Thomas Robert Tichich v. State of Minnesota

STATE OF MINNESOTA

IN SUPREME COURT

A22-1063

Court of Appeals Procaccini, J.

Thomas Robert Tichich,

Appellant,

vs. Filed: March 20, 2024
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Stacy L. Bettison, Bettison Law, Minneapolis, Minnesota, for appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Anna R. Light, Adam E. Petras, Assistant
County Attorneys, Minneapolis, Minnesota, for respondent.

James R. Mayer, Minneapolis, Minnesota, for amicus curiae Great North Innocence
Project.

Alicia L. Granse, Shauna Faye Kieffer, Minneapolis, Minnesota, for amicus curiae
Minnesota Association of Criminal Defense Lawyers.

William Ward, State Public Defender, Cathryn Middlebrook, Chief Appellate Public
Defender, Saint Paul, Minnesota, for amicus curiae Minnesota Board of Public Defense.

________________________

1
 SYLLABUS

1. A new expert opinion that merely differs from a trial expert’s opinion does

not establish that the trial expert’s opinion was false, and such a new expert opinion is

properly analyzed as newly discovered evidence under the test set forth in Rainer v. State,

566 N.W.2d 692 (Minn. 1997).

2. Guilty verdicts for third-degree criminal sexual conduct, Minn. Stat.

§ 609.344 (2020), and attempted third-degree criminal sexual conduct, Minn. Stat.

§ 609.17 (2022) (attempt); see Minn. Stat. § 609.344 (underlying crime attempted), are

legally consistent.

Affirmed.

OPINION

PROCACCINI, Justice.

Appellant Thomas Robert Tichich argues that the district court abused its discretion

when it summarily denied his petition for postconviction relief. In 2018, a jury found

Tichich guilty of both third-degree criminal sexual conduct against a physically helpless

person, Minn. Stat. § 609.344, subd. 1(d) (2020),1 and attempted third-degree criminal

sexual conduct, Minn. Stat. § 609.17 (2022) (attempt); see Minn. Stat. § 609.344,

subd. 1(d) (underlying crime attempted). The district court convicted Tichich of

1
Minnesota Statutes section 609.344 was amended in 2021. See Act of June 30,
2021, ch. 11, art. 4, § 18, 2021 Minn. Laws 1st Spec. Sess. 1947, 2044–46. The provision
making it a crime to engage in sexual penetration with a physically helpless person is now
found in Minnesota Statutes section 609.344, subdivision 1(b) (2022). The statute’s
substance did not change.

2
third-degree criminal sexual conduct and sentenced him to 48 months in prison and a

10-year period of conditional release following confinement.

In his petition for postconviction relief, Tichich alleged that two of the State’s expert

witnesses falsely testified and that the jury’s guilty verdicts were legally inconsistent.

Tichich submitted a new expert opinion and other evidence to support his claim that the

State’s witnesses falsely testified. The district court summarily denied Tichich’s petition,

concluding that the guilty verdicts were legally consistent and that Tichich’s

false-testimony claim failed to satisfy the test set forth in Larrison v. United States, 24 F.2d

82, 87–88 (7th Cir. 1928).2 The court of appeals affirmed.

Even if we assume that Tichich’s proffered evidence is true, that evidence fails to

show that the State’s experts falsely testified, and his claim is therefore properly analyzed

under the test for newly discovered evidence set forth in Rainer v. State, 566 N.W.2d 692,

695 (Minn. 1997). Because Tichich’s claim does not satisfy the Rainer test, and the jury’s

verdicts are legally consistent, we affirm the decision of the court of appeals.

FACTS

The following facts were established at trial. In the early morning hours of

December 15, 2016, following a night of drinking at two bars, Tichich, Y.R., and A.D.

went to Y.R.’s nearby home in Northeast Minneapolis. Shortly after arriving, A.D. laid

2
Our court has adopted the Larrison test to determine whether to grant a new trial
based on newly discovered evidence of false testimony. See Sutherlin v. State, 574 N.W.2d
428, 433 (Minn. 1998). Although Larrison was overruled by a subsequent federal
decision, we continue to apply the Larrison test. Opsahl v. State, 677 N.W.2d 414, 422
(Minn. 2004); see Larrison, 24 F.2d at 87–88, overruled by United States v. Mitrione,
357 F.3d 712, 718 (7th Cir. 2004).

