Opinion
A22-1063
04-17-2023
Thomas Robert TICHICH, petitioner, Appellant, v. STATE of Minnesota, Respondent.
Stacy L. Bettison, Bettison Law, Minnetonka, Minnesota (for appellant) Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Anna R. Light, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Stacy L. Bettison, Bettison Law, Minnetonka, Minnesota (for appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Anna R. Light, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Larson, Judge; and Klaphake, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
LARSON, Judge
Appellant Thomas Robert Tichich challenges the postconviction court's decision to deny his petition for postconviction relief. We affirm.
FACTS
After a night out drinking in 2016, Y.R., A.D., and appellant went to Y.R.’s home. A.D. was very intoxicated and "passed out" on Y.R.’s couch. Y.R. told appellant that he could sleep on the other couch, and Y.R. went upstairs to sleep. Appellant followed Y.R. upstairs and made a series of unwanted advances toward Y.R., resulting in Y.R. moving to a different bedroom. Y.R. documented the unwanted advances in a series of text messages to her daughter.
After lying in a different bedroom for several minutes, Y.R. decided she wanted appellant to leave her house. Y.R. went downstairs and observed appellant naked "with ... what appeared to be his penis in [A.D.’s] face." At the time, A.D. appeared to be "completely passed out," and lying on her side facing the front of the couch with her knees pulled up. Y.R. observed that appellant was "trying to put [his] penis in her mouth" and "his hips were ... thrusting towards [A.D.’s] face." Y.R. took two photographs in rapid succession before yelling at appellant to get out of her house. Y.R. made appellant leave immediately. A.D. did not awaken during the commotion.
The photographs were admitted into evidence at trial. The first photograph shows appellant naked, facing A.D.’s prone figure and blocking the camera's view of her head, with his left knee on the couch, his pelvis angled toward A.D.’s head, and his right hand in front of his pelvis. The second photograph shows A.D. and appellant in the same position, except appellant's right arm is braced against the arm of the couch next to A.D.’s head.
Y.R. called the police department, and police officers responded to the call. The officers struggled to wake A.D. until they used a pressure-point technique. When A.D. awoke, she was "groggy," "incoherent," and unaware of what had happened.
Y.R. transported A.D. to the Hennepin County Medical Center and medical personnel conducted a sexual-assault examination. A sexual assault nurse examiner (SANE nurse) swabbed A.D.’s perioral area and the inside of A.D.’s mouth. A Bureau of Criminal Apprehension scientist (BCA scientist) tested the swabs and found DNA that matched appellant's profile on the perioral swab, but not the oral swab.
Perioral swabs take samples from around the outside of the mouth, excluding the lips.
Respondent State of Minnesota charged appellant by amended complaint with completed third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(d) (2016), attempted third-degree criminal sexual conduct, Minn. Stat. § 609.17, subd. 1 (2016), completed fourth-degree criminal sexual conduct, Minn. Stat. § 609.345, subd. 1(d) (2016), and attempted fourth-degree criminal sexual conduct, Minn. Stat. § 609.17, subd. 1. Prior to trial, the district court dismissed the completed and attempted fourth-degree criminal-sexual-conduct charges.
The legislature recodified Minn. Stat. § 609.344, subd. 1(d) (2016), to Minn. Stat. § 609.344, subd. 1(b) (2022). The provisions have identical language.
At trial, the state called several witnesses, including Y.R., the SANE nurse, and the BCA scientist. Y.R. testified consistently with the facts described above. As relevant here, the SANE nurse testified regarding the collection of the DNA samples. The SANE nurse stated that while collecting the DNA samples, she did not touch A.D.’s lips because the lips do not yield useful evidence due to the "the patient's own saliva and sloughing of cells." The BCA scientist testified as an expert witness. The BCA scientist opined that it was not surprising she did not find male DNA in A.D.’s mouth. The BCA scientist explained that foreign proteins are quickly broken down by digestive enzymes or washed away during ingestion of liquids, with the result that DNA is rarely detected in mouths even when contact was recent. The BCA scientist further testified that DNA may be transferred from one person's skin to another person's skin, which the state relied upon to argue that, notwithstanding the absence of DNA in the victim's mouth, penetration had occurred.
