                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-0978

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Justin Michael Fenney,
                                       Appellant.

                                 Filed April 27, 2015
                                      Affirmed
                                    Larkin, Judge

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


Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of first-degree criminal sexual conduct,

arguing that the evidence is insufficient to sustain his conviction and that he is entitled to

a new trial based on a witness’s posttrial recantation. We affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Justin Michael Fenney with

first-degree criminal sexual conduct and third-degree assault against L.H. The complaint

alleged that Fenney severely beat L.H. and sodomized her with a toilet-brush handle,

causing L.H. to sustain two black eyes, a broken nose, extensive bruising, and a

laceration to the area between her rectum and vagina, which required surgical repair.

Fenney waived his right to a jury trial on the issue of guilt and the presence of

aggravating factors, and the case was tried to the district court. The district court’s

findings of fact are summarized below.

       Fenney and L.H. had been in a tumultuous 11-year relationship and have one child

in common. On October 25, 2012, L.H. drank alcohol throughout the day and into the

evening and was engaged in a sexual act with another man on her living-room couch

when Fenney walked into her apartment around 10:00 p.m. Fenney was furious. L.H.

ran into her bedroom, where their nine-year-old daughter was sleeping, and closed the

door. As Fenney kicked the bedroom door open, the other man ran from the apartment.

Fenney proceeded to beat L.H., repeatedly hitting and kicking her. Although L.H.’s

alcohol consumption limited her recall, she remembered the angry look on Fenney’s face


                                              2
as he choked her and her pleas to stop as she lay on the bathroom floor with her nose

bleeding profusely into the toilet. She also remembered being on the floor between the

bathroom and living room with her hands behind her back and feeling a pain in her

“bottom.” She passed out, and when she woke up, her “bottom” hurt. She did not know

whether or not Fenney had anally penetrated her with an object.

       When the police arrived, they found a toilet brush with a bloody handle in the

bathroom. The blood covered five and one-half inches of the handle. Officers also

discovered fecal matter on the bathroom floor just inside the threshold of the door. A

paramedic observed that L.H.’s nose was deformed and that she had a swollen and

bloodied face. She also had blood running down her leg. L.H. indicated to the paramedic

that the back of her groin area hurt. The paramedic asked L.H. if Fenney had assaulted

her with the toilet-brush handle, and L.H. indicated “yes” by nodding.           Later, the

Minnesota Bureau of Criminal Apprehension (BCA) conducted DNA testing of the blood

on the toilet-brush handle and concluded that DNA from the blood matched L.H.’s DNA.

       Paramedics transported L.H. to Regions Hospital, where Dr. Bruce Bennett

performed emergency surgery after determining that L.H. had suffered a rectal

penetration, which lacerated and perforated her rectal wall. Due to the location and type

of injury, Dr. Bennett believed that L.H. was at high risk for a severe and life-threatening

infection. During surgery, Dr. Bennett discovered a one-inch external injury to the left

soft tissue surrounding L.H.’s anus, a four-inch internal tear, and a one-inch internal

perforation, which breached the rectal wall. Dr. Bennett opined that these injuries were




                                             3
consistent with penetration by a toilet-brush handle and a five and one-half inch insertion.

And he noted that anal penetration can cause the anal muscles to release fecal matter.

       L.H.’s mother visited her in the hospital. L.H. told her mother that Fenney had

“violated” her and caused her injuries.          Saint Paul Police Officer Lila Sturgeon

interviewed L.H. in the hospital. When Officer Sturgeon asked L.H. if she believed she

was sexually assaulted with the toilet brush, L.H. responded: “I know I was, it was the

first thing I noticed, my bottom hurt so much.”

       Saint Paul Police Sergeant Eric Skog interviewed Fenney in the Ramsey County

jail. During the interview, Sergeant Skog told Fenney that he was charged with criminal

sexual conduct. Sergeant Skog told Fenney that L.H. had injuries to her “private areas”

and asked how those injuries could have happened. Sergeant Skog did not mention

L.H.’s anal injury or make any reference to L.H.’s buttocks or anus. Fenney denied

raping L.H. and said that he did not do anything to her “bottom.”