3
down on one of two couches in the living room and fell asleep. A.D. testified that, because

of her state of intoxication, she did not recall going to Y.R.’s house and she only vaguely

remembered lying down on the couch. Y.R. directed Tichich to sleep on the other couch

in the living room, and then she went upstairs to her bedroom to sleep. Sometime after

Y.R. fell asleep, she awoke to Tichich in her bed making sexual advances toward her. Y.R.

rejected Tichich’s advances, ordered him to leave her room, and relocated to another

bedroom across the hall. Y.R. ultimately decided that she no longer wanted Tichich in her

home and exited the bedroom to tell him to leave. Y.R. noticed that her bedroom door was

closed and, assuming that Tichich fell asleep in her bedroom, she decided to go downstairs

to let her dog outside.

As Y.R. came down the stairs, she observed Tichich from behind. Tichich was

naked and thrusting his penis toward A.D.’s head as she lay, still unconscious, on the couch.

Y.R. could not see A.D.’s head because Tichich was blocking it with his body. Y.R.

immediately took two photos of the scene with her cellphone, while yelling at Tichich to

leave and threatening to call the police. The photos, introduced as evidence at trial, show

Tichich standing naked with his genital area directly in front of A.D.’s head with his knee

on the couch where A.D.’s head is resting. Tichich gathered his belongings and left Y.R.’s

home. Y.R. then unsuccessfully attempted to wake A.D. and then called the police.

When the police officers arrived at Y.R.’s home, A.D. was still unconscious on the

couch and unresponsive to the officers’ attempts to wake her. When A.D. did wake, she

was disoriented, confused, and had no recollection of any sexual contact with Tichich. She

denied kissing Tichich at any time that evening and denied any consensual sexual contact.

4
 A.D. later underwent a sexual assault examination, conducted by a sexual assault

nurse examiner (“the nurse”). The nurse swabbed the inside of A.D.’s mouth and her

perioral area—the area directly outside of the lips—but the nurse did not directly swab

A.D.’s lips. The Minnesota Bureau of Criminal Apprehension (BCA) performed a DNA

analysis on the swabs and obtained a Y-chromosomal profile from the swabs of A.D.’s

perioral area that matched Tichich’s profile. The BCA did not obtain any Y-chromosomal

profiles from the swabs of the inside of A.D.’s mouth.

The State of Minnesota charged Tichich with third-degree criminal sexual conduct

against a physically helpless person, Minn. Stat. § 609.344, subd. 1(d) (2020), and

attempted third-degree criminal sexual conduct, Minn. Stat. § 609.17 (2022); see Minn.

Stat. § 609.344, subd. 1(d), for his actions against A.D.3

At trial, the State called the nurse to testify. To explain why she did not swab A.D.’s

lips directly, the nurse testified that “[o]ur training is that we do not swab the lips because

it would not yield good evidence. There is so much of the patient’s own saliva and

sloughing of cells it doesn’t yield quality evidence.” She further testified that she “went to

a conference where there was a speaker talking about issues in evidence collection and

discussed that.” The State also called a BCA forensic scientist to testify about DNA

transfer. Relevant here, the forensic scientist testified that “touch DNA”—meaning DNA

3
The State also charged Tichich with fourth-degree criminal sexual conduct, Minn.
Stat. § 609.345, subd. 1(d) (2020), and attempted fourth-degree criminal sexual conduct,
Minn. Stat. § 609.17 (attempt); see Minn. Stat. § 609.345, subd. 1(d) (underlying crime
attempted). The district court dismissed those charges, leaving the counts of attempted and
completed third-degree criminal sexual conduct for trial.

5
collected from an item someone has touched or handled—is usually DNA from the skin

cells of a person’s hand. The forensic scientist also testified that she would not expect to

find the DNA of a person who handled another person’s cellphone for 30 seconds.

The jury found Tichich guilty of both third-degree criminal sexual conduct and

attempted third-degree criminal sexual conduct. The district court only convicted Tichich

of third-degree criminal sexual conduct. The district court neither entered a conviction nor

imposed a sentence for the attempted third-degree criminal sexual conduct count. Tichich

appealed, the court of appeals affirmed his conviction and sentence, and we denied

review. State v. Tichich, No. A18-1411, 2019 WL 4409394 (Minn. App. Sept. 16, 2019),

rev. denied (Minn. Dec. 31, 2019).

Following his direct appeal, Tichich filed a petition for postconviction relief. In his

petition, Tichich alleged that he received ineffective assistance of counsel because his trial

and appellate counsel failed to challenge his guilty verdicts as legally inconsistent. He also

alleged that the nurse and the forensic scientist falsely testified at trial. To support his

false-testimony claim, Tichich submitted the following evidence: (1) an affidavit from a

newly retained expert; (2) copies of three Minnesota court decisions; and (3) the BCA’s

response to a data request.

