author: CADY, Justice.

text:
    Julie DeVall McELROY, Appellant, v. STATE of Iowa and Iowa State University of Science and Technology, Appellees.
    No. 99-1446.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Paige Fiedler of Fiedler & Townsend, P.L.C., Johnston, for appellant.
    Thomas J. Miller, Attorney General, and George A. Carroll and Darci L. Frahm, Assistant Attorneys General, for appellees.
   CADY, Justice.

Julie DeVall McElroy appeals from a jury verdict denying her claim for sexual harassment against the State of Iowa and Iowa State University. She asserts the district court abused its discretion in permitting the defendants to file an untimely answer, improperly excluded evidence as inadmissible hearsay, and erroneously instructed the jury on the elements of sexual harassment. We reverse and remand for a new trial.

I. Background Facts and Proceedings.

Julie DeVall McElroy was enrolled as a graduate student in the Department of Curriculum and Instruction of the College of Education at Iowa State University (ISU). During the 1994-95 academic school year, McElroy was employed as a graduate assistant to Dr. Lynn Glass. Dr. Glass was a tenured professor of education in the Department. In addition to supervising McElroy at work, Dr. Glass served as her academic advisor and instructed her in at least one course. Dr. Glass was a male.

McElroy was primarily responsible for assisting Dr. Glass in organizing the SciL-ink II project. This project was an exchange and relationship-building program between high school students in Russia and the United States. The program culminated with a month-long trip to Moscow, Russia. It was sponsored by ISU. In the beginning of April 1995, McElroy accompanied Dr. Glass, along with fifty Iowa high school students and five Iowa high school teachers, to Moscow for the program. This trip was considered a condition of McElroy’s employment.

Throughout the trip, Dr. Glass sporadically engaged in inappropriate behavior towards McElroy. Dr. Glass arranged for McElroy to share a two-room hotel suite with him for the entire trip. One room contained two beds, while the other room contained the couch, refrigerator, and television. On numerous occasions, Dr. Glass touched McElroy on her hands, arms, and knees, and gave her neck and foot massages. Dr. Glass also kissed McElroy on her forehead and cheeks. In addition, Dr. Glass shared intimate details regarding his sexual life with his wife, as well as other personal sexual experiences. When McEl-roy informed Dr. Glass she was uncomfortable with his behavior and the sleeping arrangements, he became upset and confrontational. McElroy detailed Dr. Glass’s conduct and her feelings in a letter resembling a journal she wrote to her fiancé. During the trip, McElroy slept in the sitting room and Dr. Glass slept in the bedroom.

Approximately two weeks after returning from Russia, McElroy made a sexual harassment complaint. On May 15, 1995, McElroy showed the Department chair, Dr. Ann Thompson, the letter describing her experiences. Additionally, some of McElroy’s complaints predated the Moscow trip, and basically consisted of inappropriate comments. Dr. Thompson notified Noreen Daly, the Dean of the College of Education, of the incidents. Dr. Glass acknowledged his inappropriate behavior to Dr. Thompson and Dean Daly. He was then instructed to have no contact with McElroy. Furthermore, Dr. Thompson removed Dr. Glass from his position as McElroy’s academic advisor and instructor, and reassigned McElroy to work as a graduate assistant for another professor.

On June 29, 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. Jeanne Johnson, an attorney, was appointed by ISU to investigate the complaint. Johnson conducted an extensive investigation and concluded Dr. Glass’s behavior was inappropriate and unprofessional, and violated the university’s policy against sexual harassment. In addition, Johnson concluded Dr. Glass’s conduct created a hostile employment and academic environment, and interfered with McElroy’s academic progress. Johnson made several recommendations to ISU to rectify the situation and prevent further incidents. These recommendations included: eliminating interaction between Dr. Glass and McElroy and any similar personal relationships between Dr. Glass and any other students; sexual harassment training for Dr. Glass and for the faculty, staff, and graduate students in the College of Education; and a one-semester suspension without pay for Dr. Glass. Dean Daly adopted the report and its recommendations, but increased the suspension to a period of one year.

Dr. Martin Jischke, the president of ISU, invoked formal proceedings utilized for dismissal of a tenured faculty member. However, prior to the convening of the faculty committee that would hold the disciplinary hearing, Dr. Glass learned he had terminal colon cancer. Upon Dr. Glass’s request, Dr. Jischke agreed to drop the disciplinary action against Dr. Glass due to his fragile health. McElroy did not contest this decision. Dr. Glass died approximately one year later.

In addition to the prior history of sexual harassment by Dr. Glass, McElroy claimed ISU failed to protect her from continuing harassment by Dr. Glass after she filed the complaint. McElroy alleged Dr. Glass violated Dr. Thompson’s no-eontact directive approximately seven times. Dr. Glass allegedly opened a door for McElroy, said “hello” in the hallway, and entered rooms to speak with McElroy when she was alone. McElroy claims she informed ISU authorities of most of the violations. ISU maintained it responded to each report of any attempt by Dr. Glass to maintain contact with McElroy.

McElroy filed a petition at law against the State and ISU in the district court on November 3, 1997, and an amended petition on November 5, 1997. The defendants were served on November 7. The petition asserted seven counts, which included federal and state employment and education discrimination claims, a violation of 42 U.S.C. § 1983, and assault and battery and negligence claims.

On December 1, 1997, the defendants filed a motion for extension of time to move or plead so they could prepare a motion to dismiss. The defendants subsequently filed an extensive motion to dismiss on December 24, 1997. After McEl-roy agreed to dismiss her 42 U.S.C. § 1983 claim and her assault and battery and negligence claims, the defendants withdrew their motion to dismiss. A uniform scheduling order was entered which set the deadline for filing pleadings for December 10, 1998, and scheduled the trial for February 8, 1999. The trial date was later continued to June 7,1999.

On October 27, 1998, the defendants filed a comprehensive motion for summary judgment. Based on an agreement between the court and counsel, McElroy received an extension of time to file her resistance. McElroy filed her resistance to the summary judgment motion on March 25, 1999. The court denied the motion on May 21,1999.

On May 24, 1999, McElroy notified the defendants they had failed to file an answer to her petition. The defendants immediately filed a motion for leave to file an answer, and attached their answer as an exhibit. McElroy filed a resistance to the motion. She claimed prejudice and lack of good cause.

The district court granted the motion to file an answer on the morning of trial. The court found the defendants demonstrated good cause. Additionally, the court noted the law generally favors a trial on the merits. However, the court struck the affirmative defense of failure to mitigate damages from the answer. The court concluded McElroy would be prejudiced if the defendants were permitted to introduce that defense so late in the proceedings. Nevertheless, the defendants were allowed to present the affirmative defenses of (1) prompt remedial action, (2) exercise of reasonable care to prevent and correct sexually harassing behavior, and (3) failure of plaintiff to take advantage of preventive and corrective opportunities or to otherwise avoid harm.

During the presentation of her case, the district court excluded evidence McElroy attempted to introduce as inadmissible hearsay. First, the court limited the testimony of Lyn Shiffler, a high school teacher at Des Moines Roosevelt High School who worked on the SeiLink II project and went to Russia in April 1995. Shiffler was prevented from testifying to a statement Dr. Glass made while at a pre-trip reception Shiffler hosted in her home for members of the project, and to conversations she had with McElroy in Russia concerning Dr. Glass’s behavior. McElroy made an offer of proof and asserted the proposed testimony was not hearsay because it was not offered to prove its truth and, alternatively, constituted an exception to the hearsay rule.

Second, the district court limited the testimony of Dale Striegle. Striegle was a colleague of McElroy, and was Dr. Glass’s graduate assistant before McElroy. Strie-gle accompanied Dr. Glass to Russia in 1994. The district court excluded testimony concerning complaints Striegle received from other students concerning Dr. Glass’s behavior, as well as sexual comments Dr. Glass had made to Striegle regarding McElroy. McElroy failed to make an offer of proof following Striegle’s testimony, nor did she offer an explanation on the record in an attempt to defeat the defendants’ hearsay objections.

Lastly, the district court excluded portions of Johnson’s investigative report and the letter McElroy wrote to her fiancé while in Russia. Redacted versions of both documents were offered in evidence as exhibits. Witness statements from interviews Johnson conducted were excluded from the report on hearsay grounds. Likewise, statements made by others were excluded from the letter on hearsay grounds. McElroy made offers of proof of the entire investigative report and of the letter.

At the close of the evidence, McElroy objected to several jury instructions. In particular, McElroy objected to one instruction as improperly stating the law on sexual harassment. Additionally, McElroy objected to the court’s refusal to include two of her proposed jury instructions. The court denied the objections.

The jury rendered a verdict in favor of the defendants. McElroy subsequently moved for a directed verdict citing the defendants’ failure to file a timely answer. She also filed a motion for a new trial, alleging the district court erroneously instructed the jury. The district court denied both motions.

McElroy appeals. She claims the district court abused its discretion in allowing the defendants to file a late answer and for excluding her proffered evidence as inadmissible hearsay. She further alleges the district court erred in instructing the jury.