The jury found appellant guilty of completed and attempted third-degree criminal sexual conduct. The district court convicted appellant of completed third-degree criminal sexual conduct, and sentenced appellant to 48 months in prison and a ten-year period of conditional release following confinement.
Trial counsel represented appellant in his direct appeal. There, appellant challenged the sufficiency of evidence and the district court's decision to impose a presumptive-guideline sentence. We affirmed on both grounds. State v. Tichich , A18-1411, 2019 WL 4409394 (Minn. App. Sept. 16, 2019), rev. denied (Minn. Dec. 31, 2019). The supreme court denied review on December 31, 2019.
Appellant filed a petition for postconviction relief on January 18, 2022. Appellant included an affidavit from a forensic scientist, which challenged the SANE nurse's and BCA scientist's trial testimony. Appellant requested an evidentiary hearing and argued he was entitled to a new trial on multiple bases, including: (1) ineffective assistance of trial and appellate counsel claims premised on legally-inconsistent-verdicts and prosecutorial-misconduct arguments and (2) allegations the SANE nurse and BCA scientist testified falsely at trial. The postconviction court summarily denied appellant's petition. The postconviction court determined an evidentiary hearing was unnecessary because the legally inconsistent-verdicts and prosecutorial-misconduct arguments raised purely legal issues and, even if all facts were construed in appellant's favor on the false-testimony claim, appellant would not be entitled to a new trial. The postconviction court found that appellant's petition was statutorily time-barred and Knaffla- barred. The postconviction court then reached the merits of appellant's claims, determining that: (1) even if the SANE nurse and BCA scientist testified falsely, the jury would have found appellant guilty; (2) attempted and completed third-degree criminal-sexual-conduct convictions are not legally inconsistent; and (3) the prosecutor's statements during closing argument were not misconduct.
On appeal, appellant only challenges the district court's decision to deny an evidentiary hearing on his claim that he received ineffective assistance of counsel for failure to raise the legally inconsistent-verdicts argument. But we agree with the district court that this is a legal issue that can be resolved without an evidentiary hearing. See Minn. Stat. § 590.04, subd. 1 (2022) ; Jama v. State , 756 N.W.2d 107, 111 (Minn. App. 2008) ("An evidentiary hearing is not required unless there are material facts in dispute which must be resolved to determine the postconviction claim on its merits.").
Under the Knaffla rule, "once a direct appeal has been taken, all claims raised in the direct appeal and all claims that were known or should have been known but were not raised in the direct appeal are procedurally barred"—subject to certain exceptions. Colbert v. State , 870 N.W.2d 616, 625-26 (Minn. 2015) (citing State v. Knaffla , 309 Minn. 246, 243 N.W.2d 737, 741 (1976) ).
This appeal follows.
ISSUES
I. Was appellant's petition for postconviction relief statutorily time-barred?
II. Is appellant entitled to a new trial due to ineffective assistance of trial or appellate counsel?
III. Is appellant entitled to a new trial due to false testimony during trial?
ANALYSIS
Appellant challenges the postconviction court's decision to deny his petition for postconviction relief. Appellant argues the postconviction court erred because: (1) his petition was not time-barred; (2) trial and appellate counsel's assistance was ineffective because he failed to raise the legally inconsistent-verdicts and prosecutorial-misconduct arguments before the trial court and on direct appeal; and (3) false testimony warrants a new trial.
A defendant may seek postconviction relief "to vacate and set aside the judgment ... or grant a new trial ... or make other disposition as may be appropriate." Minn. Stat. § 590.01, subd. 1 (2022). Allegations in a postconviction petition must be "more than argumentative assertions without factual support." Matakis v. State , 862 N.W.2d 33, 37 (Minn. 2015) (quotation omitted). A petitioner seeking postconviction relief has the burden of establishing by "a fair preponderance of the evidence" the facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2022).
In reviewing a postconviction court's decision, we determine "whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Zenanko v. State , 688 N.W.2d 861, 864 (Minn. 2004) (quoting Sanders v. State , 628 N.W.2d 597, 600 (Minn. 2001) ). We "review a postconviction court's determinations of legal issues de novo." Pederson v. State , 692 N.W.2d 452, 459 (Minn. 2005).
