Thomas Robert Tichich, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1063

Thomas Robert Tichich, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 17, 2023
Affirmed
Larson, Judge

Hennepin County District Court
File No. 27-CR-17-5883

Stacy L. Bettison, Bettison Law, Minnetonka, Minnesota (for appellant)

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

Mary F. Moriarty, Hennepin County Attorney, Anna R. Light, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Larson, Judge; and Klaphake,
Judge.
*
SYLLABU S
Guilty verdicts for completed third -degree criminal sexual conduct , Minn. Stat.
§ 609.344, subd. 1( d) (2016), and attempted third -degree criminal sexual conduct, Minn.
Stat. § 609.17, subd. 1 (2016), are not legally inconsistent.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
OPINION
LARSON, Judge
Appellant Thomas Robert Tichich challenges the postconviction court’s decision to
deny his petition for postconviction relief. W e affirm.
FACTS
After a night out drinking in 2016, Y.R., A.D., and appellant went to Y.R.’s home.
A.D. was very intoxicated and “passed out” on Y.R.’s couch. Y.R. told appellant that he
could sleep on the other couch, and Y.R. went upstairs to sleep. Appellant followed Y.R.
upstairs and made a series of unwanted advances toward Y.R., resulting in Y.R. moving to
a different bedroom. Y.R. documented the unwanted advances in a series of text messages
to her daughter.
After lying in a different bedroom for several minutes, Y.R. decided she wanted
appellant to leave her house. Y.R. went downstairs and observed appellant naked
“with . . . what appeared to be his penis in [A.D.’s] face .” At the time, A.D. appeared to
be “completely passed out,” and lying on her side facing the front of the couch with her
knees pulled up. Y.R. observed that appellant was “trying to put [his] penis in her mouth”
and “his hips were . . . thrusting towards [A.D.’s] face.” Y.R. took two photographs in
rapid succession1 before yelling at appellant to get out of her house. Y.R. made appellant
leave immediately. A.D. did not awaken during the commotion.

1 The photographs were admitted into evidence at trial. The first photograph shows
appellant naked, facing A.D.’s prone figure and blocking the camera’s view of her head,
with his left knee on the couch, his pelvis angled toward A.D.’s head, and his right hand in
3
Y.R. called the police department , and police officers responded to the call. The
officers struggled to wake A.D. until they used a pressure-point technique. Whe n A.D.
awoke, she was “groggy,” “incoherent,” and unaware of what had happened.
Y.R. transported A.D. to the Hennepin County Medical Center and medical
personnel conducted a sexual -assault examination. A sexual assault nurse examiner
(SANE nurse) swabbed A.D.’s perioral area2 and the inside of A.D.’s mouth. A Bureau of
Criminal Apprehension scientist (BCA scientist) tested the swabs and found DNA that
matched appellant’s profile on the perioral swab, but not the oral swab.
Respondent State of Minnesota charged appellant by amended complaint with
completed third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(d) (2016),3
attempted third -degree criminal sexual conduct, Minn. Stat. § 609.17, subd. 1 (2016),
completed fourth-degree criminal sexual conduct, Minn. Stat. § 609.345, subd. 1( d)
(2016), and attempted fourth -degree criminal sexual conduct , Minn. Stat. § 609.17,
subd. 1. Prior to trial, the district court dismissed the completed and attempted fourth -
degree criminal-sexual-conduct charges.
At trial, the state called several witnesses, including Y.R., the SANE nurse, and the
BCA scientist. Y.R. testified consistently with the facts described above. As relevant here,
the SANE nurse testified regarding the collection of the DNA samples . The SANE nurse