II. Standard of Review.

We review a decision of the district court to permit the filing of an untimely answer for an abuse of discretion. See Wooldridge v. Cent. United Life Ins. Co., 568 N.W.2d 44, 47 (Iowa 1997). Likewise, we review most evidentiary rulings by the district court for an abuse of discretion. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). However, we review hearsay rulings for correction of errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998) (review for errors because hearsay evidence is presumed to be prejudicial). Additionally, we review jury instructions for the correction of errors at law. State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2001).

III. Untimely Answer.

Iowa Rule of Civil Procedure 53(a) provides the defendant must serve an answer “within twenty days after the service of the original notice and petition upon [the defendant].” Iowa R. Civ. P. 53(a); see Iowa R. Civ. P. 105(b) (answer must be served within time limitations delineated in rule 53). However, when a defendant has filed a motion to dismiss and the motion is denied, as in this case, the answer is due within ten days following notice of the district court’s ruling. Iowa R. Civ. P. 105(c); see 71 C.J.S. Pleading § 170, at 223 (2000); 61A Am.Jur.2d Pleading § 232, at 221 (1999) (motion to dismiss for failure to state a claim upon which relief may be granted extends defendants’ time to file an answer). When the defendants failed to answer within the requisite time period, McElroy contends the district court should have found the defendants admitted all of the allegations in her amended petition under rule 72. Iowa R. Civ. P. 72(c); see 71 C.J.S. Pleading § 193, at 242.

Rule 72 describes the proper format of an answer. The answer must specifically admit or deny each allegation or paragraph of the petition and raise any facts that demonstrate any defenses the defendant plans to pursue. Iowa R. Civ. P. 72(a). Moreover, any fact contained in the petition not subsequently denied is deemed admitted, unless one of three exceptions applies. Iowa R. Civ. P. 72(c). None of the exceptions are applicable to this case. See id.

Generally, even after the time to file an answer has expired, the district court may permit a defendant to file a late answer if “good cause” exists. Iowa R. Civ. P. 105(f); see 71 C.J.S. Pleading § 169, at 222 (a rule may grant district court discretion to enlarge time within which an answer may be filed even after the initial time period has expired). Additionally, we observe that Rule 107(a) specifically provides, in pertinent part:

When by these rules ... an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the- failure to act was the result of excusable neglect ....

Iowa R. Civ. P. 107(a) (emphasis added). Thus, these two rules appear to utilize separate standards to apply in determining whether a late answer will be permitted. However, rule 105(f) specifically relates to late answers, while rule 107(a) relates generally to any late filing as well as other untimely acts. Typically, when a general and specific statute cover the same matter, the specific statute governs over any conflict with the general statute. City of Des Moines v. City Dev. Bd., 633 N.W.2d 305, 311 & n. 4 (Iowa 2001). This principle is instructive in our consideration of the two rules, and reveals that “good cause” is the test to usé in determining whether or not a late answer may be filed.

Nevertheless, we believe the “good cause” standard actually subsumes the “excusable neglect” standard. In other words, “good cause” considers the reasons the answer was not timely filed and whether those reasons constitute “excusable neglect.” Therefore, we believe it is pertinent to consider the existence of “excusable neglect” in determining whether “good cause” exists to permit a late answer to be filed.

“Excusable neglect” has been defined as “that neglect which might have been an act of a reasonably prudent person under the circumstances.” 61A Am. Jur.2d Pleading § 235, at 224; see Johnson Bank v. Brandon Apparel Group, Inc., 246 Wis.2d 840, 847, 632 N.W.2d 107, 111 (2001). Thus, if a defendant can assert reasonable grounds for failing to comply with the applicable time requirements, excusable neglect is satisfied. See Johnson Bank, 632 N.W.2d at 111. In determining whether neglect in a certain case is excusable, the court must consider all of the surrounding facts and circumstances of the late filing. Davis v. Immediate Med. Servs., Inc., 80 Ohio St.3d 10, 14, 684 N.E.2d 292, 296 (1997); 61A Am.Jur.2d Pleading § 227, at 219, § 235, at 223; 71 C.J.S. Pleading § 169, at 222.

“Good cause” also considers the impact of the late answer under all of the circumstances. See Millington v. Kuba, 532 N.W.2d 787, 791-92 (Iowa 1995). Thus, another factor to consider in determining “good cause” is whether the plaintiff would suffer prejudice by the filing of the untimely answer. 61A Am.Jur.2d Pleading § 234, at 222. If the proposed answer would substantially change the issues in the case so as to cause unfair surprise to the plaintiff, the court will likely find prejudice. Chao v. City of Waterloo, 346 N.W.2d 822, 825-26 (Iowa 1984); see Lynch v. City of Des Moines, 454 N.W.2d 827, 838 (Iowa 1990); Bennett v. City of Redfield, 446 N.W.2d 467, 475 (Iowa 1989). However, if the proposed answer simply reiterated the theory the defendant had been advancing throughout the litigation, no prejudice will likely be found. Chao, 346 N.W.2d at 826. Furthermore, the court should consider whether the filing of the answer would further the interests of justice. See Lynch, 454 N.W.2d at 838; Meier ex rel. Meier v. Champ’s Sports Bar & Grill, Inc., 241 Wis.2d 605, 628, 623 N.W.2d 94, 105 (2001); 61A Am.Jur.2d Pleading § 233, at 221-22. Another consideration is whether the defendants presented a meritorious defense. See 61A Am.Jur.2d Pleading § 227, at 218; 71 C.J.S. Pleading § 169, at 222.

In reviewing the district court’s decision in this case to permit the filing of the late answer, we must remember the determination rests in the sound discretion of the district court. See Lynch, 454 N.W.2d at 838; Brown v. Guiter, 256 Iowa 671, 675, 128 N.W.2d 896, 899 (1964); In re Cheney’s Estate, 223 Iowa 1076, 1079, 274 N.W. 5, 8 (1937); 61A Am.Jur.2d Pleading § 227, at 218; 71 C.J.S. Pleading § 169, at 222. Accordingly, we will not interfere with the court’s decision absent an abuse of discretion. Brown, 256 Iowa at 675, 128 N.W.2d at 899; 61A Am.Jur.2d Pleading § 235, at 223. We will find an abuse of discretion only when the district court exercised its discretion on clearly untenable grounds or to an extent clearly unreasonable. Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000).

In permitting the defendants to file an untimely answer, the district court appropriately considered both the circumstances surrounding the failure to timely file an answer and the circumstances surrounding the case. Immediately upon learning of their failure to file an answer, the defendants moved for permission to file an answer. At the hearing on the motion, counsel for the defendants explained the failure was an inadvertent oversight attributed to the passage of time following the filing of the motions to dismiss and for summary judgment and the change of attorneys responsible for the case.

The defendants were represented by the State of Iowa Attorney General’s office. The assistant attorney general initially assigned to the case resigned not long after the motion for summary judgment was filed. When two different assistant attorneys general were assigned to defendants’ case in January of 1999, the motion for summary judgment was still pending. Considering the stage of the litigation, the new attorneys assumed an answer had been filed. Moreover, no motion for default had been filed notifying the defendants of their oversight.

The defendants also explained why the defendants’ original attorney did not file an answer. When the defendants filed the motion to dismiss, the time to file an answer had been extended until after the district court entered a ruling on the motion. Yet, the defendants withdrew the motion on February 5, 1998, after McElroy voluntarily dismissed some of her counts. Thus, the district court never entered a ruling, and no entry was made triggering the defendants’ time period within which to file an answer. The defendants contended the original attorney had probably been waiting for the entry, and when it never came, inadvertently neglected to file the answer.

We agree with the district court that the failure to file an answer constituted excusable neglect. See Cent. Nat’l Ins. Co. of Omaha v. Ins. Co. of N. Am., 513 N.W.2d 750, 756 (Iowa 1994). It was an oversight, attributable to a variety of circumstances that rendered the neglect excusable. Thus, we turn to consider the additional factors of good cause.

Once the inadvertence was discovered, the defendants immediately attempted to remedy their mistake. See Mendelsohn v. Weiss, 221 A.D.2d 166, 167, 633 N.Y.S.2d 143, 144 (N.Y.App.Div.1995). Thus, they did not willfully ignore the rules of procedure. Cent. Nat’l Ins. Co. of Omaha, 513 N.W.2d at 756; Mobil Oil Corp. v. Christian Oil & Gas Distribs., Inc., 95 A.D.2d 772, 773, 463 N.Y.S.2d 253, 254 (N.Y.App.Div.1983). Nor were they employing a deliberate tactic to delay the litigation. See Special Prods. Mfg., Inc. v. Douglass, 159 A.D.2d 847, 848, 553 N.Y.S.2d 506, 508 (N.Y.App.Div.1990) (“Intentionally and willfully occasioned delay further militates in favor of denying defendant’s motion.”). On the contrary, the case was fully litigated as if an answer had been on file. See Rasmussen v. Rasmussen, 252 Iowa 414, 422, 107 N.W.2d 114, 119 (1961). The defendants consistently advanced potentially viable meritorious affirmative defenses in good faith during the pre-trial proceedings. Cf. Brown, 256 Iowa at 675, 128 N.W.2d at 899 (in striking amendment, court considered fact that defendant did not press affirmative defense); Special Prods. Mfg., Inc., 553 N.Y.S.2d at 509. Extensive discovery was conducted. Both parties propounded and answered interrogatories. McElroy deposed eleven witnesses. By the time McElroy informed the defendants of their mistake, the district court already ruled on a comprehensive motion for summary judgment and the issues had been fully developed by the parties.