In the affidavit, Tichich’s new expert opined that both the nurse and the forensic

scientist falsely testified at trial. Regarding the nurse’s testimony, Tichich’s expert

disagreed with the nurse’s assertion that lip swabs do not produce useful DNA evidence.

Tichich’s expert referred to several studies suggesting that useful DNA evidence is

sometimes found from lip swabs. As to the forensic scientist’s testimony, Tichich’s expert

6
criticized the forensic scientist’s use of the term “touch DNA” and her testimony that the

amount of DNA transferred from an individual to an object is affected by the length of time

of the contact. Tichich’s expert cited a study that found a substantial transfer of DNA

occurs at initial contact and that the nature of the contact, either passive contact or friction

contact, will impact the level of transfer. Tichich’s expert also opined that the forensic

scientist’s testimony was “completely irrelevant to this case.”

In addition to the affidavit of his newly retained expert, Tichich submitted a copy

of three Minnesota court decisions—one that raised a false-testimony claim against the

same forensic scientist who testified at Tichich’s trial, challenging her testimony about

DNA transfer, and two that referenced lip swabs. Tichich further submitted the BCA’s

response to a data request, reporting that the BCA received 90 cases from 2015–2017 that

included DNA evidence from samples collected from the lips or mouth area.

The district court summarily denied Tichich’s petition, determining that he could

have raised his claims on direct appeal and that they were therefore procedurally barred by

State v. Knaffla, 243 N.W.2d 737 (1976). The court alternatively denied relief on Tichich’s

false-testimony claim, determining that the test set forth in Larrison was not met. The

court also rejected Tichich’s claims of ineffective assistance of counsel after concluding

that the jury’s guilty verdicts were legally consistent.

Tichich appealed the denial of his petition for postconviction relief. In a

precedential opinion, the court of appeals affirmed the postconviction court’s decision.

Tichich v. State, 989 N.W.2d 692, 701–02, 704 (Minn. App. 2023). We granted Tichich’s

petition for review.

7
 ANALYSIS

Tichich argues that the district court abused its discretion when it denied his request

for an evidentiary hearing based on his claims of newly discovered evidence of false

testimony and ineffective assistance of counsel. “We review the denial of a petition for

postconviction relief, including the petitioner’s request for an evidentiary hearing, for an

abuse of discretion.” Campbell v. State, 916 N.W.2d 502, 506 (Minn. 2018). In doing so,

we review the district court’s “legal conclusions de novo and its findings of fact for clear

error.” Rhodes v. State, 875 N.W.2d 779, 786 (Minn. 2016).

I.

We first address Tichich’s claim that the district court abused its discretion when it

denied his request for an evidentiary hearing based on a claim of newly discovered

evidence of false testimony. A postconviction petitioner is entitled to an evidentiary

hearing “[u]nless the petition and the files and records of the proceeding conclusively show

that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2022). But a

district court “need not hold an evidentiary hearing when the petitioner alleges facts that,

if true, are legally insufficient to entitle him to the requested relief.” Bobo v. State,

820 N.W.2d 511, 516 (Minn. 2012). Because we must determine whether Tichich was

entitled to an evidentiary hearing, we must also identify the legal standard governing the

claim alleged in the petition. See id. at 516–17 (identifying the legal standard governing

the petitioner’s postconviction claim of ineffective assistance of appellate counsel and

concluding that the alleged facts were legally insufficient to satisfy that standard). For the

reasons that follow, we conclude that Tichich’s claim is one of newly discovered evidence,

8
not one of newly discovered evidence of false testimony, and therefore the standard set

forth in Rainer governs. Because Tichich has not alleged facts that, if proven by a fair

preponderance of the evidence, would satisfy the Rainer test, the district court did not abuse

its discretion when it summarily denied Tichich’s claim.

A.

Tichich argues that the newly discovered evidence he submitted in support of his

postconviction petition proves that the nurse and the forensic scientist falsely testified at

trial and thus the Larrison test for newly discovered evidence of false testimony applies to

his claim. See McDonough v. State, 827 N.W.2d 423, 425 n.1 (Minn. 2013) (citing

Larrison, 24 F.2d at 87–88). The State disagrees, arguing that the Rainer test for newly

discovered evidence should apply because the new evidence Tichich submitted does not

render the challenged trial testimony “false.” See Rainer, 566 N.W.2d at 695. We agree

with the State.

