Justin Michael Fenney, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2053

Justin Michael Fenney, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 8, 2020
Affirmed
Jesson, Judge

Ramsey County District Court
File No. 62-CR-12-8669

Zachary A. Longsdorf, Longs dorf Law Firm, PLC, Inver Grove Heights, Minnesota
(for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Wo rke, Judge; and
Halbrooks, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Justin Michael Fenney was conv icted of first-degree criminal sexual
conduct in March 2013 fo r penetrating his ex-girlfriend’s anus with the handle of a toilet
brush while physically assau lting her in her apartment. Fenney argues that the
postconviction court erred by denying his August 2019 petition without an evidentiary
hearing. We affirm.
FACTS
On October 25, 2012, appellant Justin Mi chael Fenney arrived at the apartment of
his ex-girlfriend, L.H., and found her receiving oral sex from D.W.1 After seeing the angry
look on Fenney’s face, D.W. dashed out of the apartment.
L.H. ran into her bedroom where her daught er was sleeping. Fenney then kicked
the bedroom door open. He repeatedly hit, kicked, and choked L.H. L.H. pleaded with
Fenney to stop hurting her, but Fenney broke L.H.’s nose, chipped her tooth, and pulled
out her hair and extensions. When she was on the floor between the bathroom and living
room, Fenney forcibly penetrated her anus with the handle of a toilet brush. L.H. passed
out from the pain.
Officers who responded to a neighbor’s 911 call discovered a significant amount of
blood on the floor and walls of the apartment. The officers also discovered a toilet brush

1 The facts recited herein are taken from Fenney’s January 2013 court trial.

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with a bloody handle in the ba throom along with what appeared to be fecal matter on the
floor just inside the threshold of the bathroom door.
A medic who responded to the scene testifie d that L.H. was unable to walk the five
or six steps to the medic rig and required the assistance of a stretcher. When asked if she
was hurt, L.H. indicated that she had been injured in the back of her groin area. The medic
asked if she had been assau lted by Fenney with the handle of a toilet brush, and she
responded by nodding “yes.”
The medics transported L.H. to the hospital where a physician performed emergency
surgery to repair a one-inch ex ternal injury to her anus, a f our-inch internal tear, and an
one-inch perforation of her rectal wall. At trial, that physicia n testified that her injuries
were consistent with the handl e of a toilet brush being placed in her rectum with a great
deal of force.
D.W., the man who fled the apartment shor tly after Fenney’s arri val, testified as
well. He explained that at the point when he left the apartment, L.H. appeared physically
fine and had not complained abou t having any physical injuries . D.W. also testified that
there was no blood on the apartment’s floors or walls and no fecal matter on the bathroom
floor. Nor was there a bloody toilet brush handle on the bathroom floor.
During Fenney’s court trial, while descri bing the injuries caused by Feeney, L.H.
provided the following testimony regarding the injury to her rectum:
Q: What point did you realiz e you had an injury to your
bottom?
A: I remember feeling it.
Q: Where were you when you remember feeling it?
A: In the living room.

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Q: . . . Do you remember at all how that injury occurred?
A: I remember just saying, no. My hands were behind my
back.
. . . .
Q: Do you remember . . . a nything about how you got the
injuries to your bottom?
A: I remember feeling the pain. It was kind of simultaneously
with the kick.
Q: So you remember pain when you were being kicked?
A: I remember the pain and I was, like, pretty much going out
and I remember being kicked.

On redirect examination, the state clarified that L.H. was “part way in the living room, part
way in the bathroom” with her hands behind her back when she felt the injury to her bottom.
L.H. also testified that up to the point when Fenney entered the apartment she did not have
any physical injuries to her bottom. The district court found Fenney guilty of first-degree
criminal sexual conduct and third-degree assa ult, and sentenced him to 270 months in
prison on the criminal-sexual-conduct offense.
This court initially stayed Fenney’s di rect appeal and remanded the matter for
postconviction proceedings. Fo llowing an evidentia ry hearing, the postconviction court
denied Fenney’s petition, and this court affirmed Fenney’s conviction and the denial of his
postconviction petition for a new trial. State v. Fenney, No. A13-0978, 2015 WL 1880185
(Minn. App. Apr. 27, 2015), review denied (Minn. July 21, 2015). Fenney filed additional
postconviction petitions in June and October 2016, and July 2017, all of which were denied
by the postconviction court as procedurally barred.
Fenney filed the postconviction petition that is the subject of the present appeal in
August 2019, asserting that he is entitled to a new trial on the basi s of newly discovered
evidence and false testimony. In support of his claims, Fenney subm itted an affidavit of

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D.W. in which D.W. attests that he and L.H. engaged in consensual anal intercourse just
prior to Fenney’s arrival at the apartment. Neither D.W. nor L. H. testified to this fact at
trial. Due to the “significant weight” of the evidence of Fenney’s guilt unaffected by the
additional disclosure in D.W.’s affidavit, the district court denied Fenney’s postconviction
petition without holding an evidentiary hearing. This appeal follows.
D E C I S I O N
Fenney argues that the district cour t erred by denying his postconviction petition
without holding an evid entiary hearing. We review a postconviction court’s decision to
deny a request for an evidentiary he aring for an abuse of discretion. Caldwell v. State ,
853 N.W.2d 766, 770 (Minn. 2014). The pos tconviction court must consider the facts
alleged in the petition in the light most favorable to Fenney. Taylor v. State ,
910 N.W.2d 35, 38 (Minn. 2018).
To determine whether an ev identiary hearing is requir ed, we first turn to the
requirements—all of which Fenney must esta blish—to obtain a new trial based on newly
discovered evidence. These re quirements are known as the Rainer test. See
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). The four prongs of the Rainer test
are:
(1) that the evidence was not known to the defendant . . . at
the time of the trial;
(2) that the evidence coul d not have been discovered
through due diligence before trial;
(3) that the evidence is not cumulative, impeaching, or
doubtful; and
(4) that the evidence would probably produce an acquittal
or a more favorable result.