Nevertheless, McElroy argues that the district court abused its discretion due to the inherent prejudice she suffered by not knowing which allegations of the petition the defendants would admit or deny or what affirmative defenses they planned to assert until a few days before trial. However, from our review of this record, we cannot discern any prejudice to McElroy. See Antonious v. Muhammed, 188 A.D.2d 399, 399, 591 N.Y.S.2d 386, 386 (N.Y.App.Div.1992). In their motion for summary judgment, the defendants contested all of the fighting issues raised by McElroy in her petition. In essence, the defendants argued McElroy was unable to satisfy the elements of any of the counts asserted in the petition. Specifically, the defendants claimed McElroy was unable to prove any impact on her academic progress or employment, or any denial of employment opportunities by ISU in retaliation for her complaint. The defendants’ answer simply reiterated the positions they had asserted in their motion for summary judgment. See Chao, 346 N.W.2d at 826. Accordingly, the issues raised in the answer had been previously litigated in the pre-trial proceedings. See 61A Am.Jur.2d Pleading § 344, at 265.

Furthermore, the motion for summary judgment mentioned the affirmative defenses that were subsequently included in the defendants’ answer. The defendants claimed they took prompt and thorough remedial action after the filing of McEl-roy’s initial complaint and after reports by McElroy of further contact by Dr. Glass. In discussing the action ISU took, the defendants also claimed they exercised reasonable care to prevent any sexually harassing behavior. In addition, the defendants suggested McElroy did not take advantage of all of the corrective opportunities provided by ISU by failing to report all of the alleged continuing sexual harassment violations. Moreover, the extensive discovery process revealed to McElroy that these three affirmative defenses would be heavily relied upon by the defendants at trial. Additionally, these were affirmative defenses established by United States Supreme Court and other jurisdictions’ precedent. Consequently, McElroy was sufficiently apprised of the defendants’ proposed defenses. 71 C.J.S. Pleading § 159, at 212.

McElroy further contends she was prejudiced because two of the affirmative defenses did not exist at the time the defendants’ answer was due. The Supreme Court established the latter two affirmative defenses in two opinions it delivered on June 26, 1998. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633, 655 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662, 689 (1998). Yet, even if the defendants had filed a timely answer, they could have sought the court’s permission to amend their answer to include these additional defenses pursuant to Iowa Rule of Civil Procedure 69(d). Iowa R. Civ. P. 69(d); see 61A Am.Jur.2d Pleading § 380, at 299 (discussing Federal Rules of Civil Procedure). Rule 69(d) provides that the court shall freely grant a motion for leave to amend when required by the interests of justice. Iowa R. Civ. P. 69(d). Moreover, federal courts have excused a defendant’s failure to plead an affirmative defense when “the defense is created by a new rule of law following a decision in an unrelated case handed down after the defendant has already filed its answer.” 61A Am.Jur.2d Pleading § 379, at 299 & n. 61. When a defense is unknown or unavailable at the time the defendant is required to answer, the defendant should be permitted to later amend the answer to add the defense. See 71 C.J.S. Pleading § 168, at 221. Furthermore, a defendant may first raise an affirmative defense in a motion for summary judgment as long as the plaintiff is not prejudiced. See 61A Am.Jur.2d Pleading § 378, at 295-98, § 381, at 301.

We think it is also important to note that McElroy tacitly approved of the defendants’ delay in filing an answer. See Bombei v. Schafer, 242 Iowa 619, 626, 47 N.W.2d 842, 846 (1951); City of Des Moines v. Barnes, 237 Iowa 6, 11, 20 N.W.2d 895, 897 (1945). McElroy learned of defendants’ failure to file an answer on February 26, 1999. However, she did not inform the defendants of this mistake until May 24, 1999. Additionally, McElroy never filed a motion for default under Iowa Rule of Civil Procedure 231(b). It was not until after the defendants filed their motion for leave to file an answer that McElroy entered an objection. Thus, McElroy made no effort to enforce the rules of civil procedure until the damage was already done and the answer was already filed. Bombei, 242 Iowa at 626, 47 N.W.2d at 846. This is another factor a court may consider in determining good cause.

We conclude the district court’s decision to permit the late filing in this case furthered the underlying principle of our rules of civil procedure that the justice system favors deciding a case on its merits rather than on procedural grounds. See Cent. Nat’l Ins. Co. of Omaha, 513 N.W.2d at 756; 61A Am.Jur.2d Pleading § 235, at 223. We have previously recognized a liberal interpretation of the time filing periods advances this principle. See Cent. Nat’l Ins. Co. of Omaha, 513 N.W.2d at 756; Fosselman v. Waterloo Cmty. Sch. Dist., 229 N.W.2d 280, 284 (Iowa 1975). The decision to apply a liberal interpretation to this case was within the district court’s discretion. See Brown, 256 Iowa at 675, 128 N.W.2d at 899; In re Cheney’s Estate, 223 Iowa at 1079, 274 N.W. at 8. In exercising its discretion, the district court excluded the affirmative defense of failure to mitigate damages because McElroy would suffer prejudice if it was admitted. We will not second-guess the district court’s discretionary determination that the defendants demonstrated good cause, and McElroy failed to prove prejudice on the other issues raised by the answer. See Meier ex rel. Meier, 623 N.W.2d at 105.

IV. Jury Instructions.

We first address whether the district court erroneously instructed the jury on the elements of the federal sexual-harassment-in-employment claim. The jury was told McElroy was required to “prove all of the following propositions by [a] preponderance of the evidence”:

1. Plaintiff was subjected to harassment in her work environment; and
2. Such conduct was based on plaintiffs gender; and
3. Such conduct was unwelcome; and
4. Such harassment was sufficiently severe or pervasive that a reasonable person would find Plaintiffs work environment to be hostile or abusive.
5. At the time such conduct occurred and as a result of such conduct, Plaintiff believed her work environment to be hostile or abusive; and
6. The harassment affected a term, condition, or privilege of Plaintiffs employment;
7. Plaintiff was damaged by the harassment.

McElroy contends this instruction incorrectly required her to prove the same element twice. She believes that proof of elements 4 and 5 would also satisfy element 6. Specifically, she claims proof that the harassment was so severe or pervasive that it rendered the work environment hostile or abusive would necessarily constitute proof that it altered the conditions of employment.

Under Title VII of the Civil Rights Act of 1964,

It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin....

42 U.S.C.A. § 2000e-2(a)(l) (1994). Thus, a claim under Title VII requires the discrimination to affect the compensation, terms, conditions, or privileges of employment.

It is widely recognized that sexual harassment is a form of sexual discrimination actionable under Title VII. See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988). It is equally recognized that harassment can occur in two related ways. Id.; see Chambers v. Trettco, Inc., 463 Mich. 297, 310, 614 N.W.2d 910, 915 (2000). One type of harassment is linked to the grant or denial of tangible aspects of employment. Lipsett, 864 F.2d at 897. This is known as quid pro quo sexual harassment. Id. Additionally, in 1986, the United States Supreme Court decided the watershed case of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 60 (1986), which held that a sexual harassment case could also be brought under Title VII on the basis of a hostile or abusive work environment. Thus, Title VII is violated when sexual harassment is so “severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. at 2405, 91 L.Ed.2d at 60 (citations omitted).

The concept that a hostile work environment claim is actionable when the sexual harassment is so severe or pervasive as to alter the conditions of employment and create an abusive working environment has been frequently applied by courts since Meritor and is well engrained in the law. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 1509-10, 149 L.Ed.2d 509, 513 (2001). The district court in this case adopted this concept in setting forth the elements of a sexual harassment claim by requiring McElroy to not only establish that the sexual harassment constituted an abusive work environment, but also that the harassment altered the conditions of employment. Although both quid pro quo and hostile working environment sexual harassment claims require discriminatory conduct that affects the conditions of employment, we do not believe a hostile work environment claim requires specific proof of an altered work condition beyond the objective and subjective proof of a hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295, 302 (1993) (sexually objectionable environment must be objectively and subjectively offensive). In fact, to require specific proof would actually be contrary to the rationale responsible for establishing such a claim.

A hostile work environment claim is premised on the concept that sexual harassment can impact the conditions of employment well beyond the denial or granting of economic or tangible benefits. Meritor Sav. Bank, 477 U.S. at 64, 106 S.Ct. at 2404, 91 L.Ed.2d at 58. Title VII covers more than the terms and conditions of employment “in the narrow contractual sense.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201, 206 (1998). Instead, when an employer creates a hostile work environment, employees are forced to “‘run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living....’” Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. at 2405, 91 L.Ed.2d at 59 (citations omitted). The hostile or abusive work environment itself affects a condition of employment because the employee must endure an unreasonably offensive environment or quit working. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990).