With this standard in mind, we consider appellant's claims in turn.
I.
Appellant and the state agree that the postconviction court erred when it determined appellant's postconviction petition was statutorily time-barred. We agree.
Under Minn. Stat. § 590.01, subd. 4(a) (2022), "No petition for postconviction relief may be filed more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court's disposition of petitioner's direct appeal." If a petitioner files a direct appeal, subject to certain exceptions, they may not file a petition for postconviction relief more than two years after their conviction is "final." Moua v. State , 778 N.W.2d 286, 288 (Minn. 2010). As relevant to this case, a petitioner's conviction is "final" 90 days after the Minnesota Supreme Court denies review of our decision on direct appeal. See Berkovitz v. State , 826 N.W.2d 203, 207 (Minn. 2013) ("When an appellant does not file a petition for certiorari with the Supreme Court of the United States following [the Minnesota Supreme Court's] decision on direct appeal, the appellant's conviction becomes ‘final’ 90 days after [the Minnesota Supreme Court's] decision ....").
Here, appellant filed a direct appeal. Tichich , 2019 WL 4409394 at *1. We affirmed appellant's conviction, and the supreme court denied review on December 31, 2019. Appellant's conviction became final 90 days after the supreme court denied review, on March 30, 2020, meaning appellant needed to file his postconviction petition before March 30, 2022, to comply with Minn. Stat. § 590.01, subd. 4(a). See Berkovitz , 826 N.W.2d at 207.
Appellant filed a petition for postconviction relief on January 18, 2022, well within the two-year limit. Therefore, the postconviction court erred when it dismissed appellant's petition on the basis that it was statutorily time-barred, and we proceed to consider appellant's additional arguments.
II.
Appellant claims the postconviction court erred when it determined his trial and appellate counsel rendered effective assistance. An ineffective-assistance-of-counsel claim involves mixed questions of law and fact, which we review de novo. State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003). "An ineffective assistance of counsel claim is an alleged violation of the right to reasonably effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution." Id. (citing Strickland v. Washington , 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ); see also U.S. Const. amends. VI, XIV ; Minn. Const. art. I, § 6. We analyze ineffective-assistance-of-counsel claims under the two-prong Strickland test. Rhodes , 657 N.W.2d at 842. A defendant must show that: (1) his counsel's performance fell below an objective standard of reasonableness (performance prong) and (2) there is a reasonable probability that, but for counsel's errors, the result would have been different (prejudice prong). Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987). We evaluate ineffective-assistance-of-trial-counsel and appellate-counsel claims using the same standard. Swenson v. State , 426 N.W.2d 237, 239-40 (Minn. App. 1988). "A court may address the two prongs of the test in any order and may dispose of the claim on one prong without analyzing the other." Schleicher v. State , 718 N.W.2d 440, 447 (Minn. 2006).
Under the performance prong, "To act within an objective standard of reasonableness, an attorney must provide his or her client with the representation that an attorney exercising the customary skills and diligence ... [that] a reasonably competent attorney would perform under similar circumstances." State v. Gustafson , 610 N.W.2d 314, 320 (Minn. 2000) (quotation omitted). A strong presumption exists "that a counsel's performance falls within the wide range of reasonable professional assistance." State v. Jones , 392 N.W.2d 224, 236 (Minn. 1986).
Applying the prejudice prong, "a ‘reasonable probability’ means ‘a probability sufficient to undermine confidence in the outcome.’ " Rhodes , 657 N.W.2d at 842 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). Thus, a "defendant must show that counsel's errors ‘actually’ had an adverse effect in that but for the errors the result of the proceeding probably would have been different." Gates , 398 N.W.2d at 562 (citing Strickland , 466 U.S. at 693-94, 104 S.Ct. 2052 ). To analyze the prejudice prong, we consider "the totality of the evidence before the judge or jury in making its determination." Rhodes , 657 N.W.2d at 842.