front of his pelvis. The second photograph shows A.D. and appellant in the same position,
except appellant’s right arm is braced against the arm of the couch next to A.D’s head.
2 Perioral swabs take samples from around the outside of the mouth, excluding the lips .
3 The legislature re codified Minn. Stat. § 609.344, subd . 1(d) (2016), to Minn. Stat.
§ 609.344, subd. 1(b) (2022). The provisions have identical language.
4
stated that while collecting the DNA samples, she did not touch A.D .’s lips because the
lips do not yield useful evidence due to the “the patient’s own saliva and sloughing of
cells.” The BCA scientist testified as an expert witness. The BCA scientist opined that it
was not surprising she did not find male DNA in A.D.’s m outh. The BCA scientist
explained that foreign proteins are quickly broken down by digestive enzymes or washed
away during ingestion of liquids, with the result that DNA is rarely detected in mouths
even when contact was recent. The BCA scientist further testified that DNA may be
transferred from one person’s skin to another person’s skin, which the state relied upon to
argue that, notwithstanding the absence of DNA in the victim’s mouth, penetration had
occurred.
The jury found appellant guilty of completed and attempted third -degree criminal
sexual conduct . The district court convicted appellant of completed third-degree criminal
sexual conduct , and sentenced appellant to 48 months in prison and a ten -year period of
conditional release following confinement.
Trial counsel represented appellant in his direct appeal. There, appellant challenged
the sufficiency of evidence and the district court ’s decision to impose a presumptive-
guideline sentence. We affirmed on both grounds. State v. Tichich, A18- 1411, 2019 WL
4409394 (Minn. App. Sept. 16, 2019), rev. denied (Minn. Dec. 31, 2019). The supreme
court denied review on December 31, 2019.
Appellant filed a petition for postconviction relief on January 18, 2022. Appellant
included an affidavit from a forensic scientist, which challenged the SANE nurse’s and
BCA scientist’s trial testimony. Appellant requested an evidentiary hearing and argued he
5
was entitled to a new trial on multiple bases, including: (1) ineffective assistance of tria l
and appellate counsel claims premised on legally -inconsistent-verdicts and prosecutorial-
misconduct arguments and (2) allegations the SANE nurse and BCA scientist testified
falsely at trial . The postconviction court summarily denied appellant’s petition. The
postconviction court determined an evidentiary hearing was unnecessary because the
legally inconsistent-verdicts and prosecutorial -misconduct arguments raised purely legal
issues and, even if all facts were construed in appellant’s favor on the false -testimony
claim, appellant would not be entitled to a new trial. 4 The postconviction court found that
appellant’s petition was statutorily time-barred and Knaffla-barred.5 The postconviction
court then reached the merits of appellant’s claims, determining that : (1) even if the SANE
nurse and BCA scientist testified falsely, the jury would have found appellant guilty;
(2) attempted and completed third-degree criminal-sexual-conduct convictions are not
legally inconsistent; and (3) the prosecutor’s statements during closing argument were not
misconduct.
This appeal follows.

4 On appeal, appellant only challenges the district court’s decision to deny an evidentiary
hearing on his claim that he received ineffective assistance of counsel for failure to raise
the legally inconsistent-verdicts argument. But we agree with the distr ict court that this is
a legal issue that can be resolved without an evidentiary hearing. See Minn. Stat. § 590.04,
subd. 1 (2022); Jama v. State, 756 N.W.2d 107, 111 (Minn. App. 2008) (“An evidentiary
hearing is not required unless there are material fac ts in dispute which must be resolved to
determine the postconviction claim on its merits.”).
5 Under the Knaffla rule, “once a direct appeal has been taken, all claims raised in the direct
appeal and all claims that were known or should have been known but were not raised in
the direct appeal are procedurally barred”—subject to certain exceptions. Colbert v. State,
870 N.W.2d 616, 625- 26 (Minn. 2015) (citing State v. Knaffla , 243 N.W.2d 737, 741
(Minn. 1976)).
6
ISSUES
I. Was appellant’s petition for postconviction relief statutorily time-barred?
II. Is appellant entitled to a new trial due to ineffective assistance of trial or appellat e
counsel?

