                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2200

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Jeffrey Nicholas Aase,
                                      Appellant

                            Filed February 17, 2015
                                    Affirmed
                                 Stauber, Judge
                       Concurring specially, Minge, Judge,

                            Wright County District Court
                              File No. 86-CR-11-270

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General,
St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Buffalo, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie L. Nelson, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and

Minge, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges his conviction for criminal sexual conduct, arguing that his

trial counsel had a personal conflict of interest that denied him effective assistance of

counsel. Because any conflict arose after trial was complete and appellant cannot show

that the trial outcome would have been different without the claimed deficient

performance, we affirm.

                                          FACTS

       Appellant Jeffrey Nicholas Aase was charged and tried on six counts of second-

degree criminal sexual conduct involving his minor stepdaughters. The victims testified

that Aase touched their vaginal areas and breasts while they would give him back rubs.

Aase claimed the victims fabricated their statements because they did not like his strict

parenting. Aase retained private trial counsel. Four days before trial and without

informing Aase, trial counsel applied for a position at the Wright County Attorney’s

Office. During jury deliberations in Aase’s case, trial counsel had lunch with the

prosecutor, informed the prosecutor of his job application, and the prosecutor wished him

“good luck.” The jury found Aase guilty on all counts.

       Approximately 80 candidates applied for the assistant county attorney position.

About two weeks after trial, trial counsel and seven others were interviewed. Following a

second interview five days later, trial counsel was offered and accepted the position.

Trial counsel began employment with the county attorney’s office roughly one month




                                              2
later. After contacting the Minnesota Board of Professional Responsibility, trial counsel

informed Aase of his new position and that he could not represent him at sentencing.

       Aase subsequently filed a motion for a new trial, claiming trial counsel had a

conflict of interest during his trial. The district court held an evidentiary hearing and

determined that trial counsel did not have a conflict of interest until he accepted the

position post trial and that trial counsel zealously represented Aase during trial. The

evidentiary hearing focused on establishing the time frame of trial counsel’s job

application and acceptance.

       Aase moved for a downward departure at sentencing. The district court denied

this request and imposed concurrent sentences of 90 months and 130 months on two of

the charges under Minn. Stat. § 609.343, subd. 1(h)(iii) (2010) (stating that a person is

guilty of second-degree criminal sexual conduct when he engages in sexual contact with

another person with whom he has a significant relationship and who was under 16 years

of age at the time of the contact, and the “sexual abuse involved multiple acts committed

over an extended period of time”). This appeal followed.

                                      DECISION

       Aase claims that he was denied effective assistance of counsel because his trial

counsel applied for an assistant county attorney position before his trial, creating a

personal conflict of interest. Ineffective-assistance-of-counsel claims involve mixed

questions of law and fact, which we review de novo. Carney v. State, 692 N.W.2d 888,

890-91 (Minn. 2005). A criminal defendant has the constitutional right to effective

assistance of counsel, including the right to “representation that is free from conflicts of


                                              3
interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981); State v.

Patterson, 812 N.W.2d 106, 112 (Minn. 2012). A conflict of interest arises if “there is a

significant risk that the representation of [a client] will be materially limited . . . by a

personal interest of the lawyer.” Minn. R. Prof. Conduct 1.7(a)(2).

       The defendant bears the burden of proof when bringing an ineffective-assistance-

of-counsel claim. State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003). The defendant

must “demonstrate that counsel’s representation fell below an objective standard of

reasonableness, and that a reasonable probability exists that the outcome would have

been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.

1998); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984)

(holding that a defendant must show his attorney’s performance was deficient in that it

“fell below an objective standard of reasonableness” and that the deficient performance

deprived the defendant of a fair trial, defined as “a trial whose result is reliable”).

Ineffective-assistance-of-counsel claims are typically reviewed under the Strickland

standard.

       But for cases involving an actual conflict of interest, courts use a modified two-

prong test. When a defendant alleges that counsel’s effectiveness was undermined by a

conflict of interest, but failed to object at trial, he need not demonstrate prejudice if he is

able to show that the conflict of interest actually affected counsel’s representation.