Thus, when an employee is exposed to sexual harassment that is so severe or pervasive that it creates an abusive working environment, the sexual harassment necessarily affects a condition of employment. The conditions of employment are altered by the existence of the hostile working environment. This is the very essence of the claim. However, if a court instructs the jury that a plaintiff must not only establish the existence of an abusive working environment but must additionally prove the harassment affected a condition of employment, it is very possible that the jury would view the additional element to require the plaintiff to show the harassment altered some tangible or economic employment benefit. This, of course, is the very antithesis of a claim for sexual harassment based on a hostile work environment. See King v. Bd. of Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537 (7th Cir.1990) (loss of tangible job benefit is not necessary to establish under hostile work environment claims because harassment itself affects the terms or conditions of employment); Bundy v. Jackson, 641 F.2d 934, 943-44 (D.C.Cir.1981); Lynch, 454 N.W.2d at 834.

We conclude the instruction given by the district court in this case, although derived from an accurate statement of the law, was misleading and confusing. When an instruction is confusing or conflicting, we are generally required to reverse. Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000). In this case, the instruction could reasonably be interpreted to require proof of a tangible loss. When both altered conditions of employment and hostile or abusive work environment are included as separate elements of a claim for recovery, it would be reasonable for the jury to conclude that altered conditions mean something other than a hostile or abusive work environment. Under such an interpretation, the instruction was clearly erroneous and prejudicial. Consequently, we are required to reverse.

V. Remaining Issues.

Because we are obligated to remand this case for a new trial, we will briefly consider the remaining issues presented on appeal because they may occur again at the new trial. McElroy claims the district court also erred in refusing to submit two proposed instructions to the jury. She contends the two instructions were necessary to completely and adequately inform the jury on the law of sexual harassment.

The first proposed instruction stated the alleged incidents of offensive conduct must not be judged as isolated events, but in light of the preceding circumstances and the nature of the relationship. We recognize that the evidence presented in a sexual harassment action must not be compartmentalized into individualized incidents, but must be considered in its totality. See Madison v. IBP, Inc., 257 F.3d 780, 793 (8th Cir.2001). However, we find the jury was adequately instructed on this principle. Although the court did not submit the specific instruction proposed by McElroy, it did instruct the jury to consider the alleged offensive conduct in view of all of the circumstances. Additionally, the court specifically instructed the jury to consider the frequency and severity of the conduct, whether the conduct was physically threatening or simply an offensive utterance, and whether the conduct unreasonably interfered with McElroy’s work performance. The United States Supreme Court has pronounced these factors as constituting the “circumstances” for courts to consider in evaluating the totality of the circumstances. Faragher, 524 U.S. at 787-88, 118 S.Ct. at 2283, 141 L.Ed.2d at 676; Harris, 510 U.S. at 23, 114 S.Ct. at 371, 126 L.Ed.2d at 302-03; accord Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir.1999). Furthermore, no instruction told the jury to view the offensive conduct in isolation. Considering the instructions in their entirety, we conclude the underlying theory of McElroy’s proposed instruction was adequately covered. See Beard v. Flying J, Inc., 266 F.3d 792, 801 (8th Cir.2001); Johnson v. Interstate Power Co., 481 N.W.2d 310, 324 (Iowa 1992).

McElroy additionally requested the court to instruct the jury that the mere presence of an employee “who ha[s] engaged in particularly severe sexual harassment can create a hostile working environment.” We believe that in some circumstances the harasser’s mere proximity to the plaintiff may in fact create a hostile work environment. See Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998); Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718 (3d Cir.1997); Ellison v. Brady, 924 F.2d 872, 883 (9th Cir.1991). However, this is not a blanket rule to be applied in every sexual harassment action. Konstantopoulos, 112 F.3d at 718. Instead, this is a factual determination to be made by the jury on a case-by-case basis. Id. at 715. The jury in this case was instructed to take account of all of the circumstances in analyzing the severity and pervasiveness of the conduct. Thus, the jury could have considered Dr. Glass’s presence when determining whether McElroy stated a viable claim. See Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir.1997). Furthermore, during the trial, McElroy suggested the jury should consider Dr. Glass’s presence as creating a hostile work environment. See Beard, 266 F.3d at 800. Under these circumstances, the trial court did not err in refusing the requested instruction.

McElroy also claims the district court improperly excluded evidence of prior out-of-court statements concerning the behavior of Dr. Glass. This evidence included statements contained in the investigative report derived from interviews conducted by the investigator. The district court determined these statements violated the rule against hearsay. McElroy claims the statements were outside the rule against hearsay and admissible to either show McElroy’s state of mind or knowledge and responsive conduct by the defendants.

Iowa Rule of Evidence 801(c) defines hearsay as an out-of-court statement offered for the purpose of proving the truth of the matter asserted. Iowa R. Evid. 801(c); see Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir.1999); State v. Hollins, 397 N.W.2d 701, 705 (Iowa 1986). However, a statement that would ordinarily be deemed hearsay is admissible if it is offered for a non-hearsay purpose that does not depend upon the truth of the facts presented. 7 James A. Adams & Joseph P. Weeg, Iowa Practice § 801.1, at 569, § 801.4, at 578 (1998) [hereinafter Iowa Practice ]; John W. Strong et al., McCormick on Evidence § 246, at 97 (5th ed.1999) [hereinafter McCormick on Evidence ]. For example, the statement may be offered simply to demonstrate it was made, to explain subsequent actions by the listener, or to show notice to or knowledge of the listener. See Barrett, 169 F.3d at 1163 (effect on listener); State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990) (responsive conduct); Roberts v. Newville, 554 N.W.2d 298, 300 (Iowa Ct.App.1996) (discussion of all examples); 7 Iowa Practice § 801.4, at 578-83 (same); McCormick on Evidence § 249, at 102 (same). Although a statement may be purportedly offered for a non-hearsay purpose, the district court must still determine if the party’s true purpose in offering the evidence was in fact to prove the statement’s truth. Hollins, 897 N.W.2d at 705; State v. Martin, 587 N.W.2d 606, 610 (Iowa Ct.App.1998); 7 Iowa Practice § 801.1, at 569. Furthermore, the court must find the statement relevant to the purpose for which it is offered. Mitchell, 450 N.W.2d at 832; Hollins, 397 N.W.2d at 706; 7 Iowa Practice § 801.4, at 581-83. Lastly, if the evidence is admitted, the court must limit its scope to that needed to achieve its purpose. 7 Iowa Practice § 801.4, at 582.

On retrial, the district court should consider whether the excluded evidence has value independent of the truth of the matter asserted in the statement. Generally, out-of-court statements may be relevant in sexual harassment actions to prove either notice or responsive conduct on behalf of the defendant. See Baker v. McDonald’s Corp., 686 F.Supp. 1474, 1478 & n. 10 (S.D.Fla.1987). Furthermore, internal documents relied upon by an employer in making employment decisions in a discrimination case are generally not hearsay because they can be relevant to explain the employer’s conduct. Wolff v. Brown, 128 F.3d 682, 685 (8th Cir.1997).

VI. Conclusion.

Although the district court did not abuse its discretion by permitting the defendants to file an untimely answer, we conclude McElroy was prejudiced by the instruction requiring her to prove the sexual harassment affected a term or condition of her employment. Consequently, we are obligated to reverse and remand for a new trial.

REVERSED AND REMANDED.

All justices concur except LAVORATO, C.J., who takes no part.

      . For the remainder of this opinion, we will refer to ISU and the State collectively as the defendants, as the same counsel represented both entities. Initially, the estate of Dr. Glass was also named as a defendant in this action. However, McElroy subsequently voluntarily dismissed the estate from the lawsuit.

      . The three exceptions found in the rule governing answers are:
      (1) allegations of value or amount of damage,
      (2) averments in a pleading to which no responsive pleading is required or permitted, and (3) facts not previously pleaded that are set forth in pleadings filed subsequent to the seventh day preceding the trial, all of which shall be deemed denied by operation of law.
      Iowa R. Civ. P. 72(c).

      . As a general rule, the Pennsylvania court system ignores the filing of an untimely answer if the plaintiff has not moved for a default judgment. See Francisco v. Ford Motor Co., 397 Pa.Super. 430, 435, 580 A.2d 374, 376 (1990). The rationale supporting this rule is derived from the principle that the plaintiff must not have been prejudiced by the late answer if it did not seek judgment by default.' Id. Despite this rule, the district court still has the discretion to strike an untimely answer. Id. at 378. The plaintiff's failure to file a motion for default is a factor district courts may wish to consider in determining whether a plaintiff has suffered prejudice by the defendant’s delay.


source: Caselaw Access Project

author: PAUL H. ANDERSON Associate Justice.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Harold R. WINGERD, an Attorney at Law of the State of Minnesota.
    No. C3-87-1683.
    Supreme Court of Minnesota.
    Jan. 4, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility and Harold R. Wingerd have entered into a stipulation for discipline following a referee hearing on the Director’s petition for disciplinary action. The referee found that respondent committed professional misconduct warranting public discipline, namely, respondent (1) routinely failed to deposit unearned retainers into his trust account and failed to maintain the required trust account books and records in violation of Minn. R. Prof. Conduct 1.15(a)(2) and (e) and 8.4(c); (2) failed to timely file state and federal income tax returns and to timely file and pay employer withholding tax returns and unemployment returns in violation of Minn. R. Prof. Conduct 8.4(b) and (d); (3) neglected a dissolution matter allowing his client’s spouse to obtain a default judgment against her in violation of Minn. R. Prof. Conduct 1.3.

