Larry Jonnell Gilbert, petitioner, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1560

Larry Jonnell Gilbert, petitioner,
Respondent,

vs.

State of Minnesota,
Appellant.

Filed November 28, 2022
Reversed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-19-24192

Mark D. Nyvold, Fridley, Minnesota (for respondent)

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Halbrooks,
Judge.
∗
SYLLABUS
I. If the state asserts that a postconviction claim is procedurally barred under State v.
Knaffla, 243 N.W.2d 737 (Minn. 1976), the postconviction court abuses its discretion by
granting relief without either explicitly determining that the claim is not procedurally
barred or explaining an implied determination to that effect.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
II. An expert witness’s trial testimony is not false under the first prong of the Larrison
test for false testimony merely because it is inconsistent with the posttrial testimony of a
different expert.
OPINION
LARKIN, Judge
In this appeal from the postconviction court’s order granting respondent a new trial,
the state argues that the postconviction court erred by not determining whether
respondent’s claims were procedurally barred and by granting a new trial based on
purportedly false testimony. We reverse.
FACTS
In 2019, law enforcement stopped a vehicle registered to respondent Larry Jonnell
Gilbert. Gilbert was riding in the passenger seat, and there were three other people in the
vehicle. Officers searched the vehicle and found a firearm in a backpack in the trunk.
Gilbert had prior felony convictions and was not authorized to possess a firearm. The state
charged him with unlawful possession of a firearm.
At trial, Amber Folsom, a forensic scientist with the Bureau of Criminal
Apprehension (BCA), testified that she received DNA samples from Gilbert and another
passenger in the vehicle. Folsom also received a DNA swab from the firearm. That swab
contained a DNA mixture from four or more individuals. The major profile matched
Gilbert’s DNA sample and did not match the other passenger’s sample.
3
Because it had “briefly rain[ed]” while the firearm was removed from the trunk of
Gilbert’s vehicle, the prosecutor asked Folsom if the rain could have affected the DNA test
results:
Q: Would you expect a firearm being exposed to rain for
approximately one minute to have any effect on a DNA sample
left on that firearm?

A: No, that’s a very short amount of time. I wouldn’t expect
the DNA to get washed away in a minute.

Q: How long do you think it would take?

A: Depending on how hard it’s raining, if it’s a light mist, it
could be all day; if it’s a hard rain, maybe hours.

Defense counsel cross-examined Folsom regarding that point:

Q: Just because you just mentioned this rain thing, have you
conducted any studies on rain and DNA washing away or are
you guessing?

A: It’s just my opinion. I haven’t studied it, no.

Q: Has anyone studied it?

A: I don’t recall reading any journal articles on the topic so it’s
just my guess or opinion.

Later, the prosecutor asked Folsom about “transfer DNA”:
Q: [H]ave you seen cases of DNA transfer in your experience
and education and training?

A: Yes.

Q: And in those cases . . . what is the cause of this transfer of
DNA?

A: It’s usually a transfer from something that has a good
amount of DNA already there. So, like, blood or saliva,
4
something that has . . . a very good source of DNA to begin
with could get transferred to another item that that person
didn’t actually have contact with.

Q: Now in a situation where there is not blood or saliva, would
you expect there to be a similar type of transfer or would you
expect there not to be a similar type of transfer?

. . . . .

A: If there is not blood or some sort of DNA- rich sample that
we’re talking about transferring to another item, I would expect
there to be a low amount of DNA that would get transferred
and would result in showing up in the minor types, if there is a
mixture. I wouldn’t expect this low amount of DNA to transfer
and end up being a major profile.

