
and establishes that G.W. is paraplegic. And Banks admitted to stabbing both K.A. and
G.W. in his own testimony.
Although Banks acknowledges that he “likely would have been convicted of some
offense without [K.A.’s] statement to [the SANE nurse],” he argues that “it is not clear that
he would have been convicted of attempted murder absent the dramatic statement wherein
[K.A.] described seeing lights and fading, Banks saying, ‘[D]ie already, why won’t you die
already,’ and that she knew she was dying.” The argument is unconvincing. K.A. suffered
grievous injuries—when the police arrived, she lacked a pulse and needed to be revived by
CPR. Moreover, G.W. testified that Banks stabbed, strangled, and suffocated K.A. while
telling her she was going to “die.” Therefore, the evidence that Banks had the requisite
intent for attempted murder is overwhelming even without K.A.’s statements.
In sum, even if there was any evidentiary or constitutional error in allowing the
SANE nurse to testify as to K.A.’s statements, it was harmless because the jury’s guilty
verdict on attempted murder was surely unattributable to any such error. Banks was
therefore not deprived of a fair trial.
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II. The district court did not err by imposing two separate sentences for Banks’s
convictions of violating an OFP and second-degree attempted murder.

Banks argues that the district court erred by sentencing him for both violating an
OFP and second-degree attempted murder.
Minnesota Statutes section 609.035, subdivision 1 (2020), prohibits multiple
sentences for two or more offenses if the offenses were committed as part of a single
behavioral incident. See State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). When the
crimes contain an intent element, courts determine whether they were part of a single
behavioral incident by considering (1) “whether the offenses occurred at substantially the
same time and place” and (2) “whether the conduct involved was motivated by an effort to
obtain a single criminal objective.” Id. (quotations omitted). The state bears the burden of
proving that the offenses were not part of a single behavioral incident. Id.
Whether the offenses occurred as part of a single behavioral incident is a mixed
question of law and fact. Id. We review the district court’s factual findings for clear error
and its application of the law to those facts de novo. Id.
The offenses here occurred at the same place and close in time; the question is
whether the other factor—a single criminal objective—was met. The record supports the
determination that Banks’s criminal objective changed as the night progressed. His
criminal objective began as an objective to have contact with K.A. notwithstanding the
OFP. Testimony by Banks and the SANE nurse established that Banks came to the
apartment, at K.A.’s invitation, for a consensual sexual encounter and to spend time with
his daughter. Thereafter, Banks’s criminal objective changed. Once K.A. did not want to
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continue having sex or—according to Banks —once K.A. and he got into an argument over
who called his cellphone, Banks’s criminal objective changed to attacking and attempting
to kill K.A. Banks’s criminal objective when violating the OFP was therefore different
from his criminal objective when attacking K.A.
This conclusion is supported by caselaw. In State v. Bookwalter, the defendant’s
two offenses of criminal sexual conduct and attempted murder lacked a single criminal
objective in part because the offenses required different criminal intents and were not part
of “prearranged program of events.” 541 N.W.2d 290, 295-96 (Minn. 1995). Like in
Bookwalter, here, the record supports that there was a change in Banks’s criminal objective
during the course of the night from wanting to see K.A. and his child to stabbing and
suffocating K.A. to the point of death.
Banks points to State v. Rivers to support a contrary conclusion. 787 N.W.2d 206
(Minn. App. 2010). In Rivers, we concluded that the district court erred by imposing
separate sentences for convictions of violating an OFP and assault because the OFP
violation “was the means by which Rivers was able to assault [the victim].” Id. at 213-14.
But Rivers is distinguishable from this case. Rivers’s criminal objective—to assault the
victim—was consistent throughout the commission of both the OFP violation and the
assault. Here, as discussed above, Banks’s criminal objective was not the same during the
commission of the two offenses.
In sum, the district court did not err by imposing multiple sentences for violating an
OFP and second-degree attempted murder, because the offenses did not occur as part of a
single behavioral incident.
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III. The district court acted within its discretion when it denied Banks’s request
for a mistrial after an alleged discovery violation by the state.