The parties have entered into a stipulation in which they stipulate that the referee’s findings of fact and conclusions of law are conclusive except as to Referee Finding No. 17, which the parties agree is not critical to the disposition of the matter. The parties recommend that the appropriate discipline is a six-month suspension from the practice of law as recommended by the referee. The parties also recommend that the suspension commence two weeks from the date of this court’s order, and that reinstatement under Rule 18(a)-(e), Rules on Lawyers Professional Responsibility (RLPR) be conditioned on payment of costs and disbursements under Rule 24, RLPR, and compliance with Rule 26, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Harold R. Wingerd is suspended from the practice of law for a period of six months, effective two weeks from the date of this order subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs plus disbursements under Rule 24, RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Samuel M. VAUGHT, an Attorney at Law of the State of Minnesota.
    No. C9-98-1330.
    Supreme Court of Minnesota.
    Jan. 7, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an amended petition for revocation of probation and for further disciplinary action alleging that respondent Samuel M. Vaught has committed professional misconduct warranting public discipline, namely, engaging in a series of conflicts of interest, failing to keep the required trust account books and records, misappropriation, failing to promptly return unearned fees, failing to seek court approval of a wrongful death settlement on behalf of minors and initially failing to cooperate with the discipline system in its investigation of a complaint filed against him in violation of Minn. R. Prof. Conduct 1.4, 1.7(b), 1.15, 1.16(d), 8.4(c) and 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an indefinite suspension with no right to apply for reinstatement for three years from the date of this order and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Samuel M. Vaught is hereby indefinitely suspended from the practice of law with no right to apply for reinstatement for three years from the date of this order. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice.


author: LANCASTER, Justice.

text:
    Shane PIERSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C8-01-1184.
    Supreme Court of Minnesota.
    Jan. 10, 2002.

      Shane Pierson, pro se.
    Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Asst. Ramsey County Attorney, St. Paul, for respondent.
   OPINION

LANCASTER, Justice.

Shane Pierson was convicted of first- and second-degree murder and aggravated robbery for his involvement in the robbery of Raymond Barnett and the murder of Dural Woods. Pierson appealed his first-degree murder conviction to this court, claiming that the evidence presented by the state at trial was insufficient as a matter of law to sustain the conviction. State v. Pierson, 530 N.W.2d 784, 785 (Minn.1995). We rejected Pierson’s argument and affirmed his conviction. Id. at 789-90.

More than five years later, Pierson filed a pro se petition for postconviction relief pursuant to Minn.Stat. §§ 590.01-.06 (2000). His petition sets forth three claims: (1) that there is newly discovered evidence in the form of previously unavailable accomplice testimony; (2) that the trial court improperly admitted Spreigl evidence of his involvement in a prior robbery; and (3) that he was deprived of his constitutional right to effective assistance of appellate counsel. The postconviction court issued an order summarily dismissing Pierson’s petition. This case comes before the court on Pierson’s appeal of the postconviction court’s order. We affirm.

I.

A detailed statement of the facts can be found in Pierson, 530 N.W.2d at 785-87; therefore, we will set out only the facts relevant to this appeal. Shortly before 10 p.m. on October 5, 1993, Barnett and his roommate left King’s Market, located on the corner of Milton Street and Selby Avenue in Saint Paul, Minnesota, and started walking toward their house on Dayton Avenue. En route, they heard voices shouting at them and saw three men running toward them. Barnett and his roommate stopped to talk with the three men — later identified by Barnett as Pierson, Carlos Smith, and Antonius Hudspeth — in front of their house at 911 Dayton. One or two minutes later, Barnett’s roommate went inside, leaving Barnett with Pierson, Smith, and Hudspeth. The three men surrounded Barnett. Smith put a gun to Barnett’s head and told him to get on the ground. Hudspeth urged Smith to shoot Barnett.

Smith then hit Barnett in the forehead with his gun, knocking him out for a couple of seconds. When Barnett regained consciousness, he was facedown on the ground and all three men were going through his pockets and beating him. According to Peter Hajjar, who observed the robbery from across the street, all three men contributed to the beating, kicking him and using what looked like a stick or baseball bat. The men ripped off Barnett’s jeans and took his pager and shoes before heading toward King’s Market on Milton.

Meanwhile, Woods and Michael Kirk-wood were standing outside King’s Market. Kirkwood saw three men he later identified as Pierson, Smith, and Hudspeth running toward him and immediately suspected that he was about to be robbed. According to Kirkwood, he briefly confronted the men and then called out to his friend across the street. As Kirkwood was stepping away from the men toward his Mend, he heard one of them say “jack-move,” a slang term for robbery. Kirk-wood testified that he then saw Smith and Hudspeth lift up Woods’s arms and saw Pierson go through Woods’s pockets. Both Kirkwood and his friend testified that Woods shouted “get off me,” that Smith then shot Woods in the head, and that Smith shot Woods multiple times after he had fallen to the ground. Pierson stood near Woods’s head and watched as Smith fired the shots.

Hajjar offered a slightly different account of the Woods murder. Although his view of the murder scene was partially obstructed at the moment Woods was shot, Hajjar was able to testify that he heard gunshots only one or two seconds after the three men got to the intersection of Milton and Selby.

After the shooting, Pierson, Smith, and Hudspeth laughed, cheered, and howled as they made their way south on Milton to a waiting brown station wagon. Witnesses heard the occupants of the station wagon cheer and laugh as it sped away toward Interstate Highway 94. The station wagon was eventually pulled over by the Saint Paul police near the Riverside exit of 1-94 west, where officers identified Pierson, Smith, Hudspeth, and John Edmondson, the driver of the vehicle. A search of the station wagon uncovered, among other things, Barnett’s pager, one of his shoes, and a baseball bat.

At trial, the state introduced Spreigl evidence of Pierson’s participation in the September 22, 1993, robbery of Jerrold McWilliams. McWilliams testified that a man approached him and put a gun to his head as he was walking after dark near the corner of Grotto Street and Marshall Avenue in Saint Paul. According to McWil-liams, the gunman was then joined by three other men. After the men went through McWilliams’s pockets, the gunman instructed him to remove his jacket, one of them told him to take off his shoes, and one of them took his watch. McWilliams was then pushed to the ground, and the men walked away. McWilliams later identified Pierson as one of the men who robbed him, and he specifically recalled that Pierson had “stuck his hand in my pocket.”

The defense theory at trial was that Pierson did not aid and abet Smith in the murder of Woods. According to the defense, Smith impulsively and spontaneously shot Woods as Pierson, Smith, and Hudspeth left the scene of the Barnett robbery.

The jury returned guilty verdicts on three counts: first-degree murder in violation of Minn.Stat. §§ 609.185(3) (1992), 609.05 (2000); second-degree murder in violation of Minn.Stat. §§ 609.19(2) (1992), 609.05; and aggravated robbery in violation of Minn.Stat. §§ 609.245 (1992), 609.05. Pierson was sentenced to 48 months’ imprisonment on the aggravated robbery conviction and given a consecutive life sentence for first-degree murder.

Pierson appealed, arguing that there was insufficient evidence to sustain his first-degree murder conviction. Pierson, 530 N.W.2d at 785. After reviewing the evidence presented by the state at trial, this court rejected Pierson’s insufficient evidence claim and affirmed his first-degree murder conviction in an opinion dated May 5, 1995. Id. at 789-90.

On December 8, 2000, Pierson filed a pro se petition for postconviction relief pursuant to Minn.Stat. §§ 590.01-.06. Pierson’s petition raises three claims: (1) that he is entitled to a new trial or an evidentiary hearing due to the presence of newly discovered evidence; (2) that the trial court improperly admitted Spreigl evidence of his involvement in the McWilliams robbery; and (3) that his constitutional right to effective assistance of appellate counsel was violated when his appellate counsel failed to raise the newly discovered evidence and Spreigl issues on direct appeal.

The postconviction court summarily dismissed Pierson’s petition. The court identified three reasons to dismiss the newly discovered evidence claim: that the evidence “could have been available to [Pier-son] or his counsel at the time of trial”; that Smith, the source of the new evidence, “is not a credible source”; and that “there is no basis whatsoever to believe that the proposed evidence would create a different result.”

With respect to Pierson’s Spreigl evidence claim, the postconviction court concluded that Pierson could have raised the claim on direct appeal. Because Pierson failed to do so, the court reasoned, he was procedurally barred from having the issue considered on a subsequent petition for postconviction relief. The court also noted that Pierson could have raised the issue himself on direct appeal by filing a supplemental pro se brief.