The jury found Gilbert guilty, and the district court sentenced him to serve 60
months in prison. He appealed his conviction, claiming that the district court erred in
accepting a stipulation and in instructing the jury. State v. Gilbert, No. A20 -0530, 2021
WL 668011, at *1 (Minn. App. Feb. 22, 2021), rev. denied (Minn. May 18, 2021). This
court affirmed the conviction, and the supreme court denied further review. Id. at *5.
In March 2021, Gilbert petitioned for postconviction relief. He argued that Folsom
“testified falsely about the dissipation of DNA with water and transfer DNA as it relates to
major profiles.” He requested a new trial or, in the alternative, an evidentiary hearing.
Along with his petition, Gilbert filed an affidavit from a “forensic attorney,” Jeffrey
Benson. Benson stated that part of the BCA’s required reading “for all analysts that work
on DNA” was an article on DNA transfer, which indicated that “secondary transfer” of
DNA “can result in a major profile.”
5
The state opposed Gilbert’s postconviction petition, arguing that it was procedurally
barred under Knaffla because Gilbert was aware of Folsom’s testimony “at the time of his
direct appeal.” In an informal letter, Gilbert’s counsel responded to the state’s procedural
argument and asserted that she spoke with Gilbert’s appellate attorney before he filed the
direct appeal and “alerted him of the issue of what [she] believed to be false testimony of
[Folsom].” She argued that the failure of Gilbert’s appellate attorney to raise the false-
testimony issue on direct appeal was either a result of “ineffective assistance of counsel”
or because, until Benson provided his affidavit, the issue was “not yet ripe.”1
In July 2021, the postconviction court ordered an evidentiary hearing on Gilbert’s
petition. The court’s order did not address the state’s argument that Gilbert’s claim was
procedurally barred.
At the evidentiary hearing, Gilbert called Cynthia Cale, a forensic DNA consultant.
Cale testified that she was unaware of any studies regarding water dissipation of DNA.
Cale also testified about transfer DNA, stating, “There’s been studies showing, you know,
the transfer of body fluids, which are -- tend to be the higher level DNA samples. But
there’s other publications on the transfer of skin cells and documented secondary transfer
of skin cells.” Cale testified that “you can’t use the quality of the profile to predict the
mode of transfer.”
Cale testified that Folsom’s trial testimony regarding the likelihood of a non “DNA-
rich” sample showing up as the major profile was incorrect. Cale testified, “I don’t believe

1 Gilbert did not raise an ineffective-assistance-of-counsel claim in his postconviction
petition, and the postconviction court made no findings on that issue.
6
that’s true. I had contributor inversions occur in my research from having just a ten-second
handshake up to a two-minute handshake.”2 Cale further testified:
And there’s other research that has shown that while the
-- typically, the person that handles it is going to be the most
prominent profile, it’s -- that’s not always the case. There’s
always a chance that you can see that contributor inversion, and
it’s not -- it’s dependent on the person: you know, how long
they had contact with the individual that actually handled the
weapon, those other factors influencing transfer such as
activities performed before, you know, if some kind of
touching happens between two people, and then the person that
actually ultimately ended up touching the weapon did some
other activities, that can influence transfer.

Following the hearing, the postconviction court determined that Folsom’s testimony
regarding water dissipation and DNA transfer was “false .” As to water dissipation, the
postconviction court reasoned that Folsom’s “opinion testimony was purely speculative.”
Based on the additional information from Cale, the postconviction court concluded “that
there, in fact, are no studies related to water dissipation of DNA” and that “Folsom’s
testimony related to the same was false.” As to DNA transfer, the postconviction court
reasoned that “[t]he information to which [Cale] referred and the studies she had done
herself illustrate that [Folsom’s] testimony was incorrect and misleading.” Although the
postconviction court did not find that Folsom “was intentionally misleading or false in her
testimony,” the postconviction court determined that “the information presented to the jury
was” and that “[g]iven this picture, it is clear that [Folsom’s] testimony related to transfer

2 According to Cale, a contributor inversion “means that the person who either was last to
touch the item or the only person to touch the [item] isn’t necessarily the dominant profile
on the object.”
7
DNA was false.” Finally, the postcon viction court determined that Folsom’s “false
testimony was material to the jury’s determination, and impacted its determination.” The
postconviction court therefore granted Gilbert’s request for a new trial.
The state appeals.
ISSUES
I. Did the postconviction court abuse its discretion by granting Gilbert’s request
for relief without first determining that his claim was not procedurally barred
under Knaffla?

II. Did the postconviction court abuse its discretion in concluding that Folsom’s
testimony was false and granting a new trial on that basis?