III. Is appellant entitled to a new trial due to false testimony during trial?

ANALYSIS
Appellant challenges the postconviction court’s decision to deny his petition for
postconviction relief. Appellant argues the postconviction court erred because: (1) his
petition was not time -barred; (2) trial and appellate counsel’s assistance was ineffective
because he failed to raise the legally inconsistent-verdicts and prosecutori al-miscond uct
arguments before the trial court and on direct appeal ; and (3) false testimony warrants a
new trial.
A defendant may seek postconviction relief “to vacate and set aside the
judgment . . . or grant a new trial . . . or make other disposition a s may be appropriate.”
Minn. Stat. § 590.01, subd. 1 (2022). Allegations in a postconviction petition must be
“more than argumentative assertions without factual support.” Matakis v. State , 862
N.W.2d 33, 37 (Minn. 2015) (quotation omitted). A petitioner seeking postconviction
relief has the burden of establishing by “a fair preponderance of the evidence” the facts
alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2022).
In reviewing a postconviction court’s decision, we determine “whet her there is
sufficient evidence to sustain the postconviction court ’s findings, and a postconviction
court’s decision will not be disturbed absent an abuse of discretion.” Zenanko v. State, 688
7
N.W.2d 861, 864 (Minn. 2004) (quoting Sanders v. State , 628 N.W.2d 597, 600 (Minn.
2001)). We “review a postconviction court ’s determinations of legal issues de
novo.” Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).
With this standard in mind, w e consider appellant’s claims in turn.
I.
Appellant and the state agree that the postconviction court erred when it determined
appellant’s postconviction petition was statutorily time-barred. We agree.
Under Minn. Stat. § 590.01, subd. 4(a) (2022), “No petition for postconviction relief
may be filed more than two years after the later of: (1) the entry of judgment of convi ction
or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s
direct appeal.” If a petitioner files a direct appeal, subject to certain exceptions, they may
not file a petition for postconviction relief more than two years after their conviction is
“final.” Moua v. State , 778 N.W.2d 286, 288 (Minn. 2010). As relevant to this case, a
petitioner’s conviction is “final” 90 days after the Minnesota Supreme Court denies review
of our decision on direct appeal. See Berkovitz v. State, 826 N.W.2d 203, 207 (Minn. 2013)
(“When an appellant does not file a petition for certiorari with the Supreme Court of the
United States following [the Minnesota Supreme Court’s] decision on direct appeal, the
appellant’s conviction becomes ‘final’ 90 days after [the Minnesota Supreme Court’s]
decision . . . .”).
Here, appellant filed a direct appeal. Tichich, 2019 WL 4409394 at *1. We affirmed
appellant’s conviction, and the supreme court denied review on December 31 , 2019.
Appellant’s conviction became final 90 days after the supreme court denied review , on
8
March 30, 2020, meaning appellant needed to file his postconviction petition before March
30, 2022, to comply with Minn. Stat. § 590.01, subd. 4(a). See Berkovitz, 826 N.W.2d at
207.
Appellant filed a petition for postconviction relief on January 18, 2022, well within
the two-year limit. Therefore, the postconviction court erred when it dismissed appellant’s
petition on the basis that it was statutorily time-barred, and we proceed to consider
appellant’s additional arguments.
II.
Appellant claims the postconviction court erred when it determined his trial and
appellate counsel rendered effective assistance. An ineffective -assistance-of-counsel
claim involves mixed questions of law and fact, which we review de novo. State v.
Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
“An ineffective assistance of counsel claim is an alleged violation of the right to
reasonably effective assistance of counsel as guaranteed by the Sixth Amendment of the
United States Constitution.” Id. (citing Strickland v. Washington, 466 U.S. 668, 684- 86
(1984)); see also U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6. We analyze
ineffective-assistance-of-counsel claims under the two -prong Strickland test. Rhodes, 657
N.W.2d at 842. A defendant must show that: (1) his counsel’s performance fell below an
objective standard of reasonableness (performance prong) and (2) there is a reasonable
probability that, but for counsel’s errors, the result would have been different (prejudice
prong). Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987). We evaluate ineffective -
assistance-of-trial-counsel and appellate -counsel claims using the same standard. Swenson
9
v. State, 426 N.W.2d 237, 239-40 (Minn. App. 1988). “A court may address the two prongs
of the test in any order and may di spose of the claim on one prong without analyzing the
other.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006).
Under the performance prong, “ To act within an objective standard of
reasonableness, an attorney must provide his or her client with the representation that an
attorney exercising the customary skills and diligence . . . [that] a reasonably competent
attorney would perform under similar circumstances.” State v. Gustafson, 610 N.W.2d
314, 320 (Minn. 2000) (quotation omitted). A strong presumption exists “that a counsel’s
performance falls within the wide range of reasonable professional assistance.” State v.
Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Applying the prejudice prong, “a ‘reasonable probability’ means ‘a probability
sufficient to undermine confidence in the outcome.’” Rhodes, 657 N.W.2d at 842 (quoting
Strickland, 466 U.S. at 694). Thus, a “defendant must show that counsel’s errors ‘actually’
had an adverse effect in that but for the errors the result of the proceeding probably would
have been different.” Gates, 398 N.W.2d at 562 (citing Strickland, 466 U.S. at 693- 94).
To analyze the prejudice prong, we consider “the totality of the evidence before the judge
or jury in making its determination.” Rhodes, 657 N.W.2d at 842.
Here, appellant claims he received ineffective assistance of counsel because: (1) his
trial counsel failed to move for a new trial when the jury ret urned legally inconsistent
verdicts; (2) his appellate counsel failed to raise the legally inconsistent-verdicts argument
on direct appeal; (3) his trial counsel failed to object to prosecutorial misconduct that
occurred during closing argument; and (4) hi s appellate counsel failed to raise the
10
prosecutorial-misconduct argument on direct appeal. We agree with appellant that his
ineffective-assistance-of-counsel claim s are not Knaffla-barred.6 See Jama, 756 N.W.2d
at 112-13 (concluding that “where trial and appellate counsel are the same,” ineffective -
assistance-of-counsel claims are not Knaffla-barred). We consider in turn whether
appellant’s legally inconsistent-verdicts or prosecutorial-misconduct arguments have m erit
and, therefore, form a basis for appellant’s ineffective-assistance-of-counsel claim s. See
State v. Dickerson, 777 N.W.2d 529, 535 (Minn. App. 2010) ( “[F]ailure to raise meritless
claims . . . cannot provide the basis for a claim of ineffective assis tance.”).
A. Ineffective assistance of counsel – legally inconsistent verdicts
Appellant first claims that he received ineffective assistance of counsel because his
trial counsel failed to move for a new trial after the jury returned legally inconsistent
verdicts and his appellate counsel failed to raise the issue on direct appeal. Appellant
premises this claim on his argument that the district court erred when it convicted him of
completed third -degree criminal sexual conduct because th e jury’s guilty verdict for that
offense is legally inconsistent with the jury’s guilty verdict for attempted third -degree