We apply the Larrison test to claims of newly discovered evidence of false

testimony. See McDonough, 827 N.W.2d at 425 n.1. We have consistently considered

witness recantation to be newly discovered evidence of false testimony and have therefore

applied the Larrison test in such cases. See, e.g., Opsahl v. State, 677 N.W.2d 414, 422–23

(Minn. 2004) (several witnesses recanted their trial testimony); Ferguson v. State,

779 N.W.2d 555, 559 (Minn. 2010) (witness recanted his trial testimony); Kaiser v. State,

___ N.W.3d ___, No. A22-0749, 2024 WL 1080968, at *5 (Minn. Mar. 13, 2024) (expert

witness “in effect recanted his trial testimony”). But we have not addressed whether the

9
Larrison test applies to unrecanted expert testimony that is challenged by new expert

testimony not presented at trial.

Tichich relies on State v. Caldwell, 322 N.W.2d 574 (Minn. 1982), to support his

contention that all allegations of false testimony, including claims of erroneous scientific

evidence based on new expert testimony, are appropriately considered under Larrison. In

Caldwell, a fingerprint expert testified at trial that a fingerprint found on a significant piece

of evidence “was identical to the known print of [Caldwell’s] right thumb.” 322 N.W.2d

at 580. After Caldwell’s trial, in connection with the prosecution of his alleged accomplice,

three new experts concluded that it was not Caldwell’s fingerprint. Id. at 582. The

prosecutor of the alleged accomplice told the court that “he would ask the jury to disregard

the latent print as a misidentified fingerprint.” Id. We concluded that the fingerprint

expert’s testimony in Caldwell’s trial “was damning—and it was false” and therefore

applied the Larrison test. Id. at 586–87.

This case and Caldwell both involve a “battle of the experts” to some degree, but

Caldwell is distinguishable. In Caldwell, three new experts determined that the challenged

expert’s conclusion (that the fingerprints matched) was false, and the State effectively

conceded that the challenged expert misidentified the fingerprint. The State made no such

concession here, and Tichich submitted the opinion of only one expert who merely

disagreed with and impeached parts of the testimony of the challenged trial experts. For

example, Tichich’s new expert did not dispute that the nurse attended a training on the

efficacy of lip swab evidence or that the training advised the nurse that lip swab evidence

is not useful. Instead, Tichich’s expert criticized the content of the nurse’s training.

10
Similarly, Tichich’s expert criticized the terminology that the forensic scientist used to

discuss DNA transfer, but ultimately concluded that the forensic scientist’s testimony was

irrelevant to the case. These allegations might impeach the testimony and credibility of

the nurse and the forensic scientist, but they do not render those witnesses’ testimony false.

See Pippitt v. State, 737 N.W.2d 221, 227–28 (Minn. 2007).4

In sum, although Larrison continues to be the appropriate test for false testimony,

including cases of witness recantation or admission by the State that a witness falsely

testified, it is not applicable here because the appellant presents a new expert opinion that

merely offers a different view from the expert opinions presented at trial. Without more, a

new and differing expert opinion does not establish that trial testimony was false. Claims

based on such an opinion are appropriately characterized as claims of newly discovered

evidence and are properly analyzed under the Rainer test.

B.

To be entitled to an evidentiary hearing on a claim of newly discovered evidence, a

“petitioner must allege facts that, if proven by a fair preponderance of the evidence, would

satisfy all four prongs from Rainer.” Fort v. State, 829 N.W.2d 78, 82 (Minn. 2013).

Under Rainer, a petitioner is entitled to a new trial based on newly discovered evidence

4
In Pippitt, we applied the Race test, which is another name for the Rainer test, to a
postconviction affidavit that impeached a witness’s trial testimony but did not prove the
testimony false. Pippitt, 737 N.W.2d at 227–28. Compare Race v. State, 417 N.W.2d 264,
266 (Minn. 1987), with Rainer, 566 N.W.2d at 695. We observed that the Larrison test is
inappropriate where, as is the case here, there was no witness recantation, and the new
affidavit “simply provides some evidence that, if admissible, could be used to impeach”
another witness’s trial testimony. Pippitt, 737 N.W.2d at 227–28.