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Id. (emphasis added).
But the showing required to obtain an evidentiary hearing is less than that required
for a new trial. Opsahl v. State, 677 N.W.2d 414, 423 (Minn. 2004). Upon reviewing the
purported new evidence with the four Rainer requirements in mind, the postconviction
court “must grant an evidentiary hearing whenever material facts are in dispute
that . . . must be resolved in order to determine the issue on the merits.” Id. (quotation
omitted). However, “[a]n eviden tiary hearing is unnecessary if the substance of the
affidavit purporting to contain newly discovered evidence, when taken at face value, is
insufficient to entitle the petitione r to the relief requested.” Scherf v. State ,
788 N.W.2d 504, 508 (Minn. 2010). Here, the postconviction court (without reaching the
first three prongs of Rainer) determined that D.W.’s affida vit did not satisfy the fourth
prong—that the evidence would probably produce an acquittal or more favorable result—
and denied the petition.
This decision was not an abuse of discretion. At trial, both D.W. and L.H. testified
that L.H. was unhurt when D.W. ran out of the apartment. The testimony of the medic, the
treating physician, and L.H. all supported th e postconviction court’s conclusion that
Fenney caused the injuries to L.H.’s rectum by forcibly inse rting the toilet brush into her
anus.
No evidence was presented at trial that identified D.W. as a potential source of
L.H.’s injuries. More importantly, while D.W.’s affidavit asserts that he had “consensual
anal [intercourse]” with L.H. on the night in question, at no point does D.W. attest that
L.H. was injured as a result of this intercourse, or th at he observed that L.H. was injured

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before fleeing the apartment contrary to his trial testimony. Because on its face D.W.’s
affidavit neither counters the evidence presented at trial, which identified Fenney as the
source of L.H.’s injuries, nor presents new evidence that L.H. was injured prior to Fenney’s
arrival at the apartment, the affidavit is no t likely to produce a more favorable result for
Fenney. Therefore, the postconviction court did not err by declining to hold an evidentiary
hearing. See Scherf, 788 N.W.2d at 508 (stating that an evidentiary hearing is unnecessary
if the newly discovered evidence is, on its fa ce, insufficient to entitle the petitioner to the
requested relief).
Still, Fenney contends that the postconviction court should have held an evidentiary
hearing based on the false te stimony of D.W. and L.H., as demonstrated by D.W.’s
affidavit. In doing so, he points to a line of cases which address a three-prong test for false
or recanted testimony.2 In order to meet this test for a new trial, Fenney must establish by
a fair preponderance of the evidence that:
(1) . . . the testimony in question was false;
(2) without that testimony the [fact-finder] might have
reached a different conclusion; and
(3) the petitioner was taken by surprise at trial or did not
know of the falsity until after trial.

Opsahl, 677 N.W.2d at 423.3

2 Fenney refers to the three-prong test for false or recanted testimony as the Larrison test.
See Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928). While Larrison has been
overruled, Minnesota courts continue to apply its test in cases involving false testimony.
Ortega v. State, 856 N.W.2d 98, 103 n.6 (Minn. 2014 ). Therefore, we, like the supreme
court in Ortega, cite to the Larrison test as it is set forth in Opsahl. See id. at 103.
3 “[T]he third prong is not a condition precedent for granting a new trial, but rather a factor
a court should consider when deciding whether to grant the petitioner’s request.” Opsahl,
677 N.W.2d at 423.

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D.W. provided false testimony, Fenney assert s, when he testified: “I performed oral
sex on her for a brief moment” without mentioning anal intercourse. Also, Fenney asserts
that L.H. provided false testimony when she re sponded to the question: “Did you engage
in any sexual contact with [D.W.] that evening?” with the answer: “When I came to, I was
naked and [D.W.’s] head was between my legs.” 4 However, even assuming these
statements constituted false testimony, Fenney has not created a dispute of material fact on
the second prong of the false testimony test—without the false testimony the district court
may have reached a different conclusion—w hich would entitle him to an evidentiary
hearing.
For reasons similar to our discus sion of the fourth prong of the Rainer test, this
purported “false testimony” neither undermines the evidence that Fe nney caused L.H.’s
injuries, nor supports Fenney’s theory that D.W. injured L.H. during consensual anal sex
prior to Fenney’s arrival.
In sum, the postconviction court did not abuse its discretion by declining to hold an
evidentiary hearing on Fenney’s claim that he is entitled to a new trial on the basis of false
trial testimony.
Affirmed.

4 L.H. testified that she had been drinking throughout the day and passed out right after
putting her daughter to bed.