       The district court rejected Fenney’s theory that L.H.’s rectal injury occurred

unintentionally, concluding that there was “no credible evidence that [L.H.] was injured

as a result of an accidental fall or accidental anal penetration.” The district court found

Fenney guilty as charged. The district court also found that the state proved three

aggravating factors. The district court sentenced Fenney to serve 270 months in prison

for the first-degree criminal-sexual-conduct offense, an upward-durational departure

based on L.H.’s particular vulnerability and the particularly cruel manner in which

Fenney committed the offense.




                                             4
       After sentencing, L.H. provided a statement to the police that differed from her

trial testimony. At trial, L.H. testified that she felt pain in her rectum and that the pain

occurred simultaneously with a kick when she was “part way in the living room [and]

part way in the bathroom” and her “hands were behind [her] back.” But she claimed that

she did not know whether Fenney had penetrated her anally. In her post-sentencing

statement, L.H. stated that Fenney threw her against the bathroom wall just before she

felt pain shoot up her back. L.H. said:

              I don’t know if he picked me up and threw me, or if he just
              really flung me with such force, but my feet left the ground. I
              remember my feet left the ground. Hit the wall. I was pretty
              much—I was clinched to the thing trying to hold myself up.
              But when I hit, that’s when I hit felt something shot up my
              back.

L.H. stated that next, Fenney kicked her in the stomach and the face, and she passed out.

In sum, L.H. recanted the portion of her trial testimony that suggested Fenney

intentionally penetrated her anus. She did not recant her testimony that Fenney beat her.

       Fenney appealed, and this court stayed the appeal and remanded for

postconviction proceedings. Fenney filed a petition for postconviction relief, requesting

a new trial based on L.H.’s recantation. The postconviction court held an evidentiary

hearing.    At the hearing, L.H. asserted her Fifth Amendment right against self-

incrimination and refused to testify. Fenney submitted L.H.’s post-sentencing statement

to the police in lieu of in-court testimony. The postconviction court denied Fenney’s

petition for relief on the merits, and this court reinstated his appeal.




                                               5
                                     DECISION

                                             I.

       Fenney argues that his conviction of first-degree criminal sexual conduct must be

reversed because the state failed to prove the element of intentional penetration. Fenney

was convicted under Minn. Stat. § 609.342, subd. 1(e)(i) (2012), which provides that a

person is guilty of first-degree criminal sexual conduct if he “engages in sexual

penetration with another person,” “causes personal injury to the complainant,” and “uses

force or coercion to accomplish sexual penetration.” Sexual penetration includes “any

intrusion however slight into the . . . anal opening[] . . . of the complainant’s body by any

part of the actor’s body or any object used by the actor for this purpose.” Minn. Stat.

§ 609.341, subd. 12(2)(i) (2012).       “[C]riminal sexual conduct in the first degree

require[es] the general intent to sexually penetrate the victim.” State v. Bookwalter, 541

N.W.2d 290, 296 (Minn. 1995).

       When assessing whether trial evidence was sufficient to sustain a conviction,

appellate courts review a conviction following a bench trial in the same manner as a

conviction following a jury trial. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).

When reviewing a jury verdict based on direct evidence, an appellate court considers

whether the legitimate inferences drawn from the evidence on the record would permit a

jury to conclude that the defendant was guilty beyond a reasonable doubt. State v. Pratt,

813 N.W.2d 868, 874 (Minn. 2012). Review is limited to a close analysis of the record to

determine whether the evidence, when viewed in the light most favorable to the

conviction, is sufficient to allow the jury to reach the verdict that it did. State v. Webb,


                                             6
440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume “the jury believed

the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438

N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the

jury, acting with due regard for the presumption of innocence and the requirement of

proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of

the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

       An appellate court applies heightened scrutiny when reviewing a verdict based on

circumstantial evidence. Pratt, 813 N.W.2d at 874. The circumstances proved must be

consistent with guilt and inconsistent with any other rational hypothesis. Id. Minnesota

courts employ a two-step process when reviewing convictions based on circumstantial

evidence. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). First, the reviewing

court identifies the circumstances proved. Id. In doing so, the court views the evidence

in the light most favorable to the verdict. See Pratt, 813 N.W.2d at 874 (stating that the

supreme court had considered the evidence “in the light most favorable to the verdict”

when determining the circumstances proved).         The court defers to the fact-finder’s

acceptance and rejection of proof and to its credibility determinations. Andersen, 784

N.W.2d at 329; see also State v. Hughes, 749 N.W.2d 307, 312 (Minn. 2008) (stating that

juries are “in the best position to weigh the credibility of the evidence and thus determine

which witnesses to believe and how much weight to give their testimony”).