Here, appellant claims he received ineffective assistance of counsel because: (1) his trial counsel failed to move for a new trial when the jury returned legally inconsistent verdicts; (2) his appellate counsel failed to raise the legally inconsistent-verdicts argument on direct appeal; (3) his trial counsel failed to object to prosecutorial misconduct that occurred during closing argument; and (4) his appellate counsel failed to raise the prosecutorial-misconduct argument on direct appeal. We agree with appellant that his ineffective-assistance-of-counsel claims are not Knaffla -barred. See Jama , 756 N.W.2d at 112-13 (concluding that "where trial and appellate counsel are the same," ineffective-assistance-of-counsel claims are not Knaffla -barred). We consider in turn whether appellant's legally inconsistent-verdicts or prosecutorial-misconduct arguments have merit and, therefore, form a basis for appellant's ineffective-assistance-of-counsel claims. See State v. Dickerson , 777 N.W.2d 529, 535 (Minn. App. 2010) ("[F]ailure to raise meritless claims ... cannot provide the basis for a claim of ineffective assistance.").
We observe that, although appellant raised the ineffective assistance of trial and appellate counsel claims in his petition, the district court analyzed the claims in a footnote and only discussed the legally-inconsistent-verdicts argument. Here, we reach the legally inconsistent-verdicts and prosecutorial-misconduct arguments to the extent they underpin appellant's ineffective-assistance-of-counsel claims because these arguments were properly raised in the petition. The district court did determine that, as independent bases for a new trial, appellant's legally inconsistent-verdicts and prosecutorial-misconduct arguments were Knaffla barred. Because appellant's properly raised ineffective-assistance-of-counsel claims require us to assess the legally inconsistent-verdicts and prosecutorial-misconduct arguments, we do not separately analyze those arguments under Knaffla .
A. Ineffective assistance of counsel – legally inconsistent verdicts
Appellant first claims that he received ineffective assistance of counsel because his trial counsel failed to move for a new trial after the jury returned legally inconsistent verdicts and his appellate counsel failed to raise the issue on direct appeal. Appellant premises this claim on his argument that the district court erred when it convicted him of completed third-degree criminal sexual conduct because the jury's guilty verdict for that offense is legally inconsistent with the jury's guilty verdict for attempted third-degree criminal sexual conduct. "Whether verdicts are legally inconsistent is a question of law, which we review de novo." Steward v. State , 950 N.W.2d 750, 755 (Minn. 2020).
"Convicting a defendant ... after a jury renders legally inconsistent verdicts is an error." Id. To evaluate whether two verdicts are legally inconsistent, we must consider the elements of the challenged offenses. See id. at 755-56. "Verdicts are legally inconsistent only when proof of the elements of one offense negates a necessary element of another offense." Id. at 755 (quotation omitted). We conclude the language in both statutes plainly sets forth the elements of these offenses and, when applying the plain language, the verdicts are legally consistent. See State v. Pakhnyuk , 926 N.W.2d 914, 920 (Minn. 2019) ("The plain language of the statute controls when the meaning of the statute is unambiguous.").
Here, for the jury to find appellant guilty of completed third-degree criminal sexual conduct, the state needed to prove: (1) appellant knew or had reason to know that A.D. was physically helpless and (2) he intentionally engaged in sexual penetration of A.D. Minn. Stat. § 609.344, subd. 1(d) ; see also State v. Khalil , 956 N.W.2d 627, 632 (Minn. 2021) (discussing the elements of Minn. Stat. § 609.344, subd. 1(d) ); State v. Wenthe , 865 N.W.2d 293, 302 (Minn. 2015) ("Generally, criminal sexual conduct offenses require only an intent to sexually penetrate ...."). For a jury to find appellant guilty of attempted third-degree criminal sexual conduct, the state needed to prove: (1) appellant's "intent to commit" the elements of a completed third-degree criminal sexual conduct and (2) that he took a "substantial step toward" doing so. Minn. Stat. § 609.17, subd. 1.
Comparing the governing statutes, the elements of completed third-degree criminal sexual conduct do not negate the elements of attempted third-degree criminal sexual conduct. The inverse is also true; the elements of attempted third-degree criminal sexual conduct do not negate the elements of completed third-degree criminal sexual conduct. Moreover, logically, there is nothing inconsistent with a person intending to commit third-degree criminal sexual conduct and then moving on to complete the crime.