In his pro se supplemental brief, Banks argues that the district court abused its
discretion by denying his request for a mistrial in response to the state providing to the
defense—during trial —a witness statement of the doctor who treated Banks’s hand
injuries. According to the statement, the doctor was going to testify that the injuries to
Banks’s hand came from his hand slipping down the blade of a knife from stabbing. The
district court allowed the doctor to testify but limited his testimony regarding the cause of
Banks’s injuries.
Appellate courts review the denial of a motion for a mistrial for an abuse of
discretion. State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016). A district court should
grant a mistrial only if there is a reasonable probability, in light of the entirety of the trial,
that the outcome of the trial would be different if the incident resulting in the motion had
not occurred. Id. The district court is in the best position to determine whether an error is
sufficiently prejudicial to require a mistrial or whether another remedy is appropriate. Id.
On this record, the district court acted within its discretion in denying Banks’s
request for a mistrial. Banks argued at trial that the doctor’s newly proposed testimony
undermined Banks’s claim that his hand injuries were defensive wounds and that he would
have sought his own expert witness had he known about the proposed testimony. But the
district court did not permit the doctor to give testimony that ruled out defensive wounds.
Instead, it allowed the doctor to testify that he did not know how the injuries occurred or
that there are many possibilities for how they occurred, but he could not offer details to
14
support a particular theory. This limitation was an appropriate remedy to the alleged late
disclosure and mitigated any prejudice to Banks. When he testified, the doctor described
in medical terms the injuries to Banks’s hand. He explained that he could not tell the court
exactly how the injuries occurred but that they were consistent with (1) grabbing a knife’s
blade, (2) closing the fingers over the blade, and (3) slipping of the hand from the handle
of the knife down to the blade. These three explanations supported both the state’s and
Banks’s respective theories of the case—the injuries could have resulted from Banks’s
hand slipping down a blood-covered knife while he was stabbing the victim, or they could
have been defensive wounds from grabbing a knife or closing fingers around the blade of
a knife wielded against him.
In sum, the district court’s decision to deny Banks’s request for a mistrial was not
an abuse of its discretion because the doctor’s testimony —even if not timely disclosed—
was not sufficiently prejudicial to Banks’s self-defense claim.3

3 Banks further argues that the district court abused its discretion by not granting a
continuance during trial in order for him to find an expert witness to reconstruct his hand
injury. But because neither Banks nor his counsel requested a continuance at trial, we do
not address that argument here. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)
(explaining that appellate courts “generally will not decide issues which were not raised
before the district court, including constitutional questions of criminal procedure”).
Moreover, a continuance to seek an injury reconstructionist would not have changed the
outcome of the case, as described below, and appellant thus has not shown that any denial
of a continuance was reversible error. See State v. Turnipseed, 297 N.W.2d 308, 311
(Minn. 1980) (explaining that a reviewing court must consider whether denial of a
continuance request “prejudiced [the] defendant by materially affecting the outcome of the
trial”).
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IV. Banks’s ineffective-assistance-of-counsel claims fail.

In his pro se supplemental brief, Banks also asserts three claims of ineffective
assistance of counsel. When an ineffective-assistance-of-counsel claim can be determined
on the basis of the trial record, it can be decided on direct appeal. See Sanchez-Diaz v.
State, 758 N.W.2d 843, 847 (Minn. 2008). The record here is sufficient to decide the three
claims that Banks advances.
Ineffective-assistance-of-counsel claims are evaluated according to the two-prong
Strickland test. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Peltier v.
State, 946 N.W.2d 369, 372 (Minn. 2020) (applying the Strickland test). To meet this test,
an appellant must show that (1) the attorney’s representation “fell below an objective
standard of reasonableness” and (2) “there was a reasonable probability that, but for [the
attorney’s] errors, the result of the proceedings would have been different.” Peltier, 946
N.W.2d at 372 (quotation omitted). If one prong is not satisfied, we may dispose of the
claim without considering the other prong. Id. Generally, we will not review attacks on
counsel’s trial strategy. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013); see also State
v. Nicks, 831 N.W.2 d 493, 506 (Minn. 2013) (“We give trial counsel wide latitude to
determine the best strategy for the client.”). And we apply a strong presumption that an
attorney’s “performance falls within the wide range of reasonable professional assistance.”
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quotation omitted).
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A. Banks’s attorney’s decision not to object to or move to suppress the
inspector’s testimony did not prejudice Banks.