6 We observe that, although appellant raised the ineffective assistance of trial and appellate
counsel claims in his petition, the district court analyzed the claim s in a footnote and only
discussed the legally -inconsistent-verdicts argument. Here, we reach the legally
inconsistent-verdicts and prosecutorial -misconduct arguments to the extent they underpin
appellant’s ineffective -assistance-of-counsel claim s because these arguments were
properly raised in the petition. The district court did determine that , as independent bases
for a new trial , appellant’s legally inconsistent-verdicts and prosecutorial -miscond uct
arguments were Knaffla-barred. Because appellant’s properly raised ineffective -
assistance-of-counsel claims require us to assess the legally inconsistent-verdicts and
prosecutorial-misconduct arguments , we do not separately analyze those arguments under
Knaffla.
11
criminal sexual conduct. “Whether verdicts are legally inconsistent is a question of law,
which we review de novo.” Steward v. State, 950 N.W.2d 750, 755 (Minn. 2020).
“Convicting a defendant . . . after a jury renders legally inconsistent verdicts i s an
error.” Id. To evaluate whether two verdicts are legally inconsistent, we must consider the
elements of the challenged offenses. See id. at 755-56. “Verdicts are legally inconsistent
only when proof of the elements of one offense negates a necessary element of another
offense.” Id. at 755 (quotation omitted). We conclude the language in both statutes plainly
sets forth the elements of these offenses and, when applying the plain language, the verdicts
are legally consistent. See State v. P akhnyuk, 926 N.W.2d 914, 920 (Minn. 2019) (“The
plain language of the statute controls when the meaning of the statute is unambiguous.”).
Here, for the jury to find appellant guilty of completed third-degree criminal sexual
conduct, the state needed to prove: (1) appellant knew or had reason to know that A.D. was
physically helpless and (2) he intentionally engaged in sexual penetration of A.D. Minn.
Stat. § 609.344, subd. 1( d); see also State v. Khalil , 956 N.W.2d 627, 632 (Minn. 2021)
(discussing the elements of Minn. Stat. § 609.344, subd. 1( d)); State v. Wenthe , 865
N.W.2d 293, 302 (Minn. 2015) (“Generally, criminal sexual conduct offenses require only
an intent to sexually penetrate . . . .”). For a jury to find appellant guilty of attempted third-
degree criminal sexual conduct , the state needed to prove : (1) appellant’s “intent to
commit” the elements of a completed third -degree criminal sexual conduct and (2) that he
took a “substantial step toward” doing so. Minn. Stat. § 609.17, subd. 1.
Comparing the governing statutes, the elements of completed third- degree criminal
sexual conduct do not negate the elements of attempted third -degree criminal sexual
12
conduct. The inverse is also true; the elements of attempted third -degree criminal sexual
conduct do not negate the elements of completed third -degree criminal sexual conduct.
Moreover, logically, there is nothing inconsistent with a person intending to commit third -
degree criminal sexual conduct and then moving on to complete the crime.
Appellant disagrees, arguing that Minnesota caselaw adds a tacit third element to
attempt—that the underlying substantive crime is not completed —which completed third -
degree criminal sexual conduct directly negates. To support his argument, appellant cites
State v. Dumas , in which the supreme court defined attempt as “an overt act or acts done
with intent to commit the particular crime, and tending, but failing , to accomplish it.” 136
N.W. 311, 313 (Minn. 1912) (emphasis added). But the supreme court in Dumas
interpreted an older version of the attempt statute, which stated: “An act done with intent
to commit a crime, and tending, but failing , to accomplish it, is an attempt to commit that
crime.” Id. (quoting Minn. Rev. Laws § 4771 (1905)). The legislature removed the “but
failing, to accomplish it” language from the attempt statute in 1963.7 Minn. Stat. § 609.17,
amended by 1963 Minn. Laws. ch. 753, art. I, at 1198. Thus, the legislature abrogated pre-
1963 caselaw interpreting the attempt statute to require proof that the underlying crime was
not completed.