Appellant disagrees, arguing that Minnesota caselaw adds a tacit third element to attempt—that the underlying substantive crime is not completed—which completed third-degree criminal sexual conduct directly negates. To support his argument, appellant cites State v. Dumas , in which the supreme court defined attempt as "an overt act or acts done with intent to commit the particular crime, and tending, but failing , to accomplish it." 118 Minn. 77, 136 N.W. 311, 313 (1912) (emphasis added). But the supreme court in Dumas interpreted an older version of the attempt statute, which stated: "An act done with intent to commit a crime, and tending, but failing , to accomplish it , is an attempt to commit that crime." Id. (quoting Minn. Rev. Laws § 4771 (1905)). The legislature removed the "but failing, to accomplish it" language from the attempt statute in 1963. Minn. Stat. § 609.17, amended by 1963 Minn. Laws. ch. 753, art. I, at 1198. Thus, the legislature abrogated pre-1963 caselaw interpreting the attempt statute to require proof that the underlying crime was not completed.
Appellant also argues that Minn. Stat. § 609.17 ’s legislative history shows the legislature did not intend to change the statute's meaning when it removed the "but failing, to accomplish it" language. We do not reach this issue because we conclude that Minn. Stat. § 609.17 is unambiguous. State v. Kirby , 899 N.W.2d 485, 492 (Minn. 2017) ("[L]egislative history is relevant only if the statute is ambiguous.").
Appellant nevertheless argues that Minnesota courts have continued to require proof of non-completion even after the 1963 statutory modification. To support this argument, appellant relies on State v. Noggle , 881 N.W.2d 545 (Minn. 2016), and State v. Lewandowski , 443 N.W.2d 551 (Minn. App. 1989). But neither case requires this court to read elements into the attempt statute that are not there. See, e.g. , State v. Vasko , 889 N.W.2d 551, 557 (Minn. 2017) ("We will not read into a statute a provision that the legislature has omitted, either purposely or inadvertently." (quoting Reiter v. Kiffmeyer , 721 N.W.2d 908, 911 (Minn. 2006) )).
In Noggle , the supreme court held that a conviction for attempted third-degree criminal sexual conduct did not trigger a ten-year conditional-release penalty set forth in Minn. Stat. § 609.3455, subd. 6 (2014). 881 N.W.2d at 550-51. In doing so, the supreme court stated that attempt is a "separate crime[ ] with distinct elements" from the completed crime. Id. at 549 (quotation omitted). The supreme court ultimately held the ten-year conditional-release penalty did not apply, because the legislature did not list an attempt to commit an enumerated offense as a crime requiring registration. Id. at 550. Noggle did not address the relationship between the elements of a completed and attempted offense and does not control our analysis.
Lewandowski is similarly distinguishable. There, we decided a defendant who had been convicted and sentenced, but later failed to timely report to begin serving his sentence, was not in constructive custody for purposes of an escape offense. Lewandowski , 443 N.W.2d at 554. In dicta, we stated hypothetically that if the defendant's conduct were to constitute an escape, it would be "a completed escape or nothing[,]" and we clarified that an "attempted" escape was "confined to a defendant in actual custody who struggled to break free or momentarily got away and was quickly recaptured." Id. at 554 n.1. Like Noggle , Lewandowski did not address the relationship between the elements of a completed and attempted offense, and, even if it did, we are not bound by dicta in our prior decisions, see State v. Soukup , 656 N.W.2d 424, 430-31 (Minn. App. 2003), rev. denied (Minn. Apr. 29, 2003).
For these reasons, we conclude that guilty verdicts for completed and attempted third-degree criminal sexual conduct are not legally inconsistent. Because it was not legal error for the district court to enter judgment of conviction for completed third-degree criminal sexual conduct after the jury returned guilty verdicts for both offenses, trial counsel's performance did not fall below an objective standard of reasonableness when he failed to move for a new trial on this issue, and appellate counsel's performance did not fall below an objective standard of reasonableness when he failed to raise the claim on direct appeal. Dickerson , 777 N.W.2d at 535 (concluding "failure to raise meritless claims does not constitute deficient performance"). Therefore, with regard to the legally inconsistent-verdicts argument, appellant has failed to show he received ineffective assistance of trial or appellate counsel.