First, Banks argues that his attorney was ineffective because she neither moved to
suppress nor objected to the investigator’s rebuttal testimony relaying what Banks told him
during his custodial interrogation. He contends that, had his attorney acted, the testimony
about Banks’s custodial statements would have been excluded because the interrogation of
Banks, although recorded, did not produce a sufficient recording to be played at trial.
Minnesota law requires that all custodial interrogations be recorded. State v. Scales,
518 N.W.2d 587, 592 (Minn. 1994). Suppression of a custodial statement is required if the
violation of the Scales rule is “substantial.” Id. A “substantial” violation is one that creates
a significant risk that an incriminating statement may have been untrue, considering the
extent to which the violation prejudices the defendant’s ability to defend himself. Id. at
592 n.5 (quoting Model Code of Pre-Arraignment Procedure § 150.3(2)-(3)).
We do not have to address whether there was a substantial violation of the Scales
rule or whether Banks’s attorney’s conduct was unreasonable because, even if either or
both were true, Banks has failed to satisfy the second Strickland prong—that the outcome
of his case would have been different with the exclusion of the investigator’s testimony.
Without the investigator’s statements, the jury would still have been left with a credibility
determination between Banks’s statement on self-defense versus G.W.’s statement that
Banks forced his way into her bedroom and began stabbing K.A.
Further, the investigator’s testimony as to what was said by Banks in his
interrogation largely mirrored Banks’s trial testimony on his use of self-defense during the
17
incident. For example, the investigator testified that Banks told him that K.A. grabbed a
knife from the kitchen first, that K.A. stabbed his hand while he was trying to get the knife
from her, and that he ran away from K.A. into G.W.’s room. Banks similarly testified that
K.A. grabbed a knife from the kitchen after a disagreement, K.A. stabbed him in the face
and hand, he backpedaled away from her into G.W.’s room, and K.A. cut his hand after
Banks tried to get the knife from her. Although there were some inconsistencies between
Banks’s two accounts, the investigator’s testimony showed that Banks had a consistent
narrative throughout the case. Accordingly, the investigator’s testimony about Banks’s
custodial statements without the recording did not prejudice Banks, and exclusion of the
testimony likely would not have led to his acquittal.4
B. Banks’s attorney’s decision not to hire an expert witness did not
prejudice Banks.

Second, Banks asserts that his attorney was ineffective because she did not retain
an expert witness to reconstruct Banks’s hand injuries at trial to support his self- defense
claim.
Again, we begin with the second Strickland prong. The trial record shows that
Banks’s attorney did not consider seeking out an injury reconstructionist until she received
the state’s witness statement of the doctor who treated Banks’s hand injuries. But even if
Banks’s attorney’s decision not to seek an injury reconstructionist until a few days into
trial fell below an objective standard of reasonableness, Banks still has not satisfied the

4 Although Banks also maintains that the recorded statement contained exculpatory
evidence that would have impacted the jury’s verdict, he does not identify what that
evidence is. As such, this argument is not persuasive.
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prejudice prong. Banks has not explained how an injury reconstructionist would have
changed the outcome of the case, especially given that the state’s witness testified that his
hand injuries could have been caused by grabbing a knife or wrapping his fingers around
knife—in other words, the injuries could have been defensive, as Banks contended.
C. Banks’s attorney was not ineffective at sentencing.

Finally, Banks asserts that his attorney was ineffective at sentencing because it was
unreasonable for her not to investigate his background or argue for mitigating factors based
on information from his presentence-investigation report (PSI). Particularly, he contends
that his attorney should have interviewed his family and sought experts to further analyze
his mental state because “the expert would’ve determined [he] acted under the influence of
mental and emotional disturbance.”
Banks’s attorney’s decisions whether to interview his family members and seek
experts to analyze his mental state were matters of trial strategy falling within the wide
range of reasonableness. See Andersen, 830 N.W.2d at 10, 13 (explaining that the extent
of trial counsel’s investigation and which witnesses to interview are considered part of trial
strategy). Based on this court’s thorough review of all the information within Banks’s PSI,
not just the information cited by Banks, we conclude that it was not unreasonable for
Banks’s attorney to not further investigate his alleged mental-health concerns as a
mitigating factor for sentencing.
Moreover, even if the first prong of Strickland were satisfied, the second prong is
not. The district court found two aggravating factors—the offense occurred in the victims’
zone of privacy and in the presence of a child—and it had access to Banks’s PSI and could
19
have drawn any mitigating factors from the circumstances explained within it, and it chose
not to. Even assuming that potential mitigating factors existed that could have been argued
by Banks’s attorney at sentencing, we are not persuaded that there is a reasonable
probability that the result of the proceedings would have been different.
In conclusion, we reject all of Banks’s challenges to his conviction and his sentence.
Affirmed.