Moses v. State

• Decision Date: 05 December 2022
• Docket Number: A22-0452
• Parties: Marcel Moses, petitioner, Appellant, v. State of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

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Marcel Moses, petitioner, Appellant, v. State of Minnesota, Respondent.

No. A22-0452

Court of Appeals of Minnesota

December 5, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Hennepin County District Court File No. 27-CR-18-20397

Max A Keller, Keller Law Offices, Minneapolis, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Smith, Tracy M., Judge; and Wheelock, Judge.

WORKE Judge

Appellant challenges the district court's denial of postconviction relief, arguing that he received ineffective assistance of trial counsel and that the evidence was insufficient. We affirm.

FACTS

On August 11, 2018, 12-year-old K.R.-G. was at her aunt S.G.'s house watching her cousin while her aunt went to work. Her uncle D.N. stayed home to have a barbecue with friends, including appellant Marcel Moses. K.R.-G. knew some of D.N.'s friends, but she did not know Moses.

D.N. and his friends stayed outside while K.R.-G. stayed inside the house. At some point, Moses went inside the house and initiated conversation with K.R.-G. According to K.R.-G., Moses sat on the couch by her and kissed her. He then stood up, "pulled out his penis," and "put [it] in [her] mouth." Moses left and told K.R-G., "It was between us." K.R.-G. started crying and called S.G. S.G. stated that when she arrived, K.R.-G. told her that "the one in the pink [shirt]" touched her. S.G. identified Moses as the only person wearing a pink shirt and she attacked him with a broom. S.G. then called the police.

On August 14, 2018, K.R.-G. participated in a CornerHouse interview. K.R.-G. stated that Moses asked her how old she was and if she had a boyfriend, and she ignored him. He then kissed her, put his tongue in her mouth, put his "thing" in her mouth, and "unbutton[ed]" her top and "put his hand in [her] shirt." K.R.-G. stated that one of D.N.'s friends was in the bathroom while this happened, and Moses "hurried up" when he heard this person exit the bathroom. In describing Moses, K.R.-G. stated, "I know . . . he had a tattoo on his face" "[bec]ause on his picture [that my auntie showed me yesterday] he had a tattoo on his forehead." The interviewer asked K.R.-G. if she saw a tattoo on him when she saw him at her aunt's house, and K.R.-G. said, "I dunno."

In February 2019, Moses went to trial on a first-degree criminal-sexual-conduct charge. K.R.-G. testified about the assault, and relevant portions of the CornerHouse interview were admitted into evidence. On cross-examination, Moses's attorney asked K.R.-G. if she remembered saying that "the person who did this had a tattoo on their forehead." K.R.-G. replied that she did not remember saying that. Moses's attorney then asked: "How do you know that it was Mr. Moses if you don't know whether he even had a tattoo on his forehead?" She replied: "I don't know." Moses's attorney asked: "But he doesn't have a tattoo on his forehead?" She replied: "I never said he did have one." On redirect, the prosecutor asked K.R.-G. if Moses was the person who assaulted her, and she replied, "Yep."

A forensic nurse examiner testified that she swabbed areas on Moses's body, including his mouth, penile shaft, penis head, scrotum, and pubic bone. The swabs were tested for serology, the detection and identification of bodily fluids. Bodily fluid was detected on swabs from Moses's penile shaft and pubic bone. A DNA analyst testified that the bodily fluids on the swabs could have possibly been "urine," "sweat," or "fecal matter," but it is a higher likelihood that it was human saliva. There was no detection of fluid on the swabs of Moses's penis head and scrotum. There was no semen detected on any swab from Moses. A forensic DNA analyst testified that DNA on Moses's pubic-bone swab contained a mixture of three contributors. The major contributor was Moses; the minor contributors could not be interpreted.