B. Ineffective assistance of counsel – prosecutorial misconduct
Appellant also claims that he received ineffective assistance of counsel because his trial counsel failed to object to statements that constituted prosecutorial misconduct in closing argument, and because appellate counsel failed to raise the prosecutorial-misconduct issue on direct appeal. To support this claim, appellant argues the prosecutor engaged in misconduct when he: (1) mischaracterized evidence, summarizing Y.R.’s testimony to state that Y.R. saw appellant "raping" A.D., when Y.R. did not use the word "rape"; (2) bolstered Y.R.’s credibility; (3) appealed to the passions of the jury, downplaying evidence appellant admitted and stating it was not "If the gloves don't fit, you must acquit"; and (4) belittled the defense, characterizing "the defense argument" as "what men have been saying to try and escape charges of rape for thousands of years."
Assuming without deciding that the prosecutor's statements were error, and irrespective of whether the failure to object to these statements constituted objectively unreasonable representation, appellant has failed to prove that there is any reasonable probability that the result of the proceeding would have been different but for counsel's alleged errors. See Gates , 398 N.W.2d at 562. Had counsel contemporaneously objected to the state's remarks, and had the district court sustained the objections and instructed the jury to disregard those statements, the evidentiary strength of the state's case was such that there is no reasonable likelihood that the jury would have returned different verdicts.
In evaluating the probability that prosecutorial misconduct affected the jury's verdicts, we must consider (1) the strength of the evidence against appellant; (2) "the pervasiveness of the erroneous conduct"; and (3) whether appellant "had an opportunity to rebut any improper remarks." State v. Peltier , 874 N.W.2d 792, 805-06 (Minn. 2016). Here, strong evidence supported the jury's verdicts, including: Y.R.’s testimony, two pictures of appellant naked with his pelvis in front of A.D.’s face, contemporaneous text messages, DNA evidence, and expert testimony supporting the inference that the DNA collected from A.D.’s face was consistent with appellant penetrating A.D.’s mouth. See Tichich , 2019 WL 4409394 at *2 ("From these facts the only reasonable inference from the circumstances proved is that [appellant] penetrated A.D.’s mouth with his penis."). Further, the alleged misconduct was not pervasive, occurring only during closing arguments, and appellant had the opportunity to respond to most of the alleged misconduct in his own closing remarks. On this record, we cannot conclude that there is a reasonable likelihood that, absent the prosecutor's remarks, the jury's verdicts would have been different.
Because appellant cannot demonstrate that his trial counsel's failure to object to the prosecutor's closing remarks was prejudicial, he has failed to establish that he received ineffective assistance of trial counsel. See Gates , 398 N.W.2d at 562 ("[D]efendant must show that counsel's errors ‘actually’ had an adverse effect" on the verdict."). Further, because any claim in the previous appeal that trial counsel was ineffective for not objecting to the prosecutor's argument would have been meritless for this same reason, appellant's claim of ineffective assistance of appellate counsel similarly fails. See Dickerson , 777 N.W.2d at 535.
Therefore, with regard to the prosecutorial-misconduct argument, appellant has failed to show that he received ineffective assistance of trial or appellate counsel.
III.
Appellant finally argues that the postconviction court abused its discretion when it denied him postconviction relief based on his false-testimony claim. Appellant asserts that the SANE nurse and the BCA scientist testified falsely at trial. Specifically, appellant challenges the SANE nurse's testimony that lip swabs were unreliable evidentiary sources of DNA and the BCA scientist's statements regarding DNA transfer. Appellant included an expert affidavit with his postconviction petition opining that this testimony was false. We review the district court's decision for an abuse of discretion. Gilbert v. State , 982 N.W.2d 763, 770 (Minn. App. 2022), rev. granted (Minn. Feb. 22, 2023).
We recently held that Minnesota courts should apply the Larrison test when addressing a false-testimony claim in a postconviction petition. Id. The Larrison test sets forth three criteria: (1) the court is "satisfied that the testimony given [at trial] by a material witness was false"; (2) "without the testimony, the jury might have reached a different conclusion"; and (3) the defendant "was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after trial." Id. (quoting Martin v. State , 825 N.W.2d 734, 740 (Minn. 2013) ). The first two prongs are compulsory. Opsahl v. State , 710 N.W.2d 776, 782 (Minn. 2006). "The third prong is relevant, but not an ‘absolute condition precedent’ to a new trial." Martin , 825 N.W.2d at 740 (quoting Ferguson v. State , 779 N.W.2d 555, 559 (Minn. 2010) ).