ANALYSIS
A person convicted of a crime who claims that the conviction violated the person’s
constitutional or statutory rights may petition for postconviction relief. Minn. Stat.
§ 590.01, subd. 1 (2020). We review a postconviction court’s decision to grant a new trial
for an abuse of discretion. State v. Hurd, 763 N.W.2d 17, 34 (Minn. 2009). In doing so,
we review the postconviction court’s underlying factual findings for clear error and its legal
conclusions de novo. Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013). An abuse of
discretion occurs if a postconviction court exercises its discretion in an arbitrary or
capricious manner, errs in its application of the law, or makes clearly erroneous factual
findings. Onyelobi v. State, 966 N.W.2d 235, 237 (Minn. 2021).
I.

The state argues that the postconviction court abused its discretion by granting
Gilbert’s request for postconviction relief without first determining that Gilbert’s claim
8
was not procedurally barred. An appellate court generally does not consider issues that
were not raised and decided in district court. State v. Roby, 463 N.W.2d 506, 508 (Minn.
1990); see Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Th at practice prevents
parties from attempting to raise new issues or theories for the first time on appeal. See
State v. Grunig, 660 N.W.2d 134, 136 (Minn. 2003) (“The waiver rule is an administrative
rule dictating that appellate courts will not decide issues that were not raised in the [district]
court.”). Those are not the circumstances here. In its response to Gilbert’s postconviction
petition, the state unequivocally asserted that Gilbert’s claim was “barred under State v.
Knaffla.”
“Under the Knaffla rule, if a postconviction claim was raised, known, or should have
been known when a direct appeal was filed, that claim is procedurally barred and will not
be considered in a later petition for postconviction relief.” Griffin v. State, 883 N.W.2d
282, 286 (Minn. 2016). “There are only two exceptions to this rule.” Laine v. State, 786
N.W.2d 635, 638 (Minn. 2010). An unraised claim is not Knaffla-barred “if (1) the claim
is novel or (2) the interests of fairness and justice warrant relief.” Griffin, 883 N.W.2d at
286 (quotation omitted). A postconviction court’s determination whether a claim is
Knaffla-barred is reviewed for an abuse of discretion. Reed v. State, 793 N.W.2d 725, 730
(Minn. 2010) (concluding that postconviction court did not abuse its discretion by
determining claim was Knaffla barred).
The Knaffla rule is a well-established procedural bar to postconviction relief. See
Minn. Stat. § 590.01, subd. 1 (“A petition for postconviction relief after a direct appeal
has been completed may not be based on grounds that could have been raised on direct
9
appeal of the conviction or sentence.”); Martin, 825 N.W.2d at 745 (“[W]when a direct
appeal has been taken, all matters raised therein, and all claims known or that should have
been known, will not be considered in a subsequent petition for postconviction relief.”).
Even though the state raised the Knaffla rule as a procedural bar to Gilbert’s postconviction
claim and presented argument on that issue, the postconviction court did not expressly
determine the issue. Nor did the postconviction court offer any explanation to support an
implied determination that Gilbert’s claim was not procedurally barred. In doing so, the
postconviction court exercised its discretion in an arbitrary manner. See In re Krenik, 884
N.W.2d 913, 916 (Minn. App. 2016) (“A decision based on whim or devoid of articulated
reasons is arbitrary.”), aff’d sub nom. Appeal of Krenik, 903 N.W.2d 224 (Minn. Nov. 1,
2017). We therefore conclude that the postconviction court abused its discretion.
Under the circumstances, a remand for the postconviction court to explain its
consideration of the Knaffla bar could be appropriate. See State v. Curtiss, 353 N.W.2d
262, 264 (Minn. App. 1984) (remanding because the district court failed to exercise its
discretion). But we need not do so because, as explained below, the postconviction court’s
ruling on the merits cannot be sustained. See Griffin, 883 N.W.2d at 287 (declining to
decide whether Knaffla exception applied because the petitioner’s claims lacked merit).
II.

