                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0171

Dodge County                                                                  Gildea, C.J.

Danny Ortega, Jr., petitioner,

                      Appellant,

vs.                                                           Filed: November 19, 2014
                                                              Office of Appellate Courts
State of Minnesota,

                      Respondent.

                                 ________________________


Jennifer Congdon, Jennifer Congdon Law, Saint Paul, Minnesota, for appellant.

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul,
Minnesota; and

Paul Kiltinen, Dodge County Attorney, Mantorville, Minnesota, for respondent.
                            ________________________


                                      SYLLABUS

       Because the record establishes that even without the recanted testimony, the jury

would not have reached a different result at trial, the postconviction court did not abuse

its discretion when it denied appellant’s request for a new trial without holding an

evidentiary hearing on his witness-recantation claim.

       Affirmed.

       Considered and decided by the court without oral argument.


                                            1
                                       OPINION

GILDEA, Chief Justice.

       Following a jury trial, the district court convicted Danny Ortega, Jr. of aiding and

abetting first-degree premeditated murder and sentenced him to life in prison without the

possibility of release. We affirmed Ortega’s conviction on direct appeal. State v. Ortega

(Ortega I), 798 N.W.2d 59 (Minn. 2011).          Ortega subsequently filed a petition for

postconviction relief, alleging that Eric Bermea, who testified as an eyewitness at the

trial, provided false testimony and had recanted that testimony. The postconviction court

summarily denied the petition. Because the allegedly false testimony was cumulative to

other compelling evidence and the outcome of the proceedings would not have been

different had the testimony not been admitted at trial, we affirm.

       On February 16, 2008, Troy Ulrich was stabbed to death in a garage at his

apartment building in Claremont, Minnesota. 1 The State charged Ortega with aiding and

abetting first-degree premeditated murder, Minn. Stat. §§ 609.185(a)(1), 609.05, subd. 1

(2012). Ortega pleaded not guilty and demanded a jury trial.

       At trial, the State presented the following evidence.         Ortega lived with his

grandfather, Severo Ortega (“Severo”), across the hall from Ulrich. On the afternoon of

February 15, 2008, a group gathered in Ortega’s apartment to play cards and drink



1
       Our opinion in Ortega I, 798 N.W.2d 59, contains a detailed factual description of
the murder and the evidence presented at trial. We limit our discussion in this opinion to
facts directly relevant to this petition.




                                             2
alcohol, including Ortega, his girlfriend, and his cousins, Anthony and Eric Bermea

(“Anthony” and “Eric”). Later, Ulrich joined the group and brought beer that he shared.

       Shortly after Ulrich arrived, an argument developed between Ulrich and Ortega.

Ulrich, Eric, and Anthony then left the apartment and moved to a garage rented by the

Bermeas’ father. Eric testified that on his way out, he heard Ortega call Ortega’s father,

Danny Ortega, Sr. (“Senior”), and complain, “somebody was fucken [sic] with him.”

After that call, Senior came to Ortega’s apartment, and at trial, Ortega’s girlfriend

testified that Senior was drunk and “ranting and raving” when he got to the apartment.

       Ortega and Senior went to the garage where Ulrich, Eric, and Anthony had gone

and entered without knocking. A fight then broke out. Eric and Anthony each testified

that Senior was the initial aggressor, shoving Ulrich and asking, “What the fuck do you

have with my son?” Eric and Anthony testified that Ulrich pushed back and said that he

did not have a problem with Ortega. Eric claimed that Senior then started punching

Ulrich. Both Eric and Anthony saw Ulrich pick up a metal light stand and hit Senior with

it, causing Senior to fall down. Eric and Anthony both testified that Ortega then began

striking Ulrich with a pair of bolt cutters.

       According to Eric, Senior stood up and Senior and Ortega continued hitting

Ulrich. Eric and Anthony heard Ulrich yell “He’s got a knife,” and they saw Ulrich fall

to the ground. Neither Eric nor Anthony saw a knife in the hands of Ortega or Senior, but

Eric saw Senior reach for his pocket, and they both saw Senior make swinging motions.

Anthony claimed to see Ortega kicking Ulrich, who was on the ground, during this time.

Eric then saw that Ulrich was bleeding, and Eric and Anthony left the garage. The doctor


                                               3
performing Ulrich’s autopsy concluded that Ulrich bled to death as a result of eight stab

wounds and one puncture wound.

         The State also offered physical evidence connecting Ortega to the murder and

evidence of incriminating statements that Ortega made. In an interview with Agents

Michael Wold and Scott Mueller the day after the incident, Ortega confessed that he

stabbed Ulrich. He described the feeling as “like butter” and said that Ulrich kept saying

“stop stabbing me.” In a second interview two days later with Investigator Jeremy

Gunderson, Ortega admitted that he kicked Ulrich in the face and stabbed him at least

twice in his side. He described his thought process, saying, “I looked down before I

started kickin’ him and I was like, should I or should I not. And I was like fuck it so I

kicked him in the face and then before I ran out I (Makes noise) pop pop and then I was

gone.”