       Next, the reviewing court examines the reasonableness of the inferences that can

be drawn from the circumstances proved, including inferences of innocence as well as

guilt. Andersen, 784 N.W.2d at 329. All of the circumstances proved must be consistent


                                             7
with guilt and inconsistent with any other rational hypothesis negating guilt. Id. at 330.

The reviewing court does not defer to the fact-finder’s choice between rational

hypotheses. Id. at 329-30. But appellate courts “view the circumstantial evidence as a

whole, not as isolated facts.” State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012). And the

“[s]tate does not have the burden of removing all doubt, but of removing all reasonable

doubt.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). A rational hypothesis

negating guilt must be based on more than mere conjecture or speculation. Andersen,

784 N.W.2d at 330.

       The circumstantial-evidence standard of review is used “when the state’s case is

based largely, or entirely, on circumstantial evidence.” State v. Sam, 859 N.W.2d 825,

831 (Minn. App. 2015).        The parties disagree regarding whether the direct- or

circumstantial-evidence standard of review should be applied in this case. Fenney argues

for application of the heightened circumstantial-evidence standard. We need not resolve

the dispute regarding the more appropriate standard of review because the evidence is

sufficient under the heightened circumstantial-evidence standard. See State v. Silvernail,

831 N.W.2d 594, 598 (Minn. 2013) (declining to resolve a similar dispute regarding the

appropriate standard of review, concluding that even under the “more favorable”

circumstantial-evidence standard, the evidence was sufficient to sustain the conviction).

       The district court’s findings establish that the following circumstances were

proved. Fenney was angry and severely beat L.H. The police found a toilet brush with

five and one-half inches of L.H.’s blood and DNA on the handle at the crime scene. The

police also found fecal matter just inside the threshold of the bathroom doorway, where


                                            8
L.H. testified that she was located when she felt pain in her “bottom” during Fenney’s

assault. Dr. Bennett established that L.H.’s injuries were consistent with penetration by a

toilet-brush handle and a five and one-half inch insertion and that anal penetration can

cause the anal muscles to release fecal matter. During Fenney’s statement to the police,

he denied doing anything to L.H.’s “bottom,” even though the police had not told him

that L.H. sustained a rectal injury. Viewed as a whole, these circumstances support a

rational hypothesis that Fenney intentionally penetrated L.H.’s anus with the toilet-brush

handle.

       Fenney contends that the circumstances are also “consistent with an accidental

injury resulting from falling during the physical altercation onto [a] metal toilet paper roll

handle that is protruding from the bathroom wall.” As support, Fenney asserts that the

circumstances proved also include testimony from Dr. Bennett that the injury “could have

been caused by a person being pushed or falling laterally with enough force onto a fixed,

sharp object,” the “absence of any fecal matter on the brush,” and “the presence of [the]

sharp metal toilet paper roll holder on the wall beside the toilet.” Fenney argues that

“Dr. Bennett did not testify that the metal toilet paper roll holder could not be the source

of the injury,” Dr. Bennett “was not shown the exhibits portraying the actual toilet brush

found in the bathroom nor asked for his specific opinion whether that item recovered

could have caused the injury,” and “[L.H.] did not testify that appellant engaged in sexual

penetration.” But Fenney identifies very little record evidence to support his hypothesis

that L.H. sustained her rectal injury accidentally. Although a picture of the crime scene

shows a toilet-paper-roll holder protruding from the bathroom wall, Fenney does not


                                              9
argue that there is physical evidence such as blood, fecal matter, or DNA connecting the

holder to L.H.’s injury.

       Once again, a rational hypothesis negating guilt must be based on more than mere

conjecture or speculation.      Andersen, 784 N.W.2d at 330.            And “possibilities of

innocence do not require reversal of a jury verdict so long as the evidence taken as a

whole makes such theories seem unreasonable.” State v. Taylor, 650 N.W.2d 190, 206

(Minn. 2002) (quotation omitted). Fenney’s hypothesis of innocence seems unreasonable

in light of the evidence as a whole. Moreover, it is based on conjecture and speculation.

It therefore is not a rational theory that negates Fenney’s guilt.

       In conclusion, because the district court, acting with due regard for the

presumption of innocence and the requirement of proof beyond a reasonable doubt, could

reasonably conclude that Fenney intentionally penetrated L.H.’s anus with the toilet-

brush handle during the assault, we do not disturb its finding of guilt.