Although the case that established the Larrison test has been overruled, Minnesota courts continue to apply the Larrison test in cases involving witness-recantation and false-testimony claims. Campbell v. State , 916 N.W.2d 502, 506 n.2 (Minn. 2018) ; see also Larrison v. United States , 24 F.2d 82, 87-88 (7th Cir. 1928) (establishing test), overruled by United States v. Mitrione , 357 F.3d 712, 718 (7th Cir. 2004), vacated on other grounds , 543 U.S. 1097, 125 S.Ct. 984, 160 L.Ed.2d 988 (2005).
Here, as in Gilbert , the state argues the postconviction court should have analyzed the false-testimony claim under the standard set forth in Rainer v. State , 566 N.W.2d 692, 695 (Minn. 1997). We conclude that our decision in Gilbert that the postconviction court appropriately applied the Larrison test is dispositive of this issue. See Gilbert , 982 N.W.2d at 769 ("[T]he Larrison standard applies broadly to all allegations of false trial testimony." (quoting Caldwell v. State , 853 N.W.2d 766, 775 (Minn. 2014) )).
Here, the postconviction court determined petitioner's false-testimony claim failed to satisfy the Larrison test. We discern no abuse of discretion in the postconviction court's decision to deny appellant's postconviction petition on this ground. Applying the first Larrison criterion, we concluded in Gilbert that "false testimony is established if a trial witness credibly recants her trial testimony or makes credible posttrial statements that materially contradict her trial testimony; it may also be established through other credible evidence that a witness testified dishonestly at trial." Gilbert , 982 N.W.2d at 770. But "a statement that merely contradicts earlier testimony, evidence of a witness's general unreliability, and a witness's failure to give a full explanation of her trial testimony are insufficient to establish false trial testimony." Id.
The postconviction court also determined that appellant's false-testimony claim was Knaffla barred. Because we conclude the postconviction court did not abuse its discretion when it dismissed the false-testimony claim on the merits, we need not reach the Knaffla issue.
Here, like in Gilbert , neither the SANE nurse nor the BCA scientist have recanted their trial testimony. See id. And neither has made a posttrial statement that contradicted their trial testimony. See id. Further, as the postconviction court found, appellant's expert's affidavit did not directly contradict the testimony. To support her claim that lip swabs provide good evidentiary samples, appellant's expert cited a study which found that only 15% of swabs from the lips and the perioral area led to the identification of a person of interest. But that study did not differentiate swabs to the lips and swabs to the perioral area. And the principal criticism appellant's expert directed at the BCA scientist was merely that her testimony was irrelevant. This evidence is insufficient to meet the first Larrison criterion.
The result is the same under the second Larrison criterion. There, we evaluate "whether the petitioner has demonstrated that without the [false] testimony, the jury might have reached a different conclusion." State v. Turnage , 729 N.W.2d 593, 598-99 (Minn. 2007) (quotation omitted). The question is not "whether the evidence was sufficient to convict the defendant in the absence of the [false] testimony," rather we must assess "whether the jury might have found the defendant not guilty." Id.
Here, we agree with the postconviction court that the strength of the state's case was such that the jury would still have found the defendant guilty without the challenged testimony. The jury heard Y.R.’s testimony, viewed two pictures of appellant naked with his pelvis in front of A.D.’s face, read contemporaneous text messages between Y.R. and her daughter, and learned that appellant's DNA appeared in A.D.’s perioral region. Thus, the jury would not have rendered a different verdict even if it had not heard the allegedly false testimony.
For these reasons, we conclude the postconviction court did not abuse its discretion when it denied appellant's postconviction petition based on the false-testimony claim because appellant failed to meet the requirements of the Larrison test.
DECISION
The postconviction court erred when it determined appellant's postconviction petition was statutorily time-barred. But the postconviction court did not abuse its discretion when it denied appellant's petition for postconviction relief.