7 Appellant also argues that Minn. Stat. § 609.17’s legislative history shows the legislature
did not intend to change the statute’s meaning when i t removed the “b ut failing, to
accomplish it” language. We do not reach this issue because we conclude that Minn. Stat.
§ 609.17 is unambiguous. State v. Kirby , 899 N.W.2d 485, 492 (Minn. 2017)
(“[L]egislative history is relevant only if the statute is ambiguous.”).
13
Appellant nevertheless argues that Minnesota courts have continued to require proof
of non-completion even after the 1963 statutory modification. To support this argument,
appellant relies on State v. Noggle, 881 N.W.2d 545 (Minn. 2016) , and State v.
Lewandowski, 443 N.W.2d 551 (Minn. App. 1989). But neither case requires this court to
read elements into the attempt statute that are not there. See, e.g., State v. Vasko, 889
N.W.2d 551, 557 (Minn. 2017) (“We will not read into a statute a provision that the
legislature has omitted, either purposely or inadvertently.” ( quoting Reiter v. Kiffmeyer,
721 N.W.2d 908, 911 (Minn. 2006)) ).
In Noggle, the supreme court held that a conviction for attempted third -degree
criminal sexual conduct did not trigger a ten- year conditional-release penalty set forth in
Minn. Stat. § 609.3455, subd. 6 (2014). 881 N.W.2d at 550- 51. In doing so, the supreme
court stated that attempt is a “separate crime[ ] with distinct elements” from the completed
crime. Id. at 549 (quotation omitted). The supreme court ultimately held the ten -year
conditional-release penalty did not apply, because the legislature did not list an attempt to
commit an enumerated offense as a crime requiring registration . Id. at 550. Noggle di d
not address the relationship between the elements of a completed and attempted offense
and does not control our analysis.
Lewandowski is similarly distinguishable. There, we decided a def endant who had
been convicted and sentenced, but later failed to timely report to begin serving his sentence,
was not in constructive custody for purposes of an escape offense . Lewandowski , 443
N.W.2d at 554. In dicta, we stated hypothetically that if th e defendant’s conduct were to
constitute an escape, it would be “a completed escape or nothing[,]” and we clarified that
14
an “attempted” escape was “confined to a defendant in actual custody who struggled to
break free or momentarily got away and was quickly recaptured.” Id. at 554 n.1. Like
Noggle, Lewandowski did not address the relationship between the elements of a completed
and attempted offense, and, even if it did, we are not bound by dicta in our prior decisions ,
see State v. Soukup, 656 N.W.2d 424, 430-31 (Minn. App. 2003) , rev. denied (Minn. Apr.
29, 2003).
For these reasons, we conclude that guilty verdicts for completed and attempted
third-degree criminal sexual conduct are not legally inconsistent. Because it was not legal
error for the district court to enter judgment of conviction for completed third -degree
criminal sexual conduct after the jury returned guilty verdicts for both offenses , trial
counsel’s performance did not fall below an objective standard of reasonableness when he
failed to move for a new trial on this issue , and appellate counsel’s performance did not
fall below an objective standard of reaso nableness when he failed to raise the claim on
direct appeal. Dickerson, 777 N.W.2d at 535 (concluding “failure to raise meritless claims
does not constitute deficient performance”). Therefore, with regard to the legally
inconsistent-verdicts argument, appellant has failed to show he received ineffective
assistance of trial or appellate counsel.
B. Ineffective assistance of counsel – prosecutorial misconduct
Appellant also claims that he received ineffective assistance of counsel because his
trial counsel failed to object to statements that constituted prosecutorial misconduct in
closing argument, and because appellate counsel failed to raise the prosecutorial -
misconduct issue on d irect appeal. To support this claim, a ppellant argues the prosecutor
15
engaged in misconduct when he: (1) mischaracterized evidence, summarizing Y.R.’s
testimony to state that Y.R. saw appellant “raping” A.D., when Y.R. did not use the word
“rape”; (2) bol stered Y.R.’s credibility ; (3) appealed to the passions of the jury,
downplaying evidence appellant admitted and stating it was not “If the gloves don’t fit,
you must acquit”; and (4) belittled the defense, characterizing “the defense argument” as
“what men have been saying to try and escape charges of rape for thousands of years .”
Assuming without deciding that the prosecutor’s statements were error, and
irrespective of whether the failure to object to these statements constituted objectively
unreasonable representation, appellant has failed to prove that there is any reasonable
probability that the result of the proceeding would have been different but for counsel’s
alleged errors. See Gates, 398 N.W.2d at 562. Had counsel contemporaneously objected
to the state’s remarks, and had the district court sustained the objections and inst ructed the
jury to disregard those statements, the evidentiary strength of the state’s case was such that
there is no reasonable likelihood that the jury would have returned different verdicts.
In evaluating the probability that prosecutorial misconduct affected the jury’s
verdicts, we must consider (1) the strength of the evidence against appellant ; (2) “the
pervasiveness of the erroneous conduct ”; and (3) whether appellant “had an opportunity to
rebut any improper remarks.” State v. Peltier , 874 N.W.2d 792, 805- 06 (Minn. 2016).
Here, strong evidence supported the jury’s verdict s, including: Y.R.’s testimony, two
pictures of appellant naked with his pelvis in front of A.D.’s face, contemporaneous text
messages, DNA evidence, and expert testimony suppor ting the inference that the DNA
collected from A.D.’s face was consistent with appellant penetrating A.D.’s mouth. See
16
Tichich, 2019 WL 4409394 at *2 (“From these facts the only reasonable inference from
the circumstances proved is that [appellant] penetr ated A.D.’s mouth with his penis.”).
Further, the alleged misconduct was not pervasive, occurring only during closing
arguments, and appellant had the opportunity to respond to most of the alleged misconduct
in his own closing remarks. On this record, we cannot conclude that there is a reasonable
likelihood that, absent the prosecutor’s remarks , the jury’s verdicts would have been
different.
Because appellant cannot demonstrate that his trial counsel’s failure to object to the
prosecutor’s closing remarks was prejudicial, he has failed to establish that he received
ineffective assistance of trial counsel. See Gates, 398 N.W.2d at 562 (“[D]efendant must
show that counsel’s errors ‘actually’ had an adverse effect” on the verdict .”). Further,
because any claim in the previous appeal that trial counsel was ineffective for not objecting
to the prosecutor’s argument would have been meritl ess for this same reason, appellant’s
claim of ineffective assistance of appellate counsel similarly fails. See Dickerson, 777
N.W.2d at 535.
Therefore, with regard to the prosecutorial -misconduct argument, appellant has
failed to show that he received ineffective assistance of trial or appellate counsel.
III.
Appellant finally argues that the postconviction court abused its discretion when it
denied him postconviction relief based on his false-testimony claim. Appellant asserts that
the SANE nurse and the BCA scientist testified falsely at trial. Specifically, appellant
challenges the SANE nurse’s testimony that lip swabs were unreliable evidentiary sources
17
of DNA and the BCA scientist’s statements regarding DNA transfer. Appellant included
an expert affidavit with his postconviction petition opining that this testimony was false.
We review th e district court’s decision for an abuse of discretion. Gilbert v. State , 982
N.W.2d 763, 770 (Minn. App. 2022), rev. granted (Minn. Feb. 22, 2023).
We recently held that Minnesota courts should apply the Larrison 8 test when
addressing a false-testimony claim in a postconviction petition. Id.9 The Larrison test sets
forth three criteria: (1) the court is “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.” Id. (quoting
Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013)). The first two prongs are compulsory.
Opsahl v. State, 710 N.W.2d 776, 782 ( Minn. 2006). “The third prong is relevant, but not
an ‘absolute condition precedent’ to a new trial.” Martin, 825 N.W.2d at 740 (quoting
Ferguson v. State, 779 N.W.2d 555, 559 (Minn. 2010)) .

