State of Minnesota, Respondent, vs. Andrew Ismael Frost, Appellant.

State of Minnesota, Respondent, vs. Andrew Ismael Frost, Appellant. A05-1540, Court of Appeals Unpublished, May 15, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1540

 

State of Minnesota,
Respondent,
 
vs.
 
Andrew Ismael Frost,
Appellant.

 

Filed May 15, 2007

Affirmed

Minge, Judge

 

Anoka County District Court

File No. KX-04-709

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

 

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Minneapolis, MN 55405 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Following his conviction for third- and fourth-degree criminal sexual conduct, appellant Andrew Frost filed this appeal, which was stayed while he petitioned for postconviction relief.  Appellant's petition was denied.  Appellant now claims that the postconviction court erred by (a) not allowing appellant to make an offer of proof; and (b) excluding hearsay evidence regarding an alleged recantation by the victim.  We affirm. 

FACTS  

            Appellant Andrew Frost was charged with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2002), and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(b) (2002), after fourteen-year-old M.G. claimed that appellant inappropriately touched her on two occasions.  At trial, M.G. testified that the touching had occurred.  Appellant also testified and denied the allegations.  A jury found appellant guilty of both counts of criminal sexual conduct.  The district court imposed concurrent guideline sentences of one year and 23 months, stayed execution of these sentences, and placed appellant on probation. 

            Appellant then filed a notice of appeal.  But this court granted a stay of the appeal to allow appellant to file a petition for postconviction relief.  Appellant petitioned for postconviction relief, alleging that M.G. had recanted her trial testimony.  The postconviction court granted an evidentiary hearing and directed appellant to submit "an affidavit . . . substantiating in sufficient detail the facts necessary to support the allegations that the complaining witness lied during her trial testimony."  The handwritten affidavit of K.G., M.G.'s older brother, stated, in its entirety: "1.) In a conversation after the trial I asked [M.G.] ‘why didn't you tell the truth?'  [M.G.] stated ‘I'm scared.'  That's why I didn't tell the truth.  2.) In another conversation after the trial [M.G.] told me she still believes it was a dream." 

            At the postconviction hearing, appellant called one witness, K.G.  The complaining witness was not called and there was no showing that she was unavailable.  The postconviction court sustained respondent's objections to K.G.'s attempts to testify as to the alleged statements of M.G., ruling that such testimony constitutes hearsay, and that without a showing that the complaining witness was unavailable, no hearsay exception applies.  Neither party had any other witness or evidence.  The postconviction court denied appellant's request to make an offer of proof to make a record of what K.G.'s testimony would have been had the court not excluded it. 

            The postconviction court then issued an order denying the requested relief, based on its conclusion that K.G.'s testimony of what M.G. told him is inadmissible hearsay.  The postconviction court also concluded that "[t]here is no evidence that the complaining witness has either recanted her trial testimony or that she has changed her story."  This appeal follows. 

D E C I S I O N

 

            The issue presented in this appeal is whether the postconviction court erred by the manner in which it concluded the evidentiary hearing on appellant's petition for postconviction relief.  "We review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  We defer to the postconviction court's findings of fact and "will not reverse the findings unless they are clearly erroneous."  Id.  We will reverse the decision only if the postconviction court abused its discretion.  Id.  The petitioner has the burden to prove, by a preponderance of the evidence, the existence of facts warranting relief.  Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002).  Recently, the Minnesota Supreme Court discussed the postconviction court's obligation to hold an evidentiary hearing.  See State v. Turnage, 729 N.W.2d 593, 598 (Minn. 2007).

I.

            One dimension of this appeal is whether the postconviction court erred by refusing to allow appellant to make an offer of proof.  If a court excludes evidence, "the substance of the evidence [may be] made known to the court," through an offer of proof.  Minn. R. Evid. 103(a).  "[A]n offer of proof must be made to preserve the issue for review unless the substance of the evidence is apparent from its context."  Minn. R. Evid. 103 1989 comm. cmt. (emphasis added).  "In order to determine on review whether or not a substantial right of a party was affected by the exclusion of evidence the reviewing court must have some information as to the nature of the excluded testimony."  Minn. R. Evid. 103 1989 comm. cmt.  In most cases, refusal to accept an offer of proof would be error.  It handicaps the appellant and limits our ability to review the postconviction court's action.

