This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-2170

Steven D. Adams, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed May 11, 1999

Affirmed

Amundson, Judge

Rock County District Court

File No. K6-96-56

Steven D. Adams, #184682, 970 Picket Street North, Bayport, MN 55003 (pro se appellant)

Mike Hatch, Minnesota Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Donald R. Klosterbuer, Rock County Attorney, Terry Vajgrt, Assistant Rock County Attorney, 120 North McKenzie, P.O. Box 538, Luverne, MN 56156 (for respondent)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Following an unsuccessful appeal of his first-degree criminal sexual conduct conviction, appellant Steven Dean Adams petitioned for postconviction relief, asserting that he was entitled to a new trial based on newly discovered evidence showing that the state's material witness perjured herself. On appeal, Adams challenges the trial court's denial of his petition, arguing the court abused its discretion by not granting an evidentiary hearing. We affirm.

FACTS

On September 12, 1996, a jury convicted Steven Adams of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (1996). Upon finding Adams a "patterned sex offender," the trial court sentenced him to 30 years' imprisonment. Adams appealed to this court, arguing that the trial court: (1) committed reversible error in admitting certain testimony; (2) erred in concluding he was a "patterned sex offender"; (3) abused its discretion in sentencing him; and (4) erred in calculating his jail credit. In an unpublished decision, we affirmed in part, but reversed on the jail credit issue. State v. Adams, C8-97-1180, 1998 WL 128759 (Minn. App. March 24, 1998), review denied (Minn. Apr. 30, 1998).

On September 29, 1998, Adams filed a petition for postconviction relief. By order dated October 30, 1998, the trial court denied Adams's request for a hearing and summarily denied his request for postconviction relief. Adams now appeals from the trial court's postconviction order.

The victim, C.A., was born on May 19, 1980. At the time of trial, C.A. was 16 years old. C.A. testified that she was "about eight or nine" when she first met Adams. She further testified that Adams lived in Spokane, Washington with C.A. and her mother for about six months prior to marrying her mother. C.A. testified that Adams's first act of sexual abuse occurred when she was "probably nine."

Eventually Adams, C.A., and C.A.'s mother moved to South Dakota, where Adams adopted C.A. C.A. testified that she was not sure of her age at the time of the adoption but that it was "[p]robably ten." In South Dakota, Adams sexually assaulted C.A. when her mother was not present. At some point after moving to South Dakota, C.A.'s mother left home while C.A. was at school. C.A. did not see her mother again until she was placed in foster care.

In 1994, when C.A. was fourteen years old, Adams moved with C.A. to Rock County, Minnesota. There, C.A. testified that she and Adams regularly had sexual intercourse and often slept in the same bed. In July 1995, one of their neighbors suspected and reported the sexual abuse. Thereafter, C.A. was removed from the home. C.A. denied the abuse at first because she did not want to go live with her mother and she believed that Adams was "all [she] had." But, in March 1996, C.A. told her foster mother about the sexual abuse.

D E C I S I O N

We review postconviction proceedings only to determine whether there is sufficient evidence to support the postconviction court's findings, and the decision will not be disturbed absent an abuse of discretion. Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995).

The postconviction court is required to set a hearing on the petition "[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1998). An evidentiary hearing is not required where the alleged facts, even if proved, would not entitle the petitioner to the requested relief. Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997).

Here, the record supports the trial court's denial of an evidentiary hearing. In his petition, Adams asserts that his conviction was the result of perjured testimony and therefore, cannot stand. Adams claims that C.A. perjured herself by incorrectly testifying as to her age when she first met Adams and the age when he first sexually assaulted her. Even if we accept the facts alleged in Adams's petition as true, Adams would not be entitled to a new trial. That is, even if C.A. incorrectly testified that she met Adams when she was "eight or nine," such testimony was immaterial to the jury's conviction. The charge of criminal sexual conduct in the first degree, for which Adams was convicted, was for the sexual assault perpetrated against C.A. in Rock County in 1994 and 1995. The exact age of C.A. when she met Adams or when the abuse began adds nothing material to the jury's determination as to whether the charged abuse occurred. See Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (stating that evidentiary hearing is required only when the pleadings place material facts in dispute), review denied (Minn. May 18, 1987). The trial court correctly denied Adams's request for a postconviction hearing.

Procedural Grounds for Denial

In its order, the trial court found that Adams simply could not "assert that he did not know at the time of trial, and at the time of appeal * * *, when he had met the witness." We agree.