         Several witnesses recounted other inculpatory statements that Ortega made prior to

his arrest. Ortega’s girlfriend testified that Ortega called his mother and “told her that he

had stabbed somebody, and he needed a place to go.” A friend of Ortega’s testified that

Ortega said that he “did something dumb the night before” and that “there was a fight,

some people got hurt.” Another friend testified that Ortega told her “that he had killed

somebody last night,” and that Ortega laughed as he told her that he stabbed a person

who had only one arm. 2 Another friend testified that Ortega said something to the effect

of, “I did something really bad and I’m going to go down.”

2
         Ulrich had only one arm following an amputation.



                                             4
       Other witnesses testified about inculpatory statements Ortega continued to make

after his arrest. During his booking, Ortega said to an officer, “I always told myself if I

was going to come back to jail, it would be for killing someone, and it actually

happened.” When a correctional deputy was explaining the operational procedures at the

jail, Ortega spontaneously said, “I murdered somebody.” He added, “I stuck him four

times and my dad three times, and I left his ass on the floor. I mean he was dead.”

       The jury found Ortega guilty as charged and the district court convicted Ortega of

aiding and abetting first-degree premeditated murder. 3        We affirmed.     Ortega I,

798 N.W.2d at 62.    Ortega subsequently filed a petition for postconviction relief,

claiming that “information has surfaced showing that a critical witness (Eric Bermea) has

recanted testimony regarding [Ortega]’s involvement in the crime.” Ortega asserted that

he is entitled to a new trial because “his conviction was based upon witness testimony

that was false.” 4


3
       Senior also had a jury trial and was convicted of the same offense. We affirmed
his conviction. State v. Ortega, 813 N.W.2d 86 (Minn. 2012).
4
       Ortega’s petition also claimed that he is entitled to a new trial because “there is
newly discovered evidence undermining the validity of his conviction” and because he
“received ineffective assistance of trial counsel.” Other than these statements in his
petition, Ortega did not make any arguments to the postconviction court or in his brief to
this court to support a claim of newly discovered evidence or ineffective assistance of
counsel. We have held that issues not raised on appeal are waived. Jackson v. State,
817 N.W.2d 717, 721 n.3 (Minn. 2012); see also State v. Powers, 654 N.W.2d 667, 676
(Minn. 2003) (“Issues not addressed by a party’s brief are considered waived, and we will
not address those . . . motions here.”). Because Ortega did not raise an issue of newly
discovered evidence or ineffective assistance of counsel on appeal, those issues are not
before us and we do not address them further.




                                            5
       In support of his petition, Ortega filed an affidavit from Severo, his grandfather.

Severo is also Eric Bermea’s uncle. In the affidavit, Severo claims that Eric told him on

several occasions since the trial that Eric “regrets the way he testified, and that [Eric] felt

pressure to put more blame on Danny Ortega Jr. than really happened.” Specifically,

Severo claims that Eric said that “Danny Ortega Jr. and Danny Ortega Sr. did not [start]

the fight with Troy Ulrich, and that they were acting in self-defense.” Further, Severo

claims that Eric “has also said that he felt pressured to testify that Danny Ortega Jr. was

hitting Troy Ulrich when he did not see most of the fight.” 5

       The postconviction court denied the petition without an evidentiary hearing. The

court held that Ortega was “not entitled to an evidentiary hearing because he has failed to

present competent material evidence that, if found to be true following an evidentiary

hearing, could satisfy the test set forth in Larrison v. United States.”          This appeal

followed.

       We review the denial of a petition for postconviction relief for an abuse of

discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). We review legal issues de

5
       Ortega also submitted an affidavit from Senior. In that affidavit, Senior claims
that he was ready and willing to testify on Ortega’s behalf at his trial, but was “prevented
from testifying by [his] lawyers and Danny Ortega Jr.’s lawyers.” Senior claims that he
would have testified that “Danny Ortega Jr. did not stab Troy Ulrich or contribute to his
death in any way.” Senior says that “[w]hen I realized Troy Ulrich was not going to stop
fighting, I took out my pocketknife and stabbed him multiple times in self-defense.”
Ortega did not raise an argument that this affidavit represents newly discovered evidence
or evidence of ineffective assistance of counsel. Ortega references Senior’s affidavit in
his brief to our court merely as evidence that corroborates Eric’s recantation of his trial
testimony. We therefore consider Senior’s affidavit only to the extent that it corroborates
Eric’s recantation.