Cuyler v. Sullivan, 446 U.S. at 350, 100 S. Ct. at 1719 (1980) (holding that where the

same attorneys represented appellant’s codefendants, who were later acquitted at separate

trials, the lower court was required to consider whether the conflicting interest adversely


                                                4
affected the appellant). “A defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not demonstrate prejudice in order to

gain relief.” Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting Cuyler, 446

U.S. at 349-50, 100 S. Ct. 1709 at 1719). But cf. State v. Paige, 765 N.W.2d 134, 140-

141 (Minn. App. 2009) (noting that “a defendant who raised no objection at trial must

demonstrate that defense counsel actively represented conflicting interests and [that] this

conflict adversely affected the lawyer’s performance,” but that where a defendant makes

the district court aware of a probable conflict and the court “fails to take adequate steps

to ascertain whether an impermissible conflict exists, the defendant’s conviction must be

reversed without inquiry into prejudice resulting from the alleged conflict”).

       Representation is actually affected if “counsel was influenced in his basic strategic

decisions.” Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 1103 (1981).

Similarly, representation is actually affected if “the advocate’s conflicting obligations

have effectively sealed his lips on crucial matters.” Holloway v. Arkansas, 435 U.S. 475,

490, 98 S. Ct. 1173, 1181 (1978). We note that the Cuyler test for ineffective assistance

of counsel is typically applied to conflict cases involving multiple representation. See,

e.g. Caban v. United States, 281 F.3d 778, 781-82 (8th Circ. 2002) (describing the

development of the Cuyler standard and other ineffective-assistance-of-counsel standards

involving conflicts of interest). Aase urges us to apply the Cuyler standard, but fails to

cite cases that apply Cuyler to a scenario where defense counsel applies for a job in the

prosecuting attorney’s office. We apply Strickland here because any conflict was not




                                              5
known until after trial, and, therefore, Aase could not have objected at trial. However, we

reach the same outcome under both the Strickland and Cuyler tests.

I.     Conflict of interest

       Aase first argues that his trial counsel “became personally conflicted after he

decided to apply for a position with the Wright County Attorney’s Office.” A lawyer is

prohibited from representing a client where there is a concurrent conflict of interest.

Minn. R. Prof. Conduct 1.7. “[W]hen a lawyer has discussions concerning possible

employment with an opponent of the lawyer’s client … such discussions could materially

limit the lawyer’s representation of the client.” Id. at cmt. 10 (emphasis added).

       Aase has not demonstrated the first prong of Strickland: that his trial counsel

rendered unreasonable representation. Trial counsel called his college friend, an assistant

Wright County attorney, to ask about the working environment in the county attorney’s

office, but otherwise did not participate in job discussions or interviews until several

weeks after the conclusion of Aase’s trial. Aase claims that given the adversarial nature

of a felony criminal-sexual-conduct case involving children, trial counsel would not have

wanted to outshine the prosecutor. We are not persuaded. We agree with the district

court’s post-conviction findings: “[a]ny implication that a defense attorney would not

zealously represent a client because s/he was considering a job change, even before s/he

is granted an interview, flies in the face of reason.” An attorney who “rolls over” on his

client is not an attractive candidate.

       Next, applying the Cuyler test, we decline to hold that the act of submitting a job

application, without more, creates a per se conflict. At post-conviction proceedings, the


                                              6
Wright County Attorney testified that over 80 people applied for the position. Trial

counsel did not have his first interview until several weeks after Aase’s trial concluded,

and the trial prosecutor did not directly participate in the hiring process. On these facts,

Aase has failed to show that his trial counsel’s performance was deficient under

Strickland and has not demonstrated an actual—and not just possible—conflict under

Cuyler.

       We note that trial counsel did not inform his client of his job application and

conclude that the best practice is to inform the client and the court of any potential

conflict of interest. Such notice allows the client to make a decision on representation

and the court to perform a proper inquiry into the potential conflict. While we conclude

that counsel’s act of submitting a job application did not create a conflict, a conflict

would have existed at Aase’s sentencing because counsel had accepted the position by

that time. At the point, substitute counsel appeared with Aase. Nonetheless, because of

the importance of competent and loyal counsel, we have, as did the trial court, carefully

scrutinized the entire trial record regarding trial counsel’s performance.

