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This opinion is nonprecedential except as provided by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
A22-1030

State of Minnesota,
Respondent,

vs.

John Lee Littlejohn,
Appellant.

Filed May 22, 2023
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-21-6846

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Publ ic Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Bryan, Judge; and Hooten,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, s erving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal , appellant argues that he was denied effective assistanc e of
counsel when his attorney, in a written closing argument, argued that the district court
should find appellant guilty of criminal sexual conduct in the fifth degree. Because the
record is insufficient to determine whether appellant acquiesced to this concession, we
affirm appellant’s conviction. This opinion does not prevent a ppellant from pursuing a
claim of ineffective assistance of counsel in a petition for postconviction relief.
FACTS
Respondent State of Minnesota charged appellant John Lee Littlejohn with criminal
sexual conduct in the s econd degree. During plea negotiations, t he state offered to argue
for a stay of imposition in exchange for a plea to second -degree criminal sexual conduct.
Littlejohn did not agree. Instead, he offered to plead guilty to fifth-degree criminal sexual
conduct. The s tate declined that counteroffer, and the parties proceeded via a stipulated -
evidence trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 3.
Littlejohn waived certain trial rights and stipulated to the evidence that the district
court would review, including a video recording of the victim’s interview at CornerHouse.
The parties submitted written closing arguments. The state summarized the exhibits and
argued th at th e evidence established each element of the charged offense beyond a
reasonable doubt . Littlejohn’s counsel also submitted a written closing argument to the
district court. In the written argument, defense counsel conceded that the victim was
credible, st ating that “the child is credible because she is the alleged victim and her
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statements are not hearsay .” Littlejohn’s c ounsel asked the court to find Littlejohn not
guilty of the charged second-degree offense and suggested that the district court find him
guilty of fifth-degree criminal sexual conduct instead, even though the state had not
charged Littlejohn with that offense.1
In its oral findings, the district court noted that “the defense also agrees that [victim]
was credible; that her report in the C ornerHouse video was credible and believable.” The
district court found Littlejohn guilty of the charged second -degree offense , stayed
imposition of the sentence, required Littlejohn to serve 120 days in the county jail, and
placed Littlejohn on probation for five years. This appeal follows.
DECISION
Littlejohn argues that he is entitled to a new trial because he was denied effective
assistance of counsel when his attorney argued that the district court should find him guilty
of fifth -degree criminal sexual conduct . Because the record is insufficient to determine
whether appellant acquiesced to this concession, we affirm Littlejohn’s conviction.
A criminal defendan t is constitutionally guaranteed the right to effective assistance
of counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6; Strickland v. Washington ,
466 U.S. 668, 686 (1984); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016). Generally,
to prevail on a claim of ineffective assistance of counsel , “the defendant must show that

1 Specifically, counsel made the following request: “The Defendant asks the Court to
review the evidence and find that the evidence is sufficient to sustain a charge of Criminal
Sexual Conduct i n the Fifth Degree .” Counsel for Littlejohn then referenced the version
of the fifth -degree criminal sexual conduct statute in effect at the time of the closing
argument. Minn. Stat. § 609.3451 (2021 Supp.).
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counsel’s performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland , 466 U.S. at 687; see also State v. Rhodes , 657 N.W.2d 823, 842
(Minn. 2003) (applying Strickland). However, when counsel concede s guilt without the
defendant’s consent, as Littlejohn alleges occurred in this case, c ounsel’s performance is
deficient, and prejudice is presumed. State v. Prtine , 784 N.W.2d 303, 317- 18 (Minn.
2010) (Prtine I). When presented with such arguments, reviewing courts first determine
whether defense counsel m ade a concession of guilt . State v. Luby, 904 N.W.2d 453, 457
(Minn. 2017). Second, courts next determine whether the defendant “ acquiesced in that
concession.” Id. (quotation omitted). “When . . . there is no evidence of express consent,
[courts] look at the entire record to determine if the defendant acquiesced in his counsel’s
strategy.” Id. at 459 (quotation omitted). “Acquiescence may be implied in certain
circumstances, such as (1) when defense counsel uses the concession strategy throughout
trial without objection from the defendant, or (2) when the concession was an
understandable strategy and the defendant was present, unders tood a concession was being
made, but failed to object.” Id. (quotation omitted). An evidentiary hearing may be
necessary to determine acquiescence , see i d., in part because “wh ether it is an
understandable trial strategy to concede guilt depends on whether it would be objectively
reasonable to do so, given the facts and circumstances of the particular case .” State v.
Prtine, 799 N.W.2d 594, 599 (Minn. 2011) (Prtine II).
When a claim of ineffective assistance requires examination of evidence outside the
trial record or additional fact -finding, it is appropriate to proceed with a postconviction
petition. Andersen v. State , 830 N.W.2d 1, 10 (Minn. 2013). “Generally, an ineffective
5
assistance of counsel claim should be raised in a postconviction petiti on for relief, rather
than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). Appellate
courts may decline to address the merits of an ineffective -assistance claim if the record is
insufficient. Id.
In this case, Littlejohn was charged with second-degree criminal sexual conduct. In
written closing argument, d efense counsel conceded that “the child is credible .” Defense
counsel also conceded that Littlejohn was guilty of fifth- degree criminal sexual conduct,
asking the district court to “find that the evidence is sufficient to sustain a charge of
Criminal Sexual Conduct in the Fifth Degree.” The parties agree that the only pertinent
difference between the elements of the charged second-degree offense and the elements of
the uncharged fifth- degree offense referenced by defense counsel relates to the age s of
Littlejohn and the victim, 2 and the stipulated evidence clearly established the age of both
individuals. The state agrees that Littlejohn’s defense counsel conceded his guilt.
We next consider whether Littlejohn acquiesced to the concession of guilt. On this
point, the state argues that the trial record is “undeveloped” and “[a] remand for fact -
finding regarding attorney- client communications is therefore necessary before a decision
can be made on the merits of [Littlejohn’s] ineffective-assistance-of-counsel claim.” After

2 We note that since the beginning of the date range for the charged offense, the Minnesota
Legislature has twice amended the elements of fifth-degree criminal sexual conduct,
including amendments that took effect on August 1, 2019. See 2019 Minn. Laws 1st Spec.
Sess. ch. 5, art. 4, § 9, at 991; 2021 Minn. Laws 1st Spec. Sess. ch. 11, art. 4, § 20, at 2049-
50. Given the arguments as presented to us, we need not address whether there are any
pertinent differences other than the age s of Littlejohn or the vict im or whether the
differences in the statutory provisions impact any analysis of counsel’s concession.
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reviewing the trial record presented on appeal, we agree that the record does not contain
sufficient facts for this court to determine whether it would be “objectively reasonable” to
concede guilt, Prtine II, 799 N.W.2d at 599, and we decline to consider his claims further
in this direct appeal. Littlejohn’s right to assert ineffective -assistance-of-counsel claims
and develop the factual record through a future postconviction petition is preserved .
Affirmed.