                                              6
novo, but review of factual matters is limited to determining whether there is sufficient

evidence in the record to sustain the postconviction court’s findings. Vance v. State,

752 N.W.2d 509, 512 (Minn. 2008). We have said that “a matter will not be reversed

unless the postconviction court exercised its discretion in an arbitrary or capricious

manner, based its ruling on an erroneous view of the law, or made clearly erroneous

factual findings.” Reed v. State, 793 N.W.2d 725, 729 (Minn. 2010).

       Minnesota Statutes ch. 590 (2012) governs petitions for postconviction relief. The

petitioner has the burden of proof to show that he is entitled to relief. See Minn. Stat.

§ 590.04, subd. 3. But the showing required for an evidentiary hearing is lower than that

required for a new trial. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012). The statute

provides that a postconviction court shall hold 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. If “the competent evidence

presented by petitioner considered in the light most favorable to the petition, together

with the arguments presented by the parties, conclusively show[s] that the petitioner is

not entitled to relief,” the postconviction court may deny the petition without holding an

evidentiary hearing. Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013). Any doubts

about whether to conduct a hearing should be resolved in favor of the defendant. Bobo,

820 N.W.2d at 516.

                                             I.

       Ortega argues in his petition that he is entitled to a new trial because Eric provided

false testimony at the trial. In determining whether a petitioner is entitled to a new trial


                                             7
based on a witness recantation, we follow the three-prong test set forth in Larrison v.

United States, 24 F.2d 82, 87-88 (7th Cir. 1928). 6 Opsahl v. State, 677 N.W.2d 414, 422

(Minn. 2004). Under the Larrison test, a postconviction court should grant a request for a

new trial based on recanted testimony when: (1) the court is reasonably well-satisfied

that the testimony given by a material witness is false; (2) without it the jury might have

reached a different conclusion; and (3) the party seeking the 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. Larrison, 24 F.2d at 87-88. The first two factors must be

satisfied for a new trial to be granted, but the third factor, while relevant, is not an

absolute condition precedent to relief. Ferguson v. State, 645 N.W.2d 437, 445 (Minn.

2002). When applying the Larrison factors to determine whether to grant an evidentiary

hearing, the postconviction court must assume the truth of the allegations in the petition.

Caldwell v. State, 853 N.W.2d 766, 772 (Minn. 2014).

       The postconviction court denied Ortega’s petition, concluding that the first prong

of the Larrison test was not met. The court concluded that the affidavit “completely

fail[s] to meet the minimal standard for an evidentiary hearing” and that the court was

“not well-satisfied that the trial testimony of Eric Bermea was false.”          The court

emphasized the hearsay nature of Severo’s affidavit, noting that “[t]here is no admissible


6
       Larrison has been overruled, see United States v. Mitrione, 357 F.3d 712, 718
(7th Cir. 2004), but we continue to apply its test in cases involving witness recantation
and false testimony. Martin, 825 N.W.2d at 739 n.6. See State v. Caldwell, 322 N.W.2d
574, 584-87 (Minn. 1982) (adopting the test set forth in Larrison).




                                             8
evidence in the current record from Eric Bermea indicating that he is recanting his trial

testimony or the details of the recantation.”      The court also concluded that Eric’s

recantation was insufficient under the second Larrison prong, stating that the court was

“hard pressed to know what Eric Bermea could now say that would allow a jury to reach

a different conclusion given the compelling evidence in the trial record of Defendant’s

guilt.”

          Ortega challenges the postconviction court’s conclusions, contending that the

court applied an incorrect legal standard and inappropriately made credibility

determinations without first conducting an evidentiary hearing.       We do not need to

determine whether the postconviction court erred in its analysis of the first prong of the

Larrison test because our analysis under the second prong of Larrison is dispositive of

this appeal. When the second prong is dispositive, we need not consider the first or third

prong. Evans v. State, 788 N.W.2d 38, 48 (Minn. 2010).

          The second Larrison prong does not ask whether the evidence is sufficient to

convict the defendant in the absence of the recanted testimony.          State v. Turnage,

729 N.W.2d 593, 599 (Minn. 2007). Instead, for an evidentiary hearing to be required,

Ortega need only show that it might have made a difference to the jury’s verdict if the

recanted testimony had not been presented at trial. Martin, 825 N.W.2d at 744. We have

held that “might” means “something more than an outside chance although much less

than . . . ‘would probably.’ ” State v. Caldwell, 322 N.W.2d 574, 585 n.8 (Minn. 1982)

(citation omitted) (internal quotation marks omitted). If the second prong is not satisfied,

the postconviction court did not err in denying Ortega’s petition without an evidentiary


                                             9
hearing. See Turnage, 729 N.W.2d at 600 (affirming the denial of a postconviction

petition because the second Larrison prong was not satisfied).