11
if (1) “the evidence was not known to the defendant or his/her counsel at the time of the

trial”; (2) “the evidence could not have been discovered through due diligence before trial”;

(3) “the evidence is not cumulative, impeaching, or doubtful”; and (4) “the evidence would

probably produce an acquittal or a more favorable result.” Rainer, 566 N.W.2d at 695. To

be entitled to relief, a petitioner must establish all four prongs. Andersen v. State,

940 N.W.2d 172, 178 (Minn. 2020).

Tichich’s claim fails on the third and fourth prongs of the Rainer test.5 Tichich’s

claim fails the third prong because the newly discovered evidence serves only to impeach

the nurse’s testimony regarding her training about the efficacy of lip swab evidence and

the forensic scientist’s testimony regarding DNA transfer. See Pippitt, 737 N.W.2d at

227–28. Tichich’s claim also fails the fourth prong. Although Tichich’s new expert

opinion may contradict the testimony of the nurse and the forensic scientist, and arguably

impeaches their credibility, the DNA evidence itself is not contradicted. And the

photographic evidence and eyewitness testimony presented at trial remain unaffected.

Based on the strength of the State’s evidence, the newly discovered evidence would not

“probably produce an acquittal or a more favorable result.” Rainer, 566 N.W.2d at 695.

Accordingly, even if we assume that Tichich’s newly discovered evidence would

be proved by a fair preponderance of the evidence, it would be insufficient to satisfy the

5
Because the third and fourth prongs of the Rainer test are dispositive here, we need
not address whether the evidence satisfies the first or second prongs.

12
Rainer test. We therefore conclude that the district court did not abuse its discretion in

denying Tichich an evidentiary hearing.6

II.

Tichich also argues that his counsel was ineffective for failing to raise the issue of

legally inconsistent verdicts.7 The State disagrees, arguing that guilty verdicts for

completed and attempted third-degree criminal sexual conduct are legally consistent and

therefore Tichich’s counsel was not ineffective. We agree with the State.

A.

To be entitled to an evidentiary hearing based on a claim of ineffective assistance

of counsel, “an appellant must allege facts that, if proven by a fair preponderance of the

evidence, would satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S.

668, 687 (1984).” Chavez-Nelson v. State, 948 N.W.2d 665, 671 (Minn. 2020) (citation

omitted) (internal quotation marks omitted). Under the Strickland test, Tichich must show

that (1) his “counsel’s representation fell below an objective standard of reasonableness”

and that (2) “there is a reasonable probability that, but for counsel’s unprofessional errors,

6
The State argues, and the district court concluded, that Tichich’s newly discovered
evidence claim is procedurally barred under Knaffla. Because we conclude that Tichich’s
claim fails on the merits, we need not decide this issue.
7
Tichich was represented by the same counsel at trial and on direct appeal, and he
argues that his counsel was ineffective at both stages. The State concedes that Tichich’s
claim of ineffective assistance of appellate counsel is not barred by Knaffla because it
could not have been known or raised at the time of his direct appeal. See Onyelobi v. State,
932 N.W.2d 272, 280 (Minn. 2019). But the State argues, and the district court concluded,
that Tichich’s claim related to his trial counsel is Knaffla-barred. We need not decide this
issue because we conclude that Tichich’s claims of ineffective assistance of counsel against
both trial and appellate counsel fail on the merits.

13
the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694;

see Woodard v. State, 994 N.W.2d 272, 277 (Minn. 2023). “We may analyze the

Strickland requirements in either order and may dispose of a claim on one prong without

considering the other.” Lussier v. State, 853 N.W.2d 149, 154 (Minn. 2014).

To determine whether Tichich’s counsel’s representation fell below an objective

standard of reasonableness, we look to the merits of the underlying claim and must decide

whether jury verdicts for third-degree criminal sexual conduct and attempted third-degree

criminal sexual conduct are legally inconsistent.

B.

“Verdicts are legally inconsistent when proof of the elements of one offense negates

a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).

Convicting a defendant after a jury renders legally inconsistent verdicts is an error because

such an inconsistency suggests that the jury’s underlying factual findings are invalid.

Steward v. State, 950 N.W.2d 750, 755 (Minn. 2020); State v. Moore, 481 N.W.2d 355,

359 (Minn. 1992). For example, in State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990), we

held that guilty verdicts for both first-degree premeditated murder and second-degree

manslaughter were legally inconsistent because the first offense required the jury to find

that the death was caused with premeditation and intent, while the second offense required

the jury to find that the death was caused through negligent or reckless conduct. Because

it is impossible to cause another’s death with premeditation and intent and, at the same

time, through negligent or reckless conduct, we concluded that proof of an element of

14
first-degree premeditated murder negates a necessary element of second-degree

manslaughter. Moore, 458 N.W.2d at 94.