The state challenges the postconviction court’s grant of a new trial, arguing that the
court abused its discretion by analyzing Gilbert’s claim under the Larrison test, which
10
applies when a defendant seeks a new trial based on a claim of false testimony. 3 See
Sutherlin v. State, 574 N.W.2d 428, 433 (Minn. 1998) (applying Larrison test). The state
argues that the postconviction court should have instead analyzed Gilbert’s claim under the
Rainer test for newly discovered evidence. See Rainer v. State, 566 N.W.2d 692, 695
(Minn. 1997) (setting forth test for determining whether to grant a new trial based on newly
discovered evidence).
Gilbert raised a false-testimony claim in his postconviction petition and specifically
relied on the Larrison test in doing so. The postconviction court analyzed Gilbert’s claim
under that test. Caselaw suggests that on review, an appellate court may apply the test for
newly discovered evidence instead of the Larrison test if the newly discovered evidence
test is more appropriate. See Pippitt v. State, 737 N.W.2d 221, 228 (Minn. 2007) (applying
test for newly discovered evidence rather than Larrison test). But “the Larrison standard
applies broadly to all allegations of false trial testimony.” Caldwell v. State, 853 N.W.2d
766, 775 (Minn. 2014); see Ferguson v. State, 645 N.W.2d 437, 447 (Minn. 2002) (“[T]he
proper test to apply when evaluating a claim for a new trial based on newly-discovered
evidence of falsified testimony is the three-prong Larrison test.”). For example, in State v.
Caldwell, the supreme court held that a defendant was entitled to a new trial because “the
uncontroverted testimony of the state’s fingerprint expert” was “subsequently discovered

