STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1747

John Wallace Brown, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 4, 2007

Affirmed

Stoneburner, Judge

Rice County District Court

File No. C305869

Ronald L. Moersch, Mary L. Hahn, Hvistendahl, Moersch & Dorsey, P.A., 311 South Water Street, Box 651, Northfield, MN 55057-0651 (for appellant)

Lori Swanson, Attorney General, Mark B. Levinger, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)

Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant, who was convicted of second-degree criminal sexual conduct and solicitation of a child to engage in sexual conduct, challenges denial of his post-conviction petition for a new trial based on recantation of a material witness’s testimony. Because the district court did not err in concluding that appellant did not establish that, without the false testimony, the jury might have reached a different conclusion, we affirm.

FACTS

Appellant John Wallace Brown was charged with second-degree criminal sexual conduct and solicitation of a child to engage in sexual conduct for sexually touching and soliciting J.N., the daughter of his girlfriend. At trial, J.N. testified that Brown began touching her sexually when her mother moved into Brown’s home with J.N. and J.N.’s brother and sister. J.N. was 12 years old at that time. J.N. testified in detail about numerous incidents of Brown touching her on her buttocks and vagina, simulating sexual acts while standing so that J.N. could feel his erect penis through her clothes, crawling into her bed wearing only a T-shirt, touching her breasts and vagina and rubbing his erect penis on her thighs, and attempting to persuade her to have sexual intercourse with him. Despite Brown’s telling J.N. that nobody else needed to know, J.N. confided in several of her friends and eventually disclosed the abuse to her siblings, her aunt, and the police.

Two of J.N.’s friends testified that they saw Brown touch J.N.’s buttocks. Brown’s biological daughter also testified at trial describing Brown’s sexual abuse of her during her adolescence that led to a 1989 conviction of second-degree criminal sexual conduct. T.N., J.N.’s sister, who lived in the Brown household for three months during the relevant time, testified that she witnessed Brown touching J.N. on the inside of her thighs, her breasts, and her buttocks. T.N. testified that Brown had also attempted to touch her inappropriately but that she had prevented it.

Brown was convicted and sentenced, and he appealed. This court affirmed his conviction and sentence in State v. Brown, No. A03-436, 2004 WL 193092 (Minn. App. Feb. 1, 2004), review denied (Minn. Mar. 30, 2004).[1] Approximately three years after the trial, T.N. recanted her trial testimony by affidavit stating that Brown had never tried to touch her inappropriately and that she had never seen Brown touch J.N. sexually. Brown petitioned for postconviction relief, and the district court granted an evidentiary hearing. At the hearing, T.N. confirmed the accuracy of her affidavit. She testified that at the time of the trial she felt family pressure to testify against Brown.

The district court concluded that T.N. was a material witness who testified falsely at trial, but denied a new trial, finding that T.N.’s testimony was “merely cumulative” and “not likely to have affected the jury verdict.” This appeal followed.

D E C I S I O N

Our review of postconviction proceedings is limited to determining whether sufficient evidence supports the findings of fact of the postconviction court, and we will not disturb those findings absent an abuse of discretion. Hooper v. State, 680 N.W.2d 89, 92 (Minn. 2004). “A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.” Ferguson v. State,645 N.W.2d 437, 442 (Minn. 2002); see also Minn. Stat. § 509.04, subd. 3 (2006). “We review the postconviction court’s legal determinations de novo.” State v. Turnage, 729 N.W.2d 593, 598 (Minn. 2007).

I. Test for relief based on recanted testimony

“[Minnesota applies] a three-prong test known as the Larrison test to determine whether a petition for postconviction relief warrants a new trial based on recantation of trial testimony.” Id. at 597 (citing Ferguson,645 N.W.2d at 442 and applying the three-prong test set out in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir. 2004) (modifying test)).

Under the Larrison test, a petitioner is entitled to a new trial due to witness recantation of testimony if (1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) * * * without the testimony, the jury might have reached a different conclusion; and (3) * * * 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 the trial.

Id. (quotation omitted). But the third prong is not an absolute condition precedent to the grant of a new trial because a defendant could never meet this prong in the case of an eyewitness’s false testimony. Ferguson,645 N.W.2d at 445. Because T.N. was an eyewitness, the third prong of the test is not relevant in this case.

The district court concluded that T.N. was a material witness, her trial testimony was false, and Brown therefore met the first prong of the Larrison test.[2] The primary

issue in this case is whether the district court abused its discretion by denying relief based on its determination that Brown failed to establish that absent T.N.’s testimony, the jury might have found him not guilty. Brown first argues that the district court applied the wrong legal standard to the second prong of the Larrison test. This issue presents a question of law, reviewed de novo.