Here, to find Tichich guilty of third-degree criminal sexual conduct, the jury needed

to find that Tichich (1) intentionally engaged in sexual penetration with A.D. and (2) knew

or had reason to know that A.D. was physically helpless. Minn. Stat. § 609.344, subd. 1(d)

(2020); see State v. Wenthe, 865 N.W.2d 293, 302 (Minn. 2015) (“Generally, criminal

sexual conduct offenses require only an intent to sexually penetrate, unless additional

mens rea requirements are expressly provided.”). To find Tichich guilty of attempted

third-degree criminal sexual conduct, the jury needed to find that Tichich (1) intended to

commit third-degree criminal sexual conduct and (2) did an act which was a substantial

step toward, and more than preparation for, the commission of the crime. Minn. Stat.

§ 609.17 (2022); see Minn. Stat. § 609.344, subd. 1(d).8

We discern no legal inconsistency between the elements of these offenses. No

necessary element of attempted third-degree criminal sexual conduct negates a necessary

element of third-degree criminal sexual conduct.9 As a result, it was legally consistent for

8
The district court properly instructed the jury on the elements of these offenses.
9
In a joint amicus brief, the Minnesota Board of Public Defense and Minnesota
Association of Criminal Defense Lawyers argue that the two offenses require different and
inconsistent mental states because attempt is a specific-intent crime, while third-degree
criminal sexual conduct is a general-intent crime. See State v. Fleck, 810 N.W.2d 303,
308–09 (Minn. 2012) (discussing the distinction between a specific-intent and
general-intent crime). But the “general intent” required for third-degree criminal sexual
conduct is intent to sexually penetrate, and the “specific intent” required for attempted
third-degree criminal sexual conduct is the intent to commit that crime. Finding intent to
sexually penetrate a victim is not legally inconsistent with also finding intent to commit

15
the jury to find that Tichich both took a substantial step toward completing third-degree

criminal sexual conduct and then completed that crime. We address Tichich’s arguments

to the contrary in turn.

Tichich argues that guilty verdicts for both offenses are legally inconsistent because

they are mutually exclusive, as he could have either completed the crime or attempted to

do so, but not both. Tichich’s argument is founded on an assertion that the jury must find

that the crime was uncompleted to return a guilty verdict for attempt. Tichich relies on our

decision in State v. Noggle, 881 N.W.2d 545 (Minn. 2016), arguing that in Noggle we held

that the “substantial step” element of attempt requires a substantial step toward an

uncompleted crime. Although we clarified in Noggle that a conviction for attempt is not a

violation of the statute defining the underlying completed crime, we did not address the

necessary elements of attempt, and we did not add noncompletion as a necessary element

of attempt. Id. at 549.

Tichich alternatively argues that the attempt statute, Minn. Stat. § 609.17, is

ambiguous and that statutory interpretation of the attempt statute requires the conclusion

that the verdicts are legally inconsistent. “A statute is ambiguous only when the statutory

language is subject to more than one reasonable interpretation.” State v. Fleck, 810 N.W.2d

303, 307 (Minn. 2012). Because Tichich does not point to any specific language in the

attempt statute that is subject to more than one reasonable interpretation, we reject this

argument.

third-degree criminal sexual conduct. See Cole, 542 N.W.2d at 51–52 (“Intent to commit
assault and intent to point a gun are not inconsistent mental states.”).

16
 We emphasize that guilty verdicts are not the same as criminal convictions.

Minnesota law protects defendants against duplicative convictions and sentences for the

same conduct. It remains true that a defendant may be convicted of either a completed

crime or attempt, but not both, for the same conduct committed against the same

victim. Minn. Stat. § 609.04, subd. 1 (2022); see State v. Johnson, 616 N.W.2d 720, 730

(Minn. 2000). And “if a defendant commits multiple offenses against the same victim

during a single behavioral incident,” the district court may impose a sentence for only

one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995); see

Minn. Stat. § 609.035, subd. 1 (2022). Here, although the jury returned guilty verdicts for

both completed and attempted third-degree criminal sexual conduct, Tichich was not

convicted of, or punished for, the attempted third-degree criminal sexual conduct offense.

Because Tichich’s guilty verdicts are legally consistent, his counsel was not

ineffective for failing to argue otherwise. Accordingly, the district court did not abuse its

discretion by summarily denying relief.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

17