State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0526

State of Minnesota,
Respondent,

vs.

Anthony Lee Stands,
Appellant.

Filed October 29, 2018
Affirmed
Connolly, Judge

Otter Tail County District Court
File No. 56-CR-15-3021

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant was convicted of third-degree criminal sexual conduct and challenges the
denial of his request for post conviction relief. He argues that the postconviction court
abused its discretion when it denied him a new trial or an evidentiary hearing because he
produced sufficient evidence that the victim had lied about the allegations. The
postconviction court found that appellant failed to produc e evidence of false testimony.
We affirm.
FACTS
Appellant Anthony Lee Stands was charged with and convicted of third -degree
criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2014).
In October 2014, appellant and his friend visited the victim, E.P., at her house. E.P.
testified that while the three were in her bedroom, appellant engaged in nonconsensual
intercourse with her and did not stop despite her request. Appellant testified in his own
defense and stated that the intercourse was consensual.
Appellant filed a petition for postconviction relief, alleging that he had discovered
evidence that E.P. had lied about the allegations again st him. In support of his petition,
appellant presented three affidavits from individuals indicating that the victim’s mother,
S.W., told them that E.P. had lied about the allegations. In two of the affidavits, witnesses
stated that S.W. told them E.P. admitted she made up the allegations.
The postconviction court held a hearing on the matter to determine if there should
be an evidentiary hearing. The court permitted appellant to take testimony from S.W. , at

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the hearing, in lieu of an affidavit. The postconvic tion court explained that if the victim
did admit to her mother that her allegations were false, an evidentiary hearing would be
held. The postconviction court did not allow the three affiants to testify because their
statements were based solely on information learned from the victim’s mother.
S.W. testified that E.P. had not told her that she lied or that the intercourse was
consensual. In fact, S.W. testified that E.P. would not talk to her about the allegations at
all. S.W. also testified that she did not believe E.P.’s allegations to be true, because in her
view E.P. was bipolar, and was perhaps being dishonest be cause of retaliation or middle -
child syndrome. Finally, S.W. testified that she did not tell the affiants that E.P. had said
the allegations were false, but only that she did not believe E.P.
The postconviction court denied appellant’s motion without an evidentiary hearing
because no witness had firsthand knowledge that E.P. had falsified her testimony or lied in
any way. This appeal follows.
D E C I S I O N
This court “reviews the denial of a petition for postconviction relief, as well as a
request for an evidentiary hearing, for an abuse of discretion.” Colbert v. State, 870 N.W.2d
616, 621 (Minn. 2015). A court “abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Riley v. State,
819 N.W.2d 162, 167 (Minn. 2012). An appellant 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).

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1. New Trial Claim
Appellant argues that he is entitled to a new trial because the victim provided false
testimony at trial. This court applies a three -prong test, known as the Larrison test, to
claims of newly discovered evidence of false testimony. Williams v. State , 692 N.W.2d
893, 896 (Minn. 2005). A new trial base d on newly discovered false testimony should be
granted when,
(1) the court is reasonably well -satisfied that the testimony given by a
material witness was false; (2) that without that testimony the jury might
have reached a different conclusion; and (3) that the party seeking a 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. The first two prongs are mandatory, but the third prong, while relevant, is not. Ortega
v. State, 856 N.W.2d 98, 103 (Minn. 2014).
The postconviction court denied appellant’s petition, concluding that the first
Larrison prong had not been met. The court concluded that appellant had failed to show
that the victim herself recanted in any way , emphasizing the hearsay nature of the third -
party affid avits and noting that the “ testimony of the third -party witnesses could not
constitute substantive evidence showing that [the victim] lied on the stand.”
Appellant’s argument that the pos tconviction court abused its discretion in
depriving him a new trial fails. First, under the first Larrison prong, the “court must be
reasonably certain that the alleged recantation is genuine.” Opsahl v. State, 710 N.W.2d
776, 782 (Minn. 2006) (quotation omitted) (Opsahl II). Here, S.W., the only individual
who claimed personal knowledge that E.P. gave false testimony, stated that she had never
heard E.P. recant or say she lied. S.W. did state that she believed E.P. gave false testimony