The standard to be applied to the second prong of the Larrison test is “whether the jury might have found the defendant not guilty if the recanting witness had not testified.” Turnage, 729 N.W.2d at 599 (emphasis added). The district court correctly recited this language in the memorandum attached to its order. The district court found that T.N.’s testimony in this case was “merely cumulative” to the testimony of J.N. and her two friends and denied Brown’s petition “on the grounds that the testimony was not likely to have affected the jury verdict” (emphasis added). The district court later stated that “there is no reasonable possibility that [Brown] would not have been convicted but for the perjured testimony of [T.N.]” (emphasis added). Brown argues that the district court’s use of “not likely” and “no reasonable possibility” demonstrates that it did not apply the correct legal standard to evaluate the second prong of Larrison, and, therefore,the order denying his petition must be reversed and a new trial granted. We disagree.

“Might” is defined in relevant part in The American Heritage College Dictionary 795 (2d ed. 1982) as a word “[u]sed to express possibility or probability or permission in the past.” Given the common meaning of the word and the district court’s correct statement of the Larrison test, we conclude that the district court’s use of “not likely” and “no reasonable possibility” does not demonstrate that the district court applied the wrong standard. In Hooper, the Minnesota Supreme Court affirmed a postconviction court’s finding that the second prong of Larrison was not met, stating that “even without [the false] testimony, the strength of the other evidence presented at trial was such that the jury would not likely have reached a different conclusion.” Hooper,680 N.W.2d at 95 (emphasis added). And Turnage cites the not likely language of Hooper as an example of a correct statement of the Larrison test. Turnage,729 N.W.2d at 598.

Furthermore, even if the district court’s use of the terms “not likely” or “no reasonable possibility” could be said to reflect the use of an incorrect standard, reversal is not required. In Turnage, the supreme court held that the postconviction court applied the incorrect standard to the second prong of the Larrison test by examining whether the evidence was sufficient to convict the defendant in the absence of the recanted testimony. Id.at 599. The supreme court then reviewed the record to determine whether the second prong of Larrison had been met, concluded that it had not, and stated “while the postconviction court did not articulate the correct legal formulation of the second Larrison prong, the postconviction court’s denial of the petition was not an abuse of discretion.” Id.at 600.

In this case, from our own review of the evidence, we conclude that Brown did not meet the burden of establishing that absent T.N.’s testimony, the jury might have reached a different conclusion. T.N.’s testimony corroborated J.N.’s friends’ testimony that Brown touched J.N. on the buttocks when he hugged her. T.N. also corroborated J.N.’s testimony that Brown touched her on the inside of her thighs and breasts, which constituted, as the district court correctly noted, direct evidence of Brown’s guilt of second-degree criminal sexual conduct. J.N.’s description of Brown’s touching went far beyond what T.N. purported to have seen. J.N. testified not just about Brown’s touching her over her clothing, but about intimate touching that occurred when he was in her bed and that was not witnessed by T.N. or anyone else. T.N.’s testimony was cumulative and was not pivotal to Brown’s conviction. See Hooper, 680 N.W.2d at 96 (concluding that although a witness’s false testimony went directly to guilt, it was not pivotal to Hooper’s conviction and that Hooper failed to establish that without the testimony, the jury might have reached a different conclusion). We conclude that the district court did not abuse its discretion by denying Brown’s petition for postconviction relief.

II. Evidence of recanted testimony as exculpatory evidence

Brown also argues that the district court should have considered and analyzed whether the exculpatory value of T.N.’s testimony that she felt pressure from family members to testify falsely to convict Brown might have led the jury to reach a different conclusion. We agree with respondent that it is not appropriate for the district court to consider the possible effect of evidence of recanted testimony at a new trial in the context of analyzing the Larrison factors. See State v. Caldwell, 322 N.W.2d 574, 585 (Minn. 1982) (discussing the different tests for “ordinary” newly discovered evidence not presented at the defendant’s trial and recanted testimony). “The ‘newly-discovered evidence’ in [false-testimony] cases, in fact, is the absence of certain testimony, rather than the addition of new material, at a second trial. Thus the court is really considering what impact the false testimony had on the jury in the first trial.” Id. (emphasis in original).

The dissenting opinion in Turnage suggests that exculpatory evidence that is contained in a recantation statement should be addressed by separating the exculpatory evidence from the withdrawal of the incriminating testimony and subjecting the exculpatory evidence “to the heightened standard for newly discovered evidence,” which is concerned with the probable effect the newly discovered evidence might have had in another trial. See Turnage, 729 N.W.2dat 602 (Hanson, J. dissenting). In the district court, Brown only asserted that the Larrison test should be expanded to consider the exculpatory value of T.N.’s testimony, and the district court correctly rejected that argument. Brown did not argue that T.N.’s new testimony constituted newly discovered evidence subject to the ordinary test for such evidence, and we decline to reach that issue on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally not consider matters not argued and considered in the district court).

Affirmed.

[1] The recitation of facts in the unpublished opinion affirming Brown’s conviction does not mention T.N.’s testimony.

[2] T.N. was convicted of perjury for giving false testimony at Brown’s trial.