Finally, as to the ineffective assistance of appellate counsel claim, the court found that Pierson received “excellent assistance of counsel,” and that his counsel could have raised the Spreigl evidence issue on direct appeal had he perceived it to be a meritorious claim.

II.

A petition for postconviction relief is a collateral attack on a conviction that enjoys a presumption of regularity. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000). A postconviction court must hold a hearing on the petition “[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 (2000).

A postconviction court’s findings are reviewed to determine whether there is sufficient evidentiary support in the record. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001); Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). This court affords “great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Dukes, 621 N.W.2d at 251; see State v. Bradford, 618 N.W.2d 782, 794 (Minn.2000). The decisions of a postconviction court will not be disturbed absent an abuse of discretion. Dukes, 621 N.W.2d at 251; Perry v. State, 595 N.W.2d 197, 200 (Minn.1999). Each of Pierson’s claims of error in the postconviction court’s findings must be reviewed under this standard. See Dukes, 621 N.W.2d at 251.

III.

Pierson’s first claim is that he should be granted a new trial or an eviden-tiary hearing to present newly discovered evidence. This evidence takes the form of testimony by Smith, the gunman in the Barnett robbery and Woods murder. Pierson claims to have “discovered” Smith’s testimony upon reading the transcripts from the trial of Edmondson, the driver of the station wagon. The essence of the testimony given by Smith at Edmondson’s trial is as follows: Edmondson drove Pierson, Smith, and Hudspeth to Saint Paul to purchase marijuana on October 5, 1993. According to Smith, Edmondson was unaware that Smith was going to commit a robbery, Edmondson did not know that Smith had a gun, and Smith never discussed the possibility of committing a robbery with Edmondson, Hudspeth, or Pierson. The postconviction court concluded that Smith’s testimony “could have been available to [Pierson] or his counsel at the time of trial,” that Smith “is not a credible source,” and that “there is no basis whatsoever to believe that the proposed evidence would create a different result.”

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant a reopening of the case. State v. Warren, 592 N.W.2d 440, 449 (Minn.1999). Newly discovered evidence can serve as the basis for a new trial only when the petitioner proves that: (1) the evidence was not known to the defendant or counsel at the time of trial; (2) the failure to learn of the evidence prior to trial was not due to a lack of diligence; (3) the evidence is material, not merely impeaching, cumulative, or doubtful; and (4) the evidence will probably produce either an acquittal or a more favorable result. Woodruff v. State, 608 N.W.2d 881, 888 (Minn.2000); Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

Pierson has failed to establish that the substance of Smith’s testimony was unknown to him at the time of his trial. The evidence clearly shows that Pierson and Smith were together throughout the events of October 5, 1993. Thus, Pierson undoubtedly knew that Smith had information regarding Pierson’s involvement in those events.

The fact that Smith may have been unavailable to testify at Pierson’s trial does not change this result. This point is well illustrated by Warren. In that ease, petitioner Warren argued that the testimony of Towle, his accomplice, constituted newly available evidence entitling him to a new trial. Warren, 592 N.W.2d at 449. Warren had subpoenaed Towle to testify at his trial, but Towle invoked the Fifth Amendment due to the charges pending against him. Warren, 592 N.W.2d at 450. After Towle was tried and convicted, he submitted an affidavit in support of Warren’s petition that indicated his willingness to testify. Id. at 446-47. We held that Warren did not “clear the hurdle of showing that the evidence was unknown to him at the time of trial,” even though Towle was unavailable to testify at that time. Id. at 450.

The postconviction court’s finding that Smith is not a credible source also finds ample support in the record. To begin, Smith was convicted of aggravated robbery and first- and second-degree murder in connection with the Barnett robbery and Woods murder. State v. Smith, 541 N.W.2d 584, 586 (Minn.1996). Already serving a life sentence for murder, Smith would have little to lose by providing testimony exculpating his accomplices. Furthermore, on cross-examination by the state at Edmondson’s trial, Smith admitted to having two prior felony convictions for sale of cocaine. Cross-examination also revealed that Smith lied to the police shortly after his arrest when he was asked about Edmondson. Given this background, the postconviction court’s conclusion regarding Smith’s lack of credibility is well founded.

Finally, the addition of Smith’s testimony would probably not change the result reached in Pierson’s trial. The focus of Smith’s testimony was Edmondson’s lack of participation in the October 5, 1993, crimes. The testimony contains only a small quantity of information concerning Pierson’s participation in those events. The portion of Smith’s testimony dealing directly with Pierson reads:

Q: And you discussed with Mr. Edmondson and Mr. Hudspeth and Mr. Pierson what you had planned on doing, didn’t you?
A: No, I did not.

While this evidence is probative of the issue of intent to aid and abet with respect to Edmondson — who remained in the station wagon during the Barnett robbery and Woods murder — it has very little probative value with respect to Pierson. It is clear that Pierson directly participated in the robbery of Barnett and that Smith used a gun during commission of that robbery. In addition, based on the evidence presented at trial, the jury found that Pierson was more than just an innocent bystander in the murder of Woods, a determination that was affirmed by this court on direct appeal. Pierson, 530 N.W.2d at 789-90. In light of this evidence, Smith’s statement that the men never discussed the possibility of committing robbery or murder is insignificant. Thus, we cannot say that the addition of Smith’s testimony would produce an acquittal or a more favorable result, and we hold that the postconviction court did not abuse its discretion in summarily dismissing Pierson’s newly discovered evidence claim.

IV.

Pierson’s second claim is that the trial court violated his right to a fair trial by erroneously admitting Spreigl evidence of his involvement in the McWilliams robbery. The postconviction court concluded that this claim was procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

Any claim known by a defendant but not raised on direct appeal will not be considered on a subsequent petition for postconviction relief. Dukes, 621 N.W.2d at 257; Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. A petitioner is procedurally barred from raising an issue in a postconviction proceeding under this rule if he “knew or should have known about the issue at the time of [direct] appeal.” Sutherlin v. State, 574 N.W.2d 428, 432 (Minn.1998); see Black v. State, 560 N.W.2d 88, 85 (Minn.1997). This procedural bar does not apply if a claim is so novel that its legal basis was not reasonably available at the time the direct appeal was taken or, in limited situations, if fairness so requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Dukes, 621 N.W.2d at 251; Roby v. State, 531 N.W.2d 482, 484 (Minn.1995).

Pierson did not raise his objection to the trial court’s admission of Spreigl evidence on direct appeal. Pierson, 530 N.W.2d at 785. The legal basis for such a claim is not novel. See, e.g., State v. Bolte, 530 N.W.2d 191, 196-99 (Minn.1995) (discussing criminal defendant’s challenge to the admissibility of evidence of defendant’s participation in other crimes); State v. Klotter, 274 Minn. 58, 62-63, 142 N.W.2d 568, 571-72 (1966) (same); State v. Spreigl, 272 Minn. 488, 490-97, 139 N.W.2d 167, 169-73 (1965) (same). As noted by the postconviction court, Pierson could have raised the issue himself on direct appeal by filing a pro se supplemental brief. Furthermore, this is not the type of situation in which fairness requires consideration of Pierson’s claim. We hold that the postcon-viction court did not abuse its discretion in deciding that Pierson’s Spreigl claim is proeedurally barred.

V.

Pierson’s final claim is that he was deprived of his constitutional right to effective assistance of appellate counsel. The basis for this claim is his appellate counsel’s failure to raise the newly discovered evidence and Spreigl evidence issues on direct appeal. The postconviction court found “absolutely no basis in law or fact for this claim.”

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). To establish a claim of ineffective assistance of counsel, a defendant must meet a two-pronged test evaluating deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Dukes, 621 N.W.2d at 252. First, the defendant must show by a preponderance of the evidence that counsel’s performance was so deficient that it fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Dukes, 621 N.W.2d at 252. In State v. Doppler, 590 N.W.2d 627 (Minn.1999), this court explained that “[i]n Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” Id. at 633 (quotation omitted). There is a strong presumption that counsel’s performance “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see Dukes, 621 N.W.2d at 252.

Second, the defendant must show by a preponderance of the evidence that counsel’s deficient performance resulted in prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Dukes, 621 N.W.2d at 252. In the context of a claim of ineffective assistance of appellate counsel, a defendant “must be able to show that absent his appellate counsel’s error, the outcome of his direct appeal would have been different.” Dukes, 621 N.W.2d at 256.

When an appellant and counsel have divergent opinions as to what issues should be raised on appeal, counsel has no duty to include claims that would detract from other more meritorious issues. Hummel, 617 N.W.2d at 566; Sutherlin, 574 N.W.2d at 435. As discussed above, Pierson’s newly discovered evidence claim lacks merit. Thus, his appellate counsel did not provide ineffective assistance of counsel by deciding not to pursue the issue. See Hummel, 617 N.W.2d at 566; Sullivan v. State, 585 N.W.2d 782, 785 (Minn.1998); Sutherlin, 574 N.W.2d at 435.

