This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Jacob Hernandez,



Filed July 3, 2001


G. Barry Anderson, Judge


Polk County District Court

File No. K297001119



Mike Hatch, State Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Wayne H. Swanson, Polk County Attorney, 101 Crookston Professional Center, 223 East Seventh Street, Crookston, MN  56716-1498 (for respondent)


John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, 1042 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55105 (for appellant)


            Considered and decided by Robert Schumacher, Presiding Judge, G. Barry Anderson, Judge, and Daniel Foley, Judge.*

U N P U B L I S H E D  O P I N I O N


            Appellant, convicted of first-degree burglary, third and fourth degree criminal sexual conduct, and misdemeanor theft, appeals the denial of his postconviction petition without an evidentiary hearing, arguing that (1) the state made an inadequate effort to locate the victims in the case as required under Minn. R. Evid 804(b)(5), and (2) there is newly discovered evidence revealing the victims’ sexual proclivities, which would have affected the outcome of the case.  We affirm.


On August 12, 1997, K.B., D.B., and their two minor children were staying at a motel in East Grand Forks.  At about 3:00 a.m., K.B. called the police because there was someone in her motel room performing oral sex on her husband, D.B.  The police arrived shortly after receiving the call and, when entering the motel room, found appellant Jacob Delacruz Hernandez, Jr., pinned to the floor by D.B.  The police asked D.B. what happened; D.B. explained that appellant apparently climbed through a window and began to perform oral sex on him while he was sleeping.  When D.B. realized that this person was not his wife, he became angry and assaulted appellant.  After placing appellant under arrest, the police found D.B.’s wallet on the floor where appellant had been pinned.  There was no money in the wallet although D.B. claimed that there had been between $100 to $200 in his wallet the previous evening.  Police found approximately $100 on appellant’s person.  Appellant told police the money belonged to a friend, but could not remember his friend’s name. 

Both D.B. and K. B. gave statements to police the following morning.  Appellant, initially telling police that he arrived at the motel room to sell drugs to K.B. and D.B., later stated that he was a male prostitute and came to the motel to engage in group sex with K.B. and D.B.

Prior to trial, the district court granted the state’s motion to allow the introduction of oral and taped statements of K.B. and D.B., whose whereabouts were unknown.  The court admitted certain oral statements as excited utterances pursuant to Minn. R. Evid. 803(2) and admitted the taped statements of K.B and D.B. after concluding that the alleged victims were unavailable within the meaning of Minn. R. Evid. 804(b)(5).

A jury found appellant guilty of first-degree burglary, third and fourth degree criminal sexual conduct, and misdemeanor theft.  The district court found appellant to be a dangerous offender and sentenced him to an executed term of 240 months in prison, the statutory maximum, on the first-degree burglary conviction.  See Minn. Stat. § 609.152, subd. 2 (1996) (providing for increased sentences for dangerous offenders).  The district court ordered the 240-month sentence for the current burglary offense to be served consecutively to a 68-month sentence for a prior burglary conviction.  The district court also sentenced appellant to concurrent, executed sentences of 111 months’ imprisonment on the third-degree criminal sexual conduct conviction, and 90 days’ imprisonment on the misdemeanor-theft conviction.

Appellant filed a direct appeal to this court, arguing that the district court erred in finding that that K.B. and D.B. were unavailable as witnesses and admitting into evidence their out-of-court statements.  Appellant further alleged that the district court erred in its jury instructions and its sentencing imposition.  This court affirmed the district court and the supreme court denied further review.  State v. Hernandez, No. C9-98-789, 1999 WL 203786 (Minn. App. Apr. 13, 1999), review denied (Minn. June 29, 1999).

Appellant subsequently petitioned the district court to vacate his convictions and sentences and dismiss his case, or, in the alternative, grant him a new trial, arguing that (1) the state made an inadequate effort to locate K.B and D.B. as required under Minn. R. Evid 804(b)(5), and (2) there is newly discovered evidence revealing K.B. and D.B.’s sexual proclivities, which would have affected the outcome of the case.  The district court denied appellant’s petition for postconviction relief without an evidentiary hearing.  This appeal follows.