                                              II.

       Fenney argues that he is entitled to a new trial based on “newly-discovered

evidence that [L.H.] gave false testimony at trial.” Courts “apply a three-prong test

known as the Larrison test to determine whether a petition for postconviction relief

warrants a new trial based on recantation of trial testimony.” State v. Turnage, 729

N.W.2d 593, 597 (Minn. 2007); see Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.

1928) (setting forth test), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th

Cir. 2004) (modifying test). Under that test, a petitioner is entitled to a new trial if




                                              10
                     (1) the court is reasonably well-satisfied that the
              testimony given by a material witness was false; (2) without
              the testimony, 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.

Turnage, 729 N.W.2d at 597 (quotation and alterations omitted). “The first two prongs

are compulsory, but the third prong is not required in order to grant a new trial.” Id. A

decision to deny a new trial based on recanted testimony is reviewed for an abuse of

discretion. Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005).

       In this case, the postconviction court assumed that Fenney satisfied the first prong

but concluded that he did not satisfy the second. We focus our analysis on the second

prong because it is dispositive. See Turnage, 729 N.W.2d at 598 (stating that “because

our analysis of the second Larrison prong is dispositive of this appeal, we do not decide

whether the postconviction court abused its discretion under the first Larrison prong”).

       “Under the second Larrison prong, the court is to ask whether the petitioner has

demonstrated that without the recanting witness’s testimony, the jury might have reached

a different conclusion.”    Id. (quotation and alteration omitted).       Appellate courts

“examine whether the jury would not likely have found the defendant guilty [without the

testimony] and consider whether the other evidence against the defendant was

overwhelming.” Martin v. State, 825 N.W.2d 734, 743 (Minn. 2013) (quotation omitted).

“[T]he second Larrison prong does not ask whether the evidence was sufficient to

convict the defendant in the absence of the recanted testimony. The question instead is




                                            11
whether the jury might have found the defendant not guilty if the recanting witness had

not testified.” Turnage, 729 N.W.2d at 599.

       In this case, the postconviction court reasoned that in finding Fenney guilty of

criminal sexual conduct, the district court “did not rely heavily on [L.H.’s] trial testimony

to find that [Fenney] committed the sexual assault” and that it “relied instead on the

medical testimony, corroborated by the physical evidence, to find that [L.H.] was not

injured as a result of an accidental fall or accidental anal penetration.” Moreover, the

postconviction court noted that the district court heavily weighed Fenney’s statement to

the police against him, finding that “[t]he fact that Fenney offered the term ‘bottom’

when denying raping [L.H.] is highly corroborative of the fact that he committed the

rectal assault.”

       Fenney argues that without L.H.’s “false testimony” the district court “would not

have had her description of being on the floor with her hands behind her back when she

first felt the pain in her bottom,” but would instead “have had her description of a

bathroom incident wherein she felt the pain in her bottom immediately after she was

slammed up against a wall and countertop—actions that are consistent with the defense

theory at trial that [L.H.’s] injury was caused by an accident.” But the second prong of

the Larrison test does not assess whether the verdict would have been different if the new

statement had been received in evidence instead of the recanted statement. 1 The second


1
 Fenney conflates the newly discovered evidence test under Rainer v. State, 566 N.W.2d
692 (Minn. 1997), with the Larrison test. Generally, newly discovered evidence is
analyzed under the four-part Rainer test. Dukes v. State, 621 N.W.2d 246, 257 (Minn.
2001). The fourth prong of the Rainer test addresses whether the newly discovered

                                             12
prong asks merely “whether the jury might have found the defendant not guilty if the

recanting witness had not testified.” Id.