II.    Trial counsel’s performance

       Applying the traditional Strickland standard for reviewing ineffective-assistance-

of-counsel claims, we are also unpersuaded that Aase met his burden of showing that

unreasonable representation affected the outcome of the case. Aase makes several

arguments to demonstrate that his trial counsel did not zealously represent him during

trial due to his conflict and that this failure affected his representation. Following

postconviction proceedings, the district court determined:


                                              7
                      In the present case, the objective facts provide a clear
              picture of zealous representation. [Trial counsel] effective[ly]
              put the State to its burden of proof, vigorously engaging in
              cross-examination, challenging multiple jurors for cause over
              the State’s objection, seeking to limit the evidence the State
              could introduce, advocating for the admission of evidence the
              State sought to exclude, and calling several witnesses on
              [Aase’s] behalf. In fact, the Court recalls admiring the
              manner in which [trial counsel] cross-examined the child
              witnesses in this case. Cross-examination of child witnesses
              is particularly challenging; [trial counsel’s] manner, tone and
              over-all approach was impressive. [Trial counsel] zealously
              advocated for his client throughout the trial; [Aase] does not
              point to any facts that even suggest, much less prove,
              otherwise.

       Aase’s argument that trial counsel conceded too easily to the admission of

relationship evidence is without merit. The state sought to introduce relationship

evidence pretrial, specifically about prior domestic abuse, to explain the victims’

mother’s delay in reporting the abuse to police. Trial counsel stated that he agreed with

the state’s analysis of the relationship evidence under Minn. Stat. § 634.20 (2014). Aase

admits that trial counsel’s “assessment of the evidence was not incorrect” but argues that

it shows deference to the state. But where evidence is admissible, the failure of defense

counsel to object to its admission does not support a claim of ineffective assistance of

counsel. State v. Schweppe, 237 N.W.2d 609, 616 (Minn. 1975). Further, trial counsel

requested a cautionary instruction for the relationship evidence, although not until the

close of trial rather than immediately after the admission of the other-acts evidence. The

timing of this request was a matter of trial strategy, perhaps to avoid drawing attention to

the potentially harmful evidence, and strategy decisions are not subject to ineffective-

counsel claims. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).


                                             8
       Further, trial counsel did object to the proffered evidence that Aase choked or put

his hands around the neck of C.S., the victims’ sibling, arguing it was too prejudicial to

admit in a case involving sexual conduct, and not domestic abuse. Under the Domestic

Abuse Act, the statutory definition of domestic abuse includes criminal sexual conduct.

Minn. Stat. § 518B.01 (2010). Clearly C.S., the victims, and Aase are family members

within the meaning of the statute: they are sisters and a stepfather who reside in the same

household. The relationship evidence would be admissible under caselaw. See State v.

Barnslater, 786 N.W.2d 646, 651 (Minn. App. 2010) (stating that “the admissibility of

relationship evidence is based on whether the accused’s underlying conduct constitutes

domestic abuse . . . not on whether the particular offense that was charged is listed” in the

statute defining domestic abuse), review denied (Minn. Oct. 27, 2010). The objection to

the alleged choking of C.S. was appropriate. C.S. was not a victim in this prosecution

and the evidence was graphic. The district court overruled the objection in a preliminary

ruling but gave trial counsel an opportunity to raise it again, which he did before C.S.

testified, arguing that choking is not similar conduct. For these reasons, we conclude that

trial counsel’s failure to object to the admission of some relationship evidence under

section 634.20 was not unreasonable.

       Trial counsel also called several witnesses and cross-examined many of the state’s

witnesses. While Aase identifies ways in which trial counsel could have performed

differently, our careful review of the trial transcript shows that trial counsel participated

professionally throughout the trial process and that the alleged deficiencies cannot be

shown to be anything other than trial tactics and strategy. Our review of the trial


                                               9
transcript demonstrates that trial counsel zealously represented Aase throughout the

criminal proceeding.