An analysis of Pierson’s Spreigl claim reveals that it, too, lacks merit and, therefore, appellate counsel did not render ineffective assistance of counsel by choosing to focus on other issues. Under Minn. R. Evid. 404(b), evidence of other crimes, wrongs, or acts is admissible for a number of limited purposes. Trial courts may admit Spreigl evidence if they find that (1) the evidence is clear and convincing that the defendant participated in the Spreigl incident, (2) the Spreigl evidence is relevant and material to the state’s case, and (3) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn.2000); State v. Landin, 472 N.W.2d 854, 859 (Minn.1991). In this case, the state offered evidence of Pierson’s robbery of McWilliams for the purpose of showing intent, modus operan-di, knowledge, and common plan and scheme.

We conclude that Pierson’s participation in the Spreigl incident was established by clear and convincing evidence. The state presented direct evidence of Pierson’s involvement in the McWilliams robbery. McWilliams identified Pierson from a photo lineup as one of the men who robbed him, and testified that it was Pier-son who stuck his hand in his pocket during the robbery.

We also conclude that the Spreigl evidence was relevant and material to the state’s case. “In determining the relevance and materiality of Spreigl evidence, ‘the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi.’ ” State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999) (quoting State v. DeBaere, 356 N.W.2d 301, 305 (Minn.1984)). While the mere fact that the prior crime was of the same generic type as the charged offense usually is not sufficient to establish a close relationship, it is not necessary that the crimes be “signature” crimes. State v. Cogshell, 538 N.W.2d 120, 123 (Minn.1995).

The McWilliams robbery occurred on September 22, 1993, less than two weeks before the Barnett robbery and Woods murder. The location of the McWilliams robbery — near the corner of Grotto and Marshall in Saint Paul — is near the scene of the October 5, 1993, crimes. Finally, the McWilliams robbery, Barnett robbery, and Woods murder share a common modus operandi. In each case, several men surrounded the victim, with one of them placing a gun to the victim’s head. Moreover, Pierson was identified as a “pocketman” in each of the incidents.

The main issue at Pierson’s trial was whether he was an intentional participant in the murder of Woods. The evidence that Pierson intentionally participated in a somewhat similar armed robbery less than two weeks earlier is relevant evidence tending to rebut Pierson’s claim that he did not intentionally participate in the Woods murder. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995).

Finally, we conclude that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice. In weighing the probative value of Spreigl evidence against its prejudicial effect, “the court must consider how crucial the Spreigl evidence is to the state’s case.” Robinson, 604 N.W.2d at 363; see Lynch, 590 N.W.2d at 81.

There was conflicting testimony at trial on the issue of whether Pierson was an active participant in Woods’s murder. Kirkwood testified that Smith and Hud-speth held up Woods’s arms, and that Pierson went through Woods’s pockets just before Smith shot him. The testimony of Kirkwood’s friend, which included the statement that Woods shouted “get off me” just before he was shot, could be construed as comporting with Kirkwood’s version of events. On the other hand, Hajjar stated that Woods was shot just one or two seconds after Pierson, Smith, and Hudspeth reached the corner of Milton and Selby. The sequence of events described by Kirkwood could not have taken place in such a short period of time. Given the conflicting testimony on this point, the Spreigl evidence showing that Pierson acted as a “pocketman” in previous robberies was crucial to the state’s case, and its probative value was not outweighed by its potential for unfair prejudice.

In sum, all of the requirements for admission of Spreigl evidence were met in this case. Thus, Pierson’s appellate counsel did not provide ineffective assistance of counsel by failing to raise this nonmeritorious issue on direct appeal. See Hummel, 617 N.W.2d at 566; Sullivan, 585 N.W.2d at 785; Sutherlin, 574 N.W.2d at 435. The postconviction court’s decision to sum-e marily dismiss this claim is not an abuse of discretion.

Affirmed.

      . Officers found Barnett’s other shoe at the scene of Woods’s murder.

      . In this case, it is unclear from the record whether Pierson subpoenaed Smith to testify at his trial.

      . In contrast, Pierson has not presented any information indicating that Smith would be willing to testify in his defense.


author: GILBERT, Justice. PAGE, Justice

text:
    Moises Vidal ROBLEDO-KINNEY, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C0-01-1096.
    Supreme Court of Minnesota.
    Jan. 10, 2002.

      Melissa Sheridan, Asst. State Public Defender, St. Paul, for appellant.
    Mike Hatch, MN Atty. Gen., Susan Ga-ertner, Ramsey County Atty., Mark Nathan Lystig, Asst. Ramsey County Atty., St. Paul, for respondent.
   OPINION

GILBERT, Justice.

This is an appeal from an order of the Ramsey County District Court denying petitioner Moisés Vidal Robledo-Kinney’s petition for postconviction relief. Roble-do-Kinney (Kinney) was convicted of one count of first-degree murder, two counts of second-degree murder, and one count of kidnapping for the kidnapping and murder of Joshua James Christenson. Kinney appealed and we affirmed. State v. Robledo-Kinney, 615 N.W.2d 25 (Minn.2000).

In his postconviction petition, Kinney argues that he was denied effective assistance of trial counsel based on his attorney advising him not to testify at trial. Specifically, Kinney argues that his attorney advised him that the state would be allowed to impeach Kinney with the statement he made to police during plea negotiations if he testified inconsistently with this statement, and that this advice led Kinney to waive his right to testify. The postconviction court denied Kinney’s petition. We affirm.

The facts set forth below are those relevant to this appeal; a more detailed statement of the facts relating to Kinney’s convictions can be found in Robledo-Kinney, 615 N.W.2d 25. On January 30, 1998, Kinney attended a birthday party in St. Paul at a house where Michael Cleveland lived with his mother. Alex Tovar, Joshua Christenson, and others were also at the party. At some point during the party, Kinney and Christenson got into a fight in Cleveland’s backyard that escalated to a point where Kinney and others wrapped masking tape around Christenson’s head, covering his eyes, nose, and mouth. Christenson was then brought into the house where Kinney and others resumed the beating by hitting, kicking, stomping, and jumping on Christenson. Christenson was also sodomized with a mop handle. Eventually, Christenson was carried outside, placed in the back seat of his car, and stabbed by Tovar with a barbecue fork and large kitchen knife. Kinney then took the knife, stabbed Christenson, and said to Tovar, “I want to let you know that I am with you, with you, with you on this.” Kinney and two other people at the party then took Christenson’s car to the corner of Kent and Jessamine Streets in St. Paul, where it was found the next day with Christenson’s dead body in the back seat.

Kinney was arrested for Christenson’s murder in May 1998 and plea negotiations began shortly thereafter. During the course of these negotiations, Kinney’s attorney assured the state’s attorney that Kinney had not stabbed Christenson. On June 1, 1998 a plea agreement was reached, contingent on Kinney not having been involved in either stabbing or sexually assaulting Christenson. Shortly thereafter on that same day, Kinney informed his attorney that he had in fact both stabbed and sexually assaulted Christen-son and then gave a statement to the police indicating that he had been involved in both of these acts. Based on this information, the state withdrew its offer of the plea agreement.

Kinney moved the district court to specifically enforce the plea agreement claiming detrimental reliance. The court, by order dated November 12, 1998, denied Kinney’s motion based on the mutual mistake of the state’s attorney and Kinney’s attorney as to the extent of Kinney’s involvement in the crime at the time the plea bargain was negotiated. In Conclusion 3 of this order the court stated:

There has been no detriment to [Kinney] as a result of his reliance on the plea agreement. At best, the information obtained during the interview may be used to impeach [Kinney] should he testify at trial inconsistently with his June 1, 1998 statement. [Kinney] does not have the right to offer perjured testimony. Thus, there is no detriment in him being prohibited from doing so.

The parties and the court again discussed Kinney’s June 1, 1998 statement during jury selection on February 10, 1999. Part of this discussion took place off the record. On the record, Kinney’s attorney stated:

I would like to make a record that, should Mr. Kinney choose to testify, the Court indicated that, if that testimony was in any way different from his statement, that he would be impeached with his statement, would open the door.

In response, the court stated:

[I]f Mr. Kinney were to testify to that fact [his statement], I indicated that I thought that opened the door to the statement coming in. It — and I’m trying to be careful about this, because what was occurring in my mind was a little different than what you just stated, * * * is that on that particular issue, I think that if Mr. Kinney raises the issue that “I gave a statement,” * * * it looks like he’s cooperating, and that we’re hiding the ball from the jury and not letting them know what he said. * * * If the defense seeks to use the statement, * * * the substance of the statement then becomes admissible because the defense puts the statement at issue. * * * I think that if you open the door, then the whole statement is fair game. It — in essence, I think it falls under the rule of completeness. You wouldn’t be able to use a portion of the statement without the State, in effect, being able to put in the total statement so that the context would be understood.

(Emphasis added.) Kinney’s attorney then indicated on the record that this was a sufficient explanation of the court’s ruling.

At trial, the defense theory was that although Kinney took part in beating Christenson, he was not involved in the acts that caused his death. However, Kinney did not testify to offer support for this theory. On February 19,1999, immediately before closing arguments, Kinney’s attorney questioned Kinney on the record as to his choice not to testify.