K.R.-G.'s mouth had been swabbed, and the analyst did not detect any semen on the swab. The swab from K.R.-G.'s mouth did have a "Y chromosome DNA profile . . . [that] matche[d] the Y chromosome DNA profile obtained from [Moses]," meaning that "neither [Moses] nor any of his male paternal relatives [could] be excluded as a contributor to this DNA profile." The DNA analyst testified that, in the general United States population, the Y chromosome could have a frequency of 1 in 699 individuals, and among African American individuals, it could be 1 in 187. On cross-examination, Moses's attorney pointed out that the analysis did not compare the frequency of this "Y-STR profile . . . against the frequency in a Kenyan population." Evidence showed that all the men who were at the barbecue are Kenyan.

Moses testified on his behalf and denied the allegations. The jury found Moses guilty of first-degree criminal sexual conduct-penetration or contact with a person under the age of 13 and the actor is more than 36 months older. The district court sentenced Moses to 108 months in prison.

In July 2019, Moses filed a notice of appeal, challenging the sufficiency of the evidence and the effectiveness of his trial attorney. He moved this court to stay the appeal to pursue postconviction relief, and this court granted the motion. In April 2020, Moses filed a petition for postconviction relief. He then moved to continue the postconviction proceedings at least six times, mainly to secure a DNA expert to review the evidence. In October 2021, this court dismissed Moses's direct appeal because it had been pending for 18 months and Moses had failed to meet this court's deadline to file an amended postconviction petition or request an extension.

In November 2021, Moses filed an amended petition for postconviction relief, arguing that his trial attorney was ineffective for his handling of the DNA evidence. The district court denied Moses's petition without an evidentiary hearing. This appeal followed.

DECISION

Moses argues that the evidence was insufficient to sustain his conviction and that he received ineffective assistance of trial counsel. He also challenges the sufficiency of the evidence in his pro se supplemental brief. We must first determine whether the insufficient-evidence claim is properly before us.

Moses filed a direct appeal and intended to challenge the sufficiency of the evidence. However, we dismissed the appeal. Moses filed an amended postconviction petition challenging the effectiveness of his trial counsel, but he did not challenge the sufficiency of the evidence. He now appeals the denial of postconviction relief.

The supreme court has stated that a postconviction petitioner "who merely files a direct appeal, but whose claims do not receive actual appellate review" because the appeal is dismissed on procedural grounds, is entitled to review on a postconviction appeal. See Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996). But the issues should be raised in a postconviction petition. See State v. Olson, 609 N.W.2d 293, 299 (Minn.App. 2000) (stating that when direct appeal is dismissed on procedural grounds, a postconviction petitioner may raise substantive issues in a postconviction appeal), rev. denied (Minn. July 25, 2000); see also Powers v. State, 731 N.W.2d 499, 502 (Minn. 2007) (declining to consider postconviction argument not raised in district court); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that reviewing court must generally consider only issues presented and considered below).

Although Moses did not specifically challenge the sufficiency of the evidence in his amended postconviction petition, we will consider the claim on appeal for several reasons. First, Moses's insufficient-evidence claim has not yet received appellate review. Second, both parties briefed the issue. See State v. Thompson, 937 N.W.2d 418, 421-22 n.2 (Minn. 2020) (stating that appellate court may review issue not considered by district court when interests of justice so require, review would not unfairly surprise a party because the parties briefed the issue, and the dispute involves an issue of law). Finally, Moses's ineffective-assistance-of-counsel and insufficient-evidence claims are interwoven. Because Moses claims that had his attorney been effective, the evidence would be insufficient to sustain his conviction, we begin our review with the ineffective-assistance-of-counsel claim.

Ineffective assistance of counsel

Moses argues that his trial attorney was ineffective because of the way he cross-examined K.R.-G. about the face tattoo and how he handled the DNA evidence. In its order denying postconviction relief, the district court concluded that Moses's complaints amounted to challenges to trial strategy, which is generally not reviewable.

This court reviews the denial of postconviction relief for an abuse of discretion. Davis v. State, 784 N.W.2d 387, 390 (Minn. 2010). "A court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011).

Ineffective-assistance-of-counsel claims are reviewed de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To prove an ineffective-assistance-of-trial-counsel claim, Moses must show that his counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors," the result would have been different. See Petersen v. State, 937 N.W.2d 136, 139-40 (Minn. 2019) (quoting Strickland v. Washington, ...