After direct appeal, all matters raised in that appeal, as well as all matters known but not raised, will not be considered on a subsequent petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Here, Adams had the trial transcript at his disposal at the time of the direct appeal. Furthermore, he was present at the trial. Therefore, Adams "should have known" at the time of the direct appeal that he had not met C.A. at the age she testified to at trial. See Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995) (stating that it is considered sufficient that an appellant "should have known" of a claim at the time of the direct appeal to justify denying postconviction relief).

The supreme court has recognized two exceptions to this general rule. Roby, 531 N.W.2d at 484. Claims known but not raised on direct appeal will be considered in a subsequent petition for postconviction relief if (1) the claim is so novel that it can be said that its legal basis was not reasonably available at the time of the direct appeal; or (2) fairness requires consideration and the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal. Id.

These two exceptions are not applicable in the instant matter. First, there is nothing "novel" about an argument that a witnessed committed perjury. Second, because the supposed "perjured" testimony is not even material to the facts giving rise to the crime charged, fairness does not require a consideration of this issue in postconviction proceedings.

Substantive Grounds for Denial

In his petition, Adams based his claim to a right to a new trial on his discovery that a material witness perjured herself at trial. The trial court denied relief on the grounds that any evidence of perjured testimony was not "newly discovered" after trial but was known at the time of trial.

In order to obtain a new trial on the ground of newly discovered evidence, the defendant must establish that (1) neither he nor his counsel were aware of the newly discovered evidence at the time of trial; (2) his failure to discover that evidence before trial was not due to a lack of diligence; (3) the evidence is material (or rather, not impeaching, cumulative or doubtful); and (4) the evidence is likely to eventuate in either an acquittal at a retrial or a result more favorable to the petitioner. Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995). The trial court found that Adams could not fulfill the first prong of this test. Moreover, the court held that the evidence was impeaching and most likely would not have produced a different or more favorable result at trial.

Although, based on the record, the trial court's conclusions are reasonable, we conclude that it is more appropriate to affirm the dismissal on the grounds that the newly discovered evidence does not comport with the standard for granting a new trial on the basis of "perjured testimony." A new trial may be granted on the grounds of false testimony where:

(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

(b) That without it the jury might have reached a different conclusion.

(c) That the party seeking the new trial 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.

State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982) (quoting Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928)) (emphasis in original).

Adams cannot satisfy these requirements. First, the documentation provided by Adams in his postconviction petition fails to prove the falsity of C.A.'s testimony regarding her age at the time of their meeting. Moreover, C.A. did not indicate any degree of certainty about the age at which she met Adams, saying it was "about eight or nine," or the age at which the abuse began. Second, it is not plausible that the jury's knowledge of C.A.'s exact age "might" have caused the jury to reach a different determination. Even if C.A.'s testimony created a false impression as to her initial age, it is unlikely this testimony affected the outcome of appellant's trial. See Caldwell, 322 N.W.2d at 584-85 (requiring proof that jury might have reached different conclusion for false testimony to be grounds for new trial).

Additionally, Adams cannot reasonably argue that he was taken by surprise by this testimony, so that he was unable to counter it at trial. Presumably Adams, who was an adult at the time he met C.A., had a better understanding of how old C.A. was at the time of their first meeting than C.A. If Adams had felt this information was relevant, he could have offered evidence at trial as to C.A.'s age when he met her. Adams argument that he did not know of its falsity until after trial just shows that he, like C.A., was unable to pinpoint C.A.'s exact age when the two met.

Finally, the alleged "perjured" testimony was only a fraction of the evidence produced at Adams's trial. See, e.g., Dye v. State, 411 N.W.2d 897, 900-01 (Minn. App. 1987) (upholding postconviction court's decision because false or inconsistent evidence did not override sufficient evidence of appellant's guilt), review denied (Minn. Oct. 28, 1987). Indeed, as this court noted on direct appeal:

The record contains overwhelming evidence of Adams's guilt, including his conduct in regularly sleeping with the victim, "checking" on the victim in the shower, and mailing the victim letters that characterized their relationship as one of boyfriend/girlfriend rather than father/daughter.

Adams, 1998 WL 128759 at *2. Adams's petition, alleging false testimony, is merely a weak attempt to get a new trial. The trial court did not abuse its discretion in denying Adams's petition for postconviction relief on both procedural and substantive grounds.

Affirmed.