       In sum, Aase has not shown that trial counsel’s performance fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at

2052. And even if appellant could show defective trial counsel performance, he has

failed to meet the second Strickland prong: that but for his trial counsel’s performance,

the trial outcome would have been different. Alternatively, Aase has not shown that trial

counsel’s job application actually affected his performance. See Cuyler, 446 U.S. at 348,

100 S. Ct. at 1718. We therefore conclude that Aase has not met his burden to show that

his trial counsel was ineffective, and he therefore is not entitled to a new trial. The

evidence admitted at trial strongly supported a guilty verdict: the victims testified

consistently and the jury believed their testimony.

       Affirmed.




                                             10
MINGE, Judge (concurring specially)

       I concur in the disposition and in the conclusion that the record indicates that the

conflict of interest of appellant’s trial counsel was not prejudicial. I write separately to

express my disagreement with the point at which the conflict occurred and the legal

framework used to evaluate appellant’s conflict-of-interest claim.

       I submit that the conflict and improper conduct occurred when defense counsel

filed an application for the opening in the office of the Wright County Attorney. See

Minn. R. Prof. Conduct 1.7 2005 cmt. 10 (“[D]iscussions of possible employment . . .

with a law firm representing opponent . . . could materially limit the lawyer’s

representation of the client.”). At the time of application, counsel had an obligation to

disclose his job-seeking effort to his client (appellant) and either obtain his client’s

consent or withdraw from representation. See id. at 1.7(b)(4) (addressing need for consent

or withdrawal). Once one’s defense attorney has applied for a position with the

prosecution, that attorney’s loyalty is subject to question. There is an appearance of

impropriety.

       That the assistant county attorney handling the prosecution was unaware of

defense counsel’s application does not resolve the conflict. Defense counsel did not know

whether opposing courtroom counsel was a part of the hiring process. Most importantly,

defense counsel’s loyalty to appellant, his client, is implicated. The legal system is built

on the trust that a client has in his attorney’s fidelity. Minn. R. Prof. Conduct 1.7 2005

cmt. 1; see State v. 3M Co., 845 N.W.2d 808, 817-18 (Minn. 2014) (in discussing a

waiver of conflict of interest, the court emphasized the need to “‘uphold high ethical

                                           CS-1
standards in the legal profession’”). For the rest of his life, appellant may be haunted with

the suspicion that his attorney had a double agenda, that his attorney’s overriding

personal interest was in obtaining a position with the prosecution, and that he, the client,

may have been acquitted but for this perceived conflict.

       The other point at which I disagree with the majority is the standard for evaluating

appellant’s claim. I would shift the burden of proof to the state to establish that defense

counsel’s divided loyalty did not prejudice appellant. Claims of ineffective assistance of

counsel are generally considered under the Strickland test. Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984). The majority also indicates that in this conflict-of-

interest area, the appropriate approach may be that set forth in the case of Cuyler v.

Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718 (1980), a precursor of Strickland.

With the Cuyler standard, the convicted person only has the burden of showing that the

conflict of interest actually affected the adequacy of legal representation. Id. These tests

are rarely met. Invariably, the courts conclude that the accused failed to establish that the

ineffective assistance was prejudicial or affected actual representation. Demonstrating

actual prejudice or an actual inadequacy in representation is a formidable uphill

challenge. There are many explanations for how a trial lawyer handles the dozens of

discrete decisions in handling a case. They are termed “trial strategy.”

       In a criminal case, the accused is accorded a presumption of innocence and

conviction requires that the prosecution prove every element of the crime beyond a

reasonable doubt. When a fundamental right such as the undivided loyalty of one’s

defense counsel has been compromised, our standard should adhere to the rationale

                                           CS-2
underlying the presumption of innocence and burden of finding proof beyond a

reasonable doubt. In a criminal prosecution, the legal system itself should have the

burden of undertaking a thorough review of the proceedings and establishing that the

representation provided was not compromised. See 3M Co., 845 N.W.2d at 819-20

(recognizing that the party asserting waiver of opportunity to object to legal counsel’s

conflict of interest has burden to showing waiver). The accused should not have the

burden of proving the negative.

      Because of the thorough review that this panel has undertaken of the record and

the conclusions that it has reached, I concur that in this case the legal system properly

found that appellant’s trial attorney provided not only professional, but good quality

criminal-defense representation to appellant and that his conflict of interest did not

adversely affect his performance, let alone the result. For this reason, I would affirm the

conviction despite my differences with the majority.




                                          CS-3