            Here, appellant requested permission to make a "proffer record" after the postconviction court sustained hearsay objections to K.G.'s testimony and concluded the postconviction hearing.  Appellant explained that he wanted to make a proffer, not for the truth of the statements, but to establish a record for review on appeal.  But prior to calling K.G., appellant's counsel explained that "[t]he affidavit is essentially the testimony that we'd elicit from [K.G.]." 

            The postconviction court, in its order concluding the hearing and denying postconviction relief, stated that appellant "did make an offer of proof through [the] affidavit . . . ."  Here, the affidavit is included in the file on appeal, and we are able to sufficiently review appellant's claims even without an offer of proof because "the substance of the evidence is apparent from its context." Minn. R. Evid. 103 1989 comm. cmt.  On this record, we determine that the postconviction court did not err by denying appellant's request to make a further offer of proof.  However, we caution that in most situations an offer of proof should be accepted.

II.

            The other dimension of this appeal is whether the postconviction court erred by excluding K.G.'s hearsay testimony regarding the alleged recantation.  "In the discretion of the court, it may receive evidence in the form of affidavit, deposition, or oral testimony" at the postconviction hearing.  Minn. Stat. § 590.04, subd. 3 (2006). 

            "Courts have traditionally looked with disfavor on motions for a new trial based on recantations unless extraordinary or unusual circumstances exist."  Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989).  A defendant requesting a new trial due to a witness's recantation must demonstrate that "1) the testimony was false; 2) he was surprised by the testimony and was unable to counteract it or did not know it was false until after the trial; and 3) the jury might have reached a different conclusion if it had not considered the false testimony."[1]  Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).  To satisfy the first prong, the petitioner cannot merely show "a simple statement contradicting earlier testimony," or "that a witness is generally unreliable."  Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).  Rather, the petitioner must show, to a reasonable certainty, that the recantation is genuine.  Id.  We defer to the postconviction court's credibility determinations.  Id. 

            After sustaining respondent's objection to K.G.'s proposed testimony on hearsay grounds, the postconviction court concluded that "[t]here is no evidence that the complaining witness has either recanted her trial testimony or that she has changed her story."  The postconviction court considered and rejected appellant's claim that hearsay evidence should be accepted on the ground that the alleged recantation by the complaining witness was against her penal self-interest.  We agree.  The rules of evidence appear to require clear recognition of criminal liability and require "corroborating circumstances" that "clearly indicate the trustworthiness of the statement."  Minn. R. Evid. 804 (b)(3).  Both were lacking in this case.

            The affidavit, which, as previously addressed, was sufficient to serve as the offer of proof, states only that the victim said that she was scared and that the event felt like a dream, without showing that the victim's trial testimony was false.  M.G. was not called to testify at the postconviction hearing.  Appellant failed to present any other evidence of recantation.  Having previously conducted the trial, knowing the relationship of the parties, and knowing the testimony of the witnesses; the postconviction court was in a unique position to assess witness credibility and recantation claims.  Here, the postconviction court had discretion to determine that hearsay evidence by this family member was not reliable, did not clearly indicate recantation, and should not be accepted to show recantation by the complaining witness. 

            We recognize that these claims of recantation in intra-family abuse contexts are suspect.  In this unique situation, we determine that the postconviction court did not abuse its discretion by excluding K.G.'s hearsay testimony regarding statements by the complaining witness, that the affidavit, even viewed most favorably, was not persuasive evidence that the witness had recanted, and that the postconviction court did not err in concluding the hearing without allowing K.G.'s testimony regarding the alleged recantation. 

            Affirmed.

 

Dated:

[1] This three-part test is commonly referred to as the Larrison test.  See Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), overruled by United States v. Mitrione, 357 F.3d 712, 719 (7th Cir. 2004) (modifying test).