8 Although the case that established the Larrison test has been overruled, Minnesota courts
continue to apply the Larrison test in cases involving witness -recantation and false -
testimony claims. Campbell v. State , 916 N.W.2d 502, 506 n.2 (Minn. 2018) ; see
also 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, 718 (7th Cir. 2004) , vacated
on other grounds, 543 U.S. 1097 (2005).
9 Here, as in Gilbert, the state argues the postconviction court should have analyzed the
false-testimony claim under the standard set forth in Rainer v. State , 566 N.W.2d 692, 695
(Minn. 1997) . We conclude that our decision in Gilbert that the postconviction court
appropriately applied the Larrison test is dispositive of this issue. See Gilbert, 982 N.W.2d
at 769 (“[T]he Larrison standard applies broadly to all allegations of false trial test imony.”
(quoting Caldwell v. State, 853 N.W.2d 766, 775 (Minn. 2014))).
18
Here, the postconviction court determined petitioner’s false-testimony claim failed
to satisfy the Larrison test.10 We discern no abuse of discretion in the postconviction
court’s decision to deny appellant’s postconviction petition on this ground.
Applying the first Larrison criterion, we conc luded in Gilbert that “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 .” Gilbert, 982
N.W.2d at 770. But “ 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 .” Id.
Here, like in Gilbert, neither the SANE nurse nor the BCA scientist have recanted
their trial testimony. See id. And neither has made a posttrial statement that contradicted
their trial testimony. See id. Further, as the postconviction court found, appellant’s
expert’s affidavit did not directly contradict the testimony. T o support her claim that lip
swabs provide good evidentiary samples, appellant’s expert cited a study which found that
only 15% of swabs from the lips and the perioral area led to the identification of a person
of interest. But that study did not differentiate swabs to the lips and swabs to the perioral
area. And the principal criticism appellant’s expert directed at the BCA scientist was