            We review postconviction proceedings only to resolve whether sufficient evidence supports the district court’s postconviction findings.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  The district court’s decision will not be reversed absent an abuse of discretion.  Id.  When seeking postconviction relief, a petitioner has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 

            Appellant first contends that the district court erred by introducing K.B.’s and D.B.’s statements into evidence under Minn. R. Evid. 804(b)(5) relating to unavailable witnesses.  As support for his claim that the state failed to make a good-faith effort to locate K.B. and D.B, appellant argues that (1) a private investigator hired on behalf of appellant easily found K.B. and D.B. within a matter of hours, and (2) law-enforcement officers had contact with K.B. prior to the trial despite the state’s contention that did not have contact with K.B. and D.B. since shortly after the alleged offenses. 

Appellant, however, raised the same argument on direct appeal.  See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (holding that if a defendant has previously made a direct appeal, this court will not consider issues raised in the direct appeal, or issues known but not raised in the direct appeal, in a subsequent petition for postconviction relief).  On direct appeal, this court summarized appellant’s argument as “Hernandez first contends that the district court erred in determining that the victims were unavailable.” Hernandez, 1999 WL 203786 at *7.  The opinion then tracked numerous attempts by the Polk County Attorney’s Office to contact K.B and D.B. and stated “[t]he state’s efforts to locate the victims were sufficient to support the district court’s finding of unavailability.” Id. at *8.  Because appellant previously appealed the issue of witness unavailability, we conclude that his argument that the state failed to make a good-faith effort to locate the K.B. and D.B. is procedurally barred.

Appellant next contends that the district court abused its discretion in denying his postconviction petition without an evidentiary hearing despite newly discovered evidence showing K.B. and D.B.’s sexual proclivities.  Newly discovered evidence unavailable at the time of trial may form the basis for postconviction relief.  Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995).  To obtain a new trial on the ground of newly discovered evidence, the defendant must establish

(1) that the evidence was not known to him or his counsel at the time of trial, (2) that his failure to learn of it before trial was not due to lack of diligence, (3) that the evidence is material (or, as we have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal at a retrial or a result more favorable to the petitioner. 


Race v. State, 417 N.W.2d 264, 266 (Minn. 1987).

Appellant argues that his investigator talked to K.B. and learned of D.B.’s interest in group sexual activity, and talked to D.B.’s former wife who revealed the sexual proclivities of K.B.  Appellant argues that this new evidence would have produced a result more favorable to him at trial.  We disagree.  Our review of the record reveals that there was a very strong case against appellant.  The officer at the crime scene testified that there were signs of forced entry into the victims’ motel room and that partial boot prints near the point of forced entry matched appellant’s.  In addition, a victim of a similar crime for which appellant was convicted testified that in 1995, appellant entered his residence while he was sleeping and that, when he woke up, appellant was performing oral sex on him.  Furthermore, a police officer testified that appellant told him that he went to the motel room to sell K.B. and D.B. drugs.  But appellant later changed his story to say that he was a male prostitute and K.B. and D. B had hired him that evening.  We conclude that the district court did not abuse its discretion in denying appellant’s postconviction petition without an evidentiary hearing because the newly discovered evidence would not likely have produced a result more favorable to appellant.

Appellant’s last argument challenges the district court’s failure to make findings when denying his petition for postconviction relief as required by Minn. Stat. § 590.04, subd. 1 (2000).  A postconviction evidentiary hearing is not required unless the petitioner alleges facts that, if proven, would entitle a petitioner to relief.  Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).  Since we have concluded that appellant did not allege facts that, if proven, would entitle him to relief, appellant is not entitled to an evidentiary hearing.  Specific findings are only required when there is an evidentiary hearing.  See Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (holding summary order denying postconviction relief not error, but if evidentiary hearing necessary, court should follow the hearing with findings of fact and conclusions of law).  Accordingly, appellant’s argument is without merit.


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