3 Although the case that established the Larrison test has been overruled, Minnesota courts
continue to apply the test in cases involving witness-recantation and false-testimony
claims. Campbell v. State, 916 N.W.2d 502, 506 n.2 (Minn. 2018); see Larrison v. United
States, 24 F.2d 82, 87-88 (7th Cir. 1928) (establishing test), overruled by United States v.
Mitrione, 357 F.3d 712 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005).
11
to have been incorrect. ” 322 N.W.2d 574, 575 (Minn. 1982). We therefore consider the
theory presented to and decided by the postconviction court: F alse testimony under the
Larrison test.
Three factors comprise the Larrison test: (1) the court “is reasonably well-satisfied
that the testimony given [at trial] by a material witness was false,” (2) “without the
testimony, the jury might have reached a different conclusion,” and (3) the defendant “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.” Martin, 825 N.W.2d at 740. The defendant must
establish the first two Larrison factors, but a lack of proof regarding the third factor is not
fatal. State v. Turnage, 729 N.W.2d 593, 597 (Minn. 2007). An appellate court reviews a
determination that testimony is false within the meaning of the Larrison test for an abuse
of discretion. See Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006) (holding that the
postconviction court did not abuse its discretion when it determined that it was not well
satisfied that any witness gave false testimony at trial).
As to the first prong of the Larrison test, false testimony is established if a trial
witness credibly recants her trial testimony or makes credible posttrial statements that
materially contradict her trial testimony; it may also be established through other credible
evidence that a witness testified dishonestly at trial. See Dobbins v. State, 788 N.W.2d
719, 737 (Minn. 2010) (an evidentiary hearing on petitioner’s allegation that witness’s trial
testimony was false was appropriate where petitioner supported his claim with an affidavit
from another individual who swore that the trial witness confessed to the killing); Caldwell,
853 N.W.2d at 771 (“[T]he sworn affidavit of the third party in this case—an investigator
12
who interviewed all three witnesses —affirms, under the penalty of perjury, that the
investigator heard each of the witnesses recant their trial testimony.”); Martin, 825 N.W.2d
at 743 (“The affidavits of Mack- Lynch and Pettis formally recant their sworn testimony
that Martin was one of the individuals who shot Lynch.”); Ferguson v. State, 779 N.W.2d
555, 557- 59 (Minn. 2010) (concluding that postconviction petitioner was entitled to
evidentiary hearing where trial witness gave a statement after trial that contradicted his trial
testimony concerning the petitioner’s presence at scene of murder); Ferguson, 645 N.W.2d
at 446 (“Ferguson has alleged that Edwards lied at trial which, if proved, would satisfy the
first two prongs of the Larrison test.”).
However, a statement that merely contradicts earlier testimony, evidence of a
witness’s general unreliability, and a witness’s failure to give a full explanation of her trial
testimony are insufficient to establish false trial testimony under the Larrison test. Martin
v. State, 865 N.W.2d 282, 290 (Minn. 2015); Opsahl, 710 N.W.2d at 782.
In this case, Folsom has not recanted her trial testimony. And she has not made a
posttrial statement that materially contradicts her trial testimony. Moreover, Folsom’s trial
testimony regarding water dissipation of DNA was qualified. Folsom testified about what
she “expect[ed]” to occur if a firearm was exposed to rain, and under cross-examination,
she admitted that her statements were merely her “opinion” and that she had not “studied
it.” Indeed, on cross-examination, Folsom described her opinion as “just my guess.”
At the postconviction hearing, Cale testified that she was unaware of any studies
about water dissipation of DNA, but Cale acknowledged that “environmental
factors . . . have a detrimental impact on DNA.” Cale’s testimony on that point did not
13
materially contradict Folsom’s testimony. Indeed, the impeachment value of Cale’s
testimony is debatable given Folsom’s admission that her opinion was just a “guess.” On
this record, the postconviction court abused its discretion by determining that Folsom’s
testimony regarding water dissipation was false under the first prong of the Larrison test.
See Martin, 865 N.W.2d at 290 (“[A] statement merely contradicting earlier testimony or
a conclusion that a witness is generally unreliable is not sufficient.”).
As to transfer DNA, Folsom testified that based on her experience, DNA transfer
“usually” results from a “good source” of DNA, such as blood or saliva. Folsom testified
that if such a source w ere not present, she would expect “a low amount of DNA” to be
transferred and that such a transfer would show up in the “minor types,” and not in the
major profile.
At the posttrial hearing, Cale acknowledged that “body fluids” tend to have “higher
level DNA samples,” but she testified that skin cells may be a source for DNA transfer and
that “you can’t use the quality of the profile to predict the mode of transfer.” Cale further
testified that “typically” the person handling an item will provide “ the most prominent
profile,” but sometimes the person who touched an item last, or the only person to touch
the item, does not show up as the “dominant profile.”
Although Cale’s testimony regarding DNA transfer had impeachment value, her
testimony did not render Folsom’s testimony false under the first prong of the Larrison
test. Experts may disagree about certain aspects of their respective science. When that
happens, the fact-finder must determine the credibility of the experts and how much weight
to give to a particular piece of testimony. See State v. Ostlund, 416 N.W.2d 755, 756
14
(Minn. App. 1987) (“Where reputable doctors present conflicting expert opinions on the
cause of death, the trier of fact must determine the credibility of the witnesses and the
weight to be given their testimony.”), rev. denied (Minn. Feb. 24, 1988). But a difference
of opinion between two experts alone is generally not a basis to deem the trial testimony
of one of the experts false. See Martin, 865 N.W.2d at 290 (noting that “a statement merely
contradicting earlier testimony” does not satisfy the first prong of the Larrison test).
Gilbert likens this case to Caldwell, in which the state’s fingerprint expert testified
at trial that a fingerprint found on a significant piece of evidence “was identical to the
known print of [Caldwell’s] right thumb.” 322 N.W.2d at 580. After trial, three additional
experts analyzed the fingerprint and concluded it could not have come from Caldwell. Id.
at 582. In a subsequent, related trial, the prosecutor told the district court “that he would
ask the jury to disregard the latent print as a misidentified fingerprint.” Id. The supreme
court concluded that the testimony of the state’s expert “was damning—and it was false.”
Id. at 586.
The Caldwell case is readily distinguishable from this case. In Caldwell, three
experts opined that the challenged expert testimony could not have been true, and the state
effectively conceded that the fingerprint had been misidentified by its expert. Id. at 582.
We have no such concession here, and Cale’s sole opinion is not comparable to the three
consistent expert opinions in Caldwell. Unlike the supreme court in Caldwell, we cannot
say that “there appears to be no doubt” that Folsom’s testimony was inaccurate. Id. at 587.
In sum, “ the first prong of the Larrison test is not met by a simple statement
contradicting earlier testimony.” Pippitt, 737 N.W.2d at 227 (quotation omitted). “It is
15
likewise not sufficient under Larrison to determine that a witness is generally unreliable.”
Id. (quotation omitted). Those were the circumstances before the postconviction court.
The postconviction court therefore abused its discretion by determining that Folsom’s
testimony regarding transfer DNA was false under the first prong of the Larrison test.
DECISION
The postconviction court abused its discretion by granting Gilbert’s request for
postconviction relief without either expressly determining that Gilbert’s claim was not
procedurally barred under Knaffla or explaining an implied determination to that effect.
The postconviction court further abused its discretion by granting a new trial based on
testimony that was not shown to be false within the meaning of Larrison.
Reversed.