10 The postconviction court also determined that appellant’s false -testimony claim was
Knaffla barred. Because we conclude the postconviction court did not abuse its discretion
when it dismissed the false -testimony claim on the merits, we need not reach the Knaffla
issue.
19
merely that her testimony was irrelevant. This evidence is insufficient to meet the first
Larrison criterion.
The result is the same under the second Larrison criterion. There, we evaluate
“whether the petitioner has demonstrated that without the [false] testimony, the jury might
have reached a different conclusion.” State v. Turnage, 729 N.W.2d 593, 598- 99 (Minn.
2007) (quotation omitted) . The question is not “ whether the evidence was sufficient to
convict the defendant in the absence of the [false] testimony,” rather we must assess
“whether the jury might have found the defendant not guilty.” Id.
Here, we agree with the postconviction court that the strength of the state’s case was
such that the jury would still have found the defendant guilty without the challenged
testimony. The jury heard Y.R.’s testimony, viewed two pictures of appellant naked with
his pelvis in front of A.D.’s face, read contemporaneous text messages between Y.R. and
her daughter, and learned that appellant’s DNA appeared in A.D.’s perioral region. Thus,
the jury would not have rendered a different verdict even if it had not heard the allegedly
false testimony.
For these reasons, we conclude the postconviction court did not abuse its discretion
when it denied appellant’s postconviction petition based on the false-testimony claim
because appellant failed to meet the requirements of the Larrison test.

20
DECISION
The postconviction court erred when i t determined appellant’s postconviction
petition was statutorily time-barred. But the postconviction court did not abuse its
discretion when it denied appellant’s petition for postconviction relief.
Affirmed.