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because she might be bipolar or retaliating or have middle -child syndrome, but could not
be sure. But an opinion regarding a witness’s general reliability, as opposed to evidence
of actual dishonesty, is an insufficient basis for a new trial. Martin v. State, 865 N.W.2d
282, 290 (Minn. 2015).
Second, S.W.’s opinion that E.P.’s testimony was false would be inadmissible
evidence and could not be the basis for granting a new trial, because it is improper “for the
defense to elicit direct opinion testimony on the specific question of whether the
complainant is telling the truth in his or her testimony.” State v. Maurer, 491 N.W.2d 661,
662 (Minn. 1992). A postconviction court does not abuse its discretion in denying a claim
of newly discovered evidence of false testimony when the appellant fails to “present any
admissible evidence of . . . recantation.” Dobbins v. State, 845 N.W.2d 148, 155 (Minn.
2013).
Third, appellant’s affidavits are also inadmissible to prove E.P. testified falsely.
Two affiants assert that they l earned from S.W. that E.P. said she had testified falsely.
These affidavits reflect two levels of hearsay, that S.W. said that E.P. said she testified
falsely, but “hearsay evidence is [never] sufficient to warrant a new t rial under the first
prong of Larrison.” Campbell v. State , 916 N.W.2d 502, 507 (Minn. 2018). The third
affidavit also contains hearsay.
Appellant’s evidence that E.P. gave false testimony is based solely on S.W.’s
opinion and hearsay affidavits derived from that opinion. There is no evidence that any
individual has personally heard E.P. recant. The postconviction court did not abuse its
discretion in finding that it was not reasonably well satisfied that E.P .’s testimony was

6
false. Because appellant failed to meet the first Larrison prong, we decline to address the
remaining elements.
2. Evidentiary Hearing Claim
Appellant argues in the alternative that he is at least entitled to an evidentiary
hearing. A postconviction petitioner is entitled to an evidentiary hearing “[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 (2016). The Larrison test is applicable
when addressing whether the claim requires an evidentiary hearing. See Caldwell v. State,
853 N.W.2d 766, 775 (Minn. 2014) (the Larrison standard applies broadly to all allegations
of false trial testimony, not just to witness recantations). When applying the Larrison test,
the court must assume the truth of the allegations in the petition. Ortega, 856 N.W.2d at
103. The court then asks whether the allegations, assuming they are true, would be legally
sufficient to entitle a defendant to relief. Caldwell, 853 N.W.2d at 772.
Appellant argues that the postconviction court abused its discretion when it denied
the hearing because there was no “admissible” evidence of false testimony. Appellant
relies exclusively on Ferguson for the proposition that a petitioner does not need to provide
admissible evidence in order to receive a hearing. 645 N.W.2d at 443, 446. Appellant’s
reliance on Ferguson is misplaced.
In Ferguson, the court held that it is not proper to deny an evidentiary hearing simply
because the evidence of false testimony may be hearsay. Id. at 446. In that case, however,
the hearsay witness had personal knowledge from a key witness that the witness gave false
testimony. Id. Because the witness ma y have invoked his right to remain silent at the

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evidentiary hearing, there was the potential for the hearsay evidence to become
admissible.1 Id.
This is not the case here. In this case, there is no witness with personal knowledge
that E.P. gave false t estimony. There is only hearsay within hearsay evidence, derived
from an in dividual who admitted to never having spoken with E.P. See id. at 447
(suggesting that an evidentiary hearing would not be necessary because the claim “does
not present the possib ility of a witness recanting his testimony; instead, there is only a
possibility that another witness would testify that [the witness] was lying and had changed
his story.”) . Thus, because there is only hearsay within hearsay evidence, there is not
substantive evidence potentially admissible to prove that E.P. gave false testimony.
Appellant also argues that “there was a material factual dispute,” and that an
evidentiary hearing is necessary “whenever mat erial facts are in dispute that . . . must be
resolved in order to determine the issues raised on the merits.” Opsahl v. State, 677 N.W.2d
414, 423 (Minn. 2004) (quotation omitted) (Opsahl I). Appellant argues that, taking the
two affidavits as true, there is a genuine factual dispute. But t he affidavits, because they
rely on hearsay within hearsay, cannot be used to show that E.P. testified falsely. In
addition, S.W. testified to the fact that E.P. did not tell her she lied. There is no substantive
evidence potentially admissible to prove E.P. testified falsely and there is no potential
dispute.

1 In such a case, the witness would become “unavailable” so that the “testimony falls under
the hearsay exception for statements against penal interest.” Id.

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Appellant finally argues that the court abused its discretion in denying an
evidentiary hearing because the petition for relief requires an assessment of witness
credibility. It is true that a “postconviction hearing is exactly the forum in which the court
can examine and compare each witnesses’ account for truthfulness and elicit details about
each witnesses’ knowledge .” Wilson v. State , 726 N.W.2d 103, 107 (Minn. 2007). In
addition, a court “considers the facts alleged within the petition as true, and construes them
in the light most favorable to the petitioner” before determining whether an e videntiary
hearing is required. Anderson v. State , 913 N.W.2d 417, 422-23 (Minn. 2018). Here,
however, there is no witness who claims to have heard from E.P. that she gave false
testimony or lied about the allegations. Thus, there is no substantive evidence that E.P.
gave false testimony and no facts that even if true, would require a credi bility
determination.
The district court did not abuse its discretion when it denied appellant an evidentiary
hearing.
Affirmed.