       In cases in which recanted testimony comprises the only evidence of guilt, or is a

substantially important part of the testimony as to the defendant’s guilt, we have held that

the second Larrison prong is satisfied and an evidentiary hearing should be granted. See

Martin, 825 N.W.2d at 744 (holding that the second prong was satisfied when the

allegedly false testimony constituted the “only direct evidence” identifying the defendant

as one of the shooters); Dobbins v. State, 788 N.W.2d 719, 735 (Minn. 2010) (noting that

the State had “little other direct evidence”); Ferguson v. State, 779 N.W.2d 555, 561

(Minn. 2010) (noting that the recanting witness was the only eyewitness to the shooting

who testified); Opsahl, 677 N.W.2d at 424 (concluding the second Larrison prong was

met when the recanted testimony challenged the truth of five out of seven witnesses who

testified to hearing incriminating statements); Ferguson v. State, 645 N.W.2d at 444

(holding that it was “quite possible, maybe even probable, that the jury might have

reached a different verdict” when there was very little evidence tying the defendant to the

crime outside of the recanted testimony).

       But when significant additional evidence of a defendant’s guilt was presented at

trial, besides the recanted testimony, we have concluded that the second Larrison prong

is not satisfied.   For example, in Turnage, two witnesses positively identified the

defendant as the murderer. 729 N.W.2d at 595. One witness recanted his testimony. Id.

at 597. We affirmed the denial of the petition without an evidentiary hearing, noting that

the jury would still have heard the other witness’s testimony, as well as testimony about


                                            10
inculpatory statements Turnage made. Id. at 600. Similarly, in Vance, despite recanting

affidavits from two witnesses, we held that there was no showing that the jury might have

reached a different result when there was additional testimony from other witnesses

placing Vance at the scene of the crime. 752 N.W.2d at 515-16. And in Evans, we

acknowledged that the recanting witness “was an important witness for the State,” but

held that in light of other corroborating witnesses and physical evidence, the petitioner

had not demonstrated that the jury might have acquitted him absent the false testimony.

788 N.W.2d at 48; see also Doppler v. State, 771 N.W.2d 867, 872-73 (Minn. 2009)

(holding that other evidence, including other witnesses and a confession from the

appellant, was enough to conclude that it was unlikely the jury would have reached a

different result).

       This case is akin to Turnage, Evans, Vance, and Doppler because there was

significant evidence against Ortega in addition to Eric’s account. The recantation from

Eric, as described in Severo’s affidavit, says that, contrary to Eric’s trial testimony,

Ortega and Senior did not start the fight with Troy Ulrich, that they were acting in self-

defense, and that Eric felt pressured to testify that Ortega was hitting Ulrich even though

Eric did not actually see most of the fight. Testifying similarly to Eric, Anthony claimed

that Senior started the fight and that Ortega hit Ulrich with bolt cutters. Anthony testified

that he observed the fight for 10-15 minutes, and that Eric was standing next to him.

Virtually all of the relevant information in Eric’s testimony was also available in

Anthony’s testimony. In addition to Anthony’s testimony, the State offered physical

evidence that connected Ortega to the murder and testimony from several witnesses who


                                             11
described Ortega’s inculpatory statements.          Indeed, as the State argues, “the most

compelling evidence” of Ortega’s guilt came from Ortega himself.            Because Eric’s

allegedly false testimony was cumulative to other compelling evidence of Ortega’s guilt,

we conclude that the outcome of the proceedings would not have been different had

Eric’s testimony not been admitted at trial.

       Ortega argues, however, that a “different conclusion” for the purposes of Larrison

would include a conviction of a lesser charge, as opposed to a complete acquittal. But

Ortega has not demonstrated that Eric’s recantation could result in a conviction of a lesser

charge, such as a lower degree of murder. Removing Eric’s trial testimony about the

fight changes very little about the overall evidence bearing on the fight and manner of

Ulrich’s death. In part this is true because Eric never claimed during his trial testimony

to have seen Ortega holding a knife or making stabbing motions. Even more importantly,

leaving Eric’s testimony aside, there were other witnesses who described the fight and

events leading up to the fight, there was physical evidence connecting Ortega to the

murder, and the jury heard Ortega’s own admissions. Based on all of this other evidence,

the absence of Eric’s testimony would not have changed the jury’s verdict to an acquittal

or to a conviction of a lesser charge.

       In sum, even if Eric’s alleged recantations were found to be true following an

evidentiary hearing, Ortega has not satisfied the second Larrison prong. Accordingly, we

hold that the postconviction court did not abuse its discretion in denying Ortega’s petition

without an evidentiary hearing.

       Affirmed.


                                               12