Attorney: Mr. Kinney, we’ve discussed on a number of occasions your option of testifying or not testifying and the ramifications of your testifying; is that right?
Kinney: Yes, sir.
Attorney: And, given all of the facts of this case and the rulings of the Court, is it your choice to testify or to not testify?
Kinney: If I testify my statement is going to be brought up. Right?
Attorney: Right.
Kinney: Then I won’t testify.
Attorney: You understand that you still have a right to do so if you want to?
Kinney: Yes, I do.
Attorney: Okay.
The Court: All right. Mr. Kinney, have you had enough time to talk that over with [your attorney]?
Kinney: Yes, I have, Your Honor.
The Court: And do you need any additional time to discuss that with him before making that decision?
Kinney: No, Your Honor.
The Court: Do you have any questions for me about that?
Kinney: No.

Kinney was subsequently found guilty and convicted on all counts.

On direct appeal, Kinney argued that the district court deprived him of his constitutional right to testify by erroneously ruling that the state could impeach his testimony with the statement he gave to police during plea negotiations. In our decision, we noted that it would have been error for the district court to allow the state to impeach Kinney with this statement but recognized that this was not what in fact happened. Robledo-Kinney, 615 N.W.2d at 30. Instead, the district court never made a final determination as to how, or even if, Kinney’s statement could be used at trial. Id. at 31. We went on to state that “[t]o the extent that Kinney was confused by Conclusion 3 from the November 12, 1998 Order, any such confusion should have been eliminated on February 10, 1999, when use of the June 1, 1998 statement was revisited.” Id. At that time, the district court made it clear that Kinney’s statement was to be treated as if it did not exist at all and that it would be inappropriate for the statement to be used in any fashion. Id. Therefore, “Kinney should have understood that the district court was not going to allow the June 1, 1998 statement to be used for impeachment or any other purpose unless Kinney himself sought to use it to mislead the jury.” Id. We then held that, under the rule of completeness, “the district court did not err when it held that if Kinney brought up the June 1, 1998 statement, it would allow the state to put the entire statement into evidence.” Id. We went on to affirm all of Kinney’s convictions.

After Kinney’s direct appeal, Kinney’s attorney signed an affidavit stating that he advised Kinney that the district court had ruled that the state would be allowed to impeach Kinney with his June 1, 1998 statement if he testified inconsistently with this statement. Kinney also signed an affidavit stating that he wanted to testify as to his version of what happened to Chris-tenson but instead followed his attorney’s advice not to testify. Kinney submitted these affidavits to the district court with his petition for postconviction relief, requesting reversal of his convictions and a new trial based on ineffective assistance of trial counsel. The court denied Kinney’s request, concluding: (1) Kinney waived the issue by not raising it on his direct appeal; (2) Kinney’s claim that he was denied the right to testify because he believed his statement could be used to impeach him had already been decided on his direct appeal; and (3) Kinney’s claim faded to establish either that his counsel’s performance fell below an objective standard of that of a reasonably competent attorney or that the result of the trial would have been different but for his attorney’s alleged errors. This appeal followed.

We review a postconviction proceeding to determine only whether sufficient evidence exists to support the post-conviction court’s findings. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997) (citations omitted). We will not reverse the postconviction court’s decision unless we find that the court abused its discretion. Id.

Once a petitioner has directly appealed a conviction, a postconviction court will generally not consider any claim raised in the direct appeal, or any claim known at the time of the direct appeal, but not raised. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Therefore, postconviction claims of ineffective assistance of trial counsel are generally precluded if known at the time of direct appeal. Black v. State, 560 N.W.2d 83, 85 (Minn.1997). An exception exists when the claim is such that the reviewing court needs additional facts to explain the attorney’s decisions. Id. at 85 n. 1. Accordingly, a claim that requires a court to explore conversations between attorney and client in order to evaluate the claim may be dealt with on a petition for postconviction relief. Dukes, 621 N.W.2d at 255 (citing Robinson, 567 N.W.2d at 495).

In Robinson, we concluded that in order to evaluate the defendant’s allegation that his trial counsel failed to communicate two plea offers, “a court needs to hear testimony from the defendant, his or her trial attorney, and any other witnesses who have knowledge of conversations between the client and the attorney.” 567 N.W.2d at 495. Therefore, we held that because additional factfinding was required, the defendant’s claim of ineffective assistance of counsel based on this allegation was properly raised in a petition for postconviction relief. Id. We recognized that this claim differed from the defendant’s other ineffective assistance of counsel claims in that the other claims could be evaluated on direct appeal based solely on the briefs and the trial court transcript, and without any additional factfinding. Id. Accordingly, we held that the defendant’s other claims of ineffective assistance of counsel were properly dismissed by the postconviction court because they were known at the time of his direct appeal. Id.

Here, Kinney argued in his direct appeal that he was denied the right to testify because the district court ruled that the state could impeach Kinney with his June 1, 1998 statement if he testified. As discussed above, we held in Kinney’s direct appeal that the district court never made such a ruling and that “Kinney should have understood that the district court was not going to allow the June 1, 1998 statement to be used for impeachment or any other purpose unless Kinney himself sought to use it to mislead the jury.” Robledo-Kinney, 615 N.W.2d at 31. Kinney argues that he neither knew nor had any way of knowing that ineffective assistance of counsel might be an issue until our “finding” in his direct appeal that the district court had not ruled that his June 1, 1998 statement would be admissible for impeachment. However, the postconviction court concluded that “[t]he legal and factual basis for the claim of ineffective assistance of counsel was known at the time of the direct appeal and was not raised then” and held that Kinney waived the issue by not raising it in his direct appeal. We must decide if this was an abuse of discretion.

Kinney’s attorney questioned Kinney on the record about his choice not to testify. During this exchange Kinney asked, “If I testify my statement is going to be brought up. Right?” His attorney responded by stating “Right.” This exchange at the end of the trial between Kinney and his attorney is explicitly referenced in Kinney’s affidavit to support his claim that his attorney provided ineffective assistance. Even if we were to accept Kinney’s new argument and assume that it was his attorney, rather than the district court, who led him to waive his right to testify, Kinney’s own support for this alternative argument comes from the record. Therefore, Kinney knew why he waived his right to testify at the time of his direct appeal. Accordingly, we hold that the postconviction court did not abuse its discretion by concluding that the legal and factual basis for Kinney’s ineffective assistance of counsel claim related to his decision not to testify was known at the time of Kinney’s direct appeal.

This does not end our inquiry; we must still consider whether Kinney’s ineffective assistance of counsel claim requires additional factfinding. See Black, 560 N.W.2d at 85 n. 1. The requested postconviction relief in both Robinson and Dukes involved claims that were such that the reviewing court needed facts in addition to those present in the trial court transcript and briefs submitted on direct appeal in order to determine the scope of the attorney-client conversations. See Robinson, 567 N.W.2d at 495; Dukes, 621 N.W.2d at 255. Unlike the claims in Robinson and Dukes, Kinney’s ineffective assistance of counsel claim does not require evaluating additional facts. While Kinney’s affidavit indicates that his attorney advised him not to testify because Kinney’s statement could be used to impeach him at some time other than when he did so on the record, this alleged advice does not differ from the advice his attorney gave Kinney on the record. Any legal and factual basis to support Kinney’s claim of ineffective assistance of counsel was in the trial transcript. Therefore, no additional factfinding is required. Accordingly, we hold that the postconviction court did not abuse its discretion by denying Kinney’s request for postconviction relief on the ground that he waived his claim of ineffective assistance of counsel by not raising it in his direct appeal. See Russell, 562 N.W.2d at 673-74 (holding that the defendant’s ineffective assistance of counsel claim was precluded where the defendant failed to raise it on direct appeal). Since this ground alone supports the postconviction court’s denial of Kinney’s requested relief, we need not consider the other grounds found by the postconviction court to support its decision. See Robinson, 567 N.W.2d at 494.

Affirmed.

PAGE, Justice

(concurring).

I concur in the result. I write separately to add that Kinney’s claim of ineffective assistance of counsel fails even if he is not barred from raising the claim on a petition for postconviction relief. To establish a claim of ineffective assistance of counsel, a criminal defendant must demonstrate (1) that his counsel’s representation fell below an objective standard of reasonableness and (2) a reasonable probability that the outcome would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Ture, 632 N.W.2d 621, 632 (Minn.2001). In light of the evidence presented at trial, Kinney cannot establish that his testimony would have produced a different result.

      . This discussion arose in the context of Kinney's attorney's effort to get the state to enter into a stipulation informing the jury that Kinney had given a statement to police, but that the statement’s contents were inadmissible.

      . In such a case, the best procedure is to raise the ineffective assistance of counsel claim in a petition for postconviction relief before appeal. Id. at 85 n. 1. Nevertheless, we have recognized that ineffective assistance of counsel claims requiring additional factfinding may be properly raised in a postconviction petition after the direct appeal, even if they were known at the time of the defendant's direct appeal. Dukes, 621 N.W.2d at 255; Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997).