       Fenney also argues that under the second Larrison prong, assessment of the trial

evidence should not include L.H.’s out-of-court statements, including the paramedic’s

testimony that L.H. nodded yes when asked if she had been sexually assaulted, L.H.’s

mother’s testimony that L.H. said Fenney “violated her,” and Officer Sturgeon’s

testimony that L.H. stated she knew she had been sexually assaulted.2 But the second

prong of the Larrison test does not assess whether the verdict might have been different

without any of the witness’s statements, it asks merely “whether the jury might have

found the defendant not guilty if the recanting witness had not testified.” Id. Because

Fenney does not provide legal argument or authority supporting his contention that a

recanting witness’s out-of-court statements are excluded from consideration under the

Larrison test, we apply the test as it is repeatedly described in caselaw: “Under the

second Larrison prong, the court is to ask whether the petitioner has demonstrated that

evidence “would probably produce an acquittal or a more favorable result.” Ferguson v.
State, 645 N.W.2d 437, 447 (Minn. 2002). But when newly discovered evidence consists
of recanted testimony, the Larrison test is used and not the Rainer test. Id. In fact, the
supreme court continues to use the Larrison test in cases involving witness recantation
and false testimony even though Larrison has been overruled. Ortega v. State, 856
N.W.2d 98, 103 n.6 (Minn. 2014). And under that test, an “analysis of newly-discovered
evidence in cases involving witness recantation should not be an analysis of the impact of
the recantation, but should be an analysis of the effect that the absence of the false
testimony would have had on the result in the original trial.” Dukes, 621 N.W.2d at 258.
We note that the postconviction court considered whether L.H.’s posttrial statement
would have changed the verdict. However, the postconviction court also considered how
the absence of L.H.’s testimony would have impacted the verdict, which is the proper
analysis under Larrison. We focus our review on that aspect of the postconviction
court’s reasoning.
2
  Fenney does not argue that L.H.’s out-of-court statements were inadmissible.

                                            13
without the recanting witness’s testimony, the jury might have reached a different

conclusion.” Id. at 598 (quotation and alteration omitted).

       As to that test, Ortega v. State is instructive. 856 N.W.2d 98 (Minn. 2014). In

Ortega, the supreme court held that a postconviction court did not abuse its discretion by

denying a request for a new trial without holding an evidentiary hearing on the

underlying witness-recantation claim. Id. at 105; see Ferguson, 645 N.W.2d at 446

(stating that a petitioner requesting a new trial under the Larrison test is “entitled to an

evidentiary hearing on a significantly lesser showing than what is required for [an

appellate court] to grant him a new trial”). The supreme court reasoned that the second

Larrison prong was not satisfied because “[r]emoving [the recanting witness’s] trial

testimony about the fight changes very little about the overall evidence bearing on the

fight and manner of [the victim’s] death.” Ortega, 856 N.W.2d at 105. The supreme

court noted that “[the recanting witness] never claimed during his trial testimony to have

seen Ortega holding a knife or making stabbing motions, . . . 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.” Id.

       The circumstances here are similar to those in Ortega. L.H. did not testify that

Fenney sodomized her with the toilet-brush handle. But other witnesses testified that

L.H. made out-of-court statements indicating that he had done so. Moreover, DNA

evidence indicated that L.H.’s blood was on the toilet-brush handle, and medical

evidence indicated that L.H.’s injuries and the presence of fecal matter on the floor were

consistent with forced penetration with a toilet-brush handle. Lastly, Fenney’s reference


                                            14
to L.H.’s “bottom” during his statement to the police was inculpatory because the police

had not mentioned L.H.’s rectal injury.

       Like the circumstances in Ortega, removing L.H.’s trial testimony regarding her

rectal injury changes very little about the overall evidence regarding how she sustained

the injury. Fenney has not shown that without L.H.’s testimony, the jury might have

reached a different conclusion. The postconviction court therefore did not abuse its

discretion by concluding that Fenney failed to satisfy the second prong of the Larrison

test and that he is not entitled to a new trial.

                                               III.

       In his pro se supplemental brief, Fenney argues that his trial counsel was

ineffective. Fenney asserts that he and his attorney “immediately had conflicts,” there

was “poor communication,” and his attorney was not “properly prepared for trial.” He

alleges several trial errors that purportedly stem from the conflict, poor communication,

and lack of preparation. This court cannot evaluate Fenney’s ineffective-assistance-of-

counsel claim because the record does not contain adequate evidence regarding the

alleged conflict and communication deficiencies or his attorney’s level of trial

preparation.    Because the record is inadequate to evaluate Fenney’s ineffective-

assistance-of-counsel claim, we decline to review it. See State v. Green, 719 N.W.2d

664, 674 (Minn. 2006) (“Because these [ineffective-assistance-of-counsel] allegations




                                                   15
cannot be reviewed on the basis of the trial record, we decline to address them here.

They are more properly raised in a petition for postconviction relief.”).

       Affirmed.




                                             16
