                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1176


                                 State of Minnesota,
                                     Respondent,

                                          vs.

                              Robert Edward Collins, Jr.,
                                      Appellant.


                                 Filed July 21, 2014
                                      Affirmed
                                 Halbrooks, Judge


                            Olmsted County District Court
                              File No. 55-CR-12-5669

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

Mark A. Ostrem, Olmsted County Attorney, Eric M. Woodford, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Halbrooks, Presiding Judge; Smith, Judge; and

Klaphake, Judge.



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                         UNPUBLISHED OPINION

HALBROOKS, Judge

       On appeal from his conviction of being an ineligible person in possession of a

firearm, appellant argues that the district court erred by accepting his stipulation to an

element of the offense without securing a valid waiver of his rights under Minn. R. Crim.

P. 26.01, subd. 3(a). Appellant also argues that the district court abused its discretion

when it admitted hearsay statements under Minn. R. Evid. 807. Because we conclude

that any error in accepting appellant’s stipulation was harmless and that the district court

properly exercised its discretion in admitting the disputed hearsay statements, we affirm.

                                         FACTS

       On June 3, 2012, police responded to a call that there had been a drive-by shooting

near an apartment building in Rochester. Witnesses alleged that a man sitting in the front

passenger seat of a green Kia had fired a handgun at a group of pedestrians. Witnesses

described the man as an African-American male with shoulder-length, dreadlocked hair.

D.P., a 13-year-old boy who witnessed the shooting, told police that a man named

“Chewy” was driving the green Kia. D.P. told police that “Chewy’s” real name is James

Dortch and that “Chewy” was in the vehicle with a “[k]id named Shorty D,” who had

dreadlocked hair. D.P. did not know “Shorty D’s” real name. Police recorded their

interview with D.P. and repeatedly noted D.P.’s nervous demeanor and that he was

uncooperative when speaking with them.

       Weeks later, police located Dortch, and he was brought to the police station for

questioning. During his 24-minute interview with police, Dortch admitted that he was


                                             2
the individual driving the green Kia on the day of the drive-by shooting. He told police

that “Shorty D” was the passenger in the vehicle and that “Shorty D’s” real name is

Robert Edward Collins, Jr., the appellant in this matter. Thereafter, police located and

arrested appellant, charging him with the crime of being an ineligible person in

possession of a firearm. Against the advice of counsel, appellant waived his right to a

jury trial.

        Before his bench trial began, appellant stipulated that he had a prior felony-level

conviction making him ineligible to possess a firearm. Specifically, he admitted that he

had been convicted of a third-degree controlled-substance crime and that he had received

a felony-level sentence for that conviction. Appellant conferred with counsel on the

matter and was advised of the state’s burden of proving this element beyond a reasonable

doubt. The district court also advised appellant as to the disadvantages of stipulating to

this element. Nevertheless, appellant stated that he still wished to stipulate, and the

district court accepted the stipulation. The parties proceeded to trial, disputing whether

appellant was the man who possessed a firearm in the passenger seat of the green Kia.

        At trial, the three witnesses whom police talked to immediately after the shooting

testified. They testified consistently with their earlier statements to police—that the

passenger in the vehicle was an African-American male who had shoulder-length,

dreadlocked hair. But D.P. recanted his earlier statements to police. D.P. testified that

there were two people in the green Kia, but claimed that he did not remember who was in

the passenger seat. D.P. testified that he did not know appellant, had never seen him

before, and had never heard of the nickname “Shorty D.” D.P. stated that he could no


                                             3
longer remember the events of that day and that his memory was “just gone.” By the

conclusion of his direct examination, D.P. recanted his earlier trial testimony, stating that

he did not remember if there were two people in the vehicle. At a bench conference,

defense counsel advised the district court that D.P. was afraid. D.P. himself said that he

was “just doing what [his] parents told [him] to do.”

       Dortch also testified at trial. Dortch appeared in court only after he had been

arrested for failing to comply with a subpoena.          Dortch also recanted his earlier

statements to police. Dortch admitted that he was the individual driving the green Kia.

He also agreed that appellant’s nickname is “Shorty D.” But he claimed that appellant

was not the passenger in the vehicle; rather, it was his friend Mikey. Dortch did not

know Mikey’s last name, despite claiming to have known him for about a year. He did

not know where he had met Mikey or where Mikey lived, but he knew that Mikey had

“light skin.” When asked why he had told police that the passenger was “Shorty D,”

Dortch said it was because he felt “pressured” by police during his interview.

       Because of Dortch and D.P.’s recantations, the prosecutor sought to admit into

evidence both witnesses’ earlier statements to police under Minn. R. Evid. 807, the

“catchall” exception to the hearsay rule. The district court allowed both witnesses’ prior

statements into evidence, finding that both D.P. and Dortch’s earlier statements were

trustworthy and met the requirements of rule 807. The district court determined that

D.P.’s testimony “was limited by his unwillingness to ‘snitch’” and that D.P. “displayed

an increasing lack of cooperation with the prosecutor’s direct examination.” The district

court determined that D.P.’s statements to police were trustworthy because they “were


                                             4
made and recorded very shortly after the incident, before there was any extended

opportunity to fabricate, for memory to dim, or for [D.P.] to ruminate at length on the

stigma or possibly dangerous consequences of ‘snitching.’” The district court also found

that there was “nothing in the manner or content of the [police] interrogation that

cause[d] [it] to question the reliability of Dortch’s identification of ‘Shorty D.’”

       The district court found appellant guilty of being an ineligible person in possession

of a firearm. Appellant was sentenced to 60 months in prison. This appeal follows.

                                      DECISION

                                              I.

       To be convicted of being an ineligible person in possession of a firearm, the state

must prove that the defendant: (1) was previously convicted of a “crime of violence” and

(2) possessed a firearm. Minn. Stat. § 624.713, subd. 1(2) (2012). Appellant stipulated

to the first element at trial. He now argues that the district court erred by accepting his

stipulation because he did not waive his rights as described in Minn. R. Crim. P. 26.01,

subd. 3(a).

       A defendant’s right to a trial includes the right to be tried on each element of the

charged offense. State v. Bluhm, 457 N.W.2d 256, 260 (Minn. App. 1990), aff’d in part,

rev’d in part on other grounds, 460 N.W.2d 22 (Minn. 1990). “A defendant may agree to

waive a jury determination of a particular element of the offense by stipulating to it.”

State v. Hinton, 702 N.W.2d 278, 281 (Minn. App. 2005), review denied (Minn. Oct. 26,

2005). To stipulate to an element of an offense, a defendant must, either orally or in

writing, “acknowledge and personally waive the rights to: (1) testify at trial; (2) have the


                                              5
prosecution witnesses testify in open court in the defendant’s presence; (3) question those

prosecution witnesses; and (4) require any favorable witnesses to testify for the defense

in court.” Minn. R. Crim. P. 26.01, subd. 3(a); State v. Wright, 679 N.W.2d 186, 191

(Minn. App. 2004), review denied (Minn. June 29, 2004). We have held that rule 26.01,

subdivision 3(a), must be strictly complied with for each issue waived. State v. Antrim,

764 N.W.2d 67, 70 (Minn. App. 2009); see also Minn. R. Crim. P. 26.01, subd. 3(c).

Failure to obtain a valid waiver may result in the reversal of a defendant’s conviction.

Antrim, 764 N.W.2d at 71.

       Here, appellant’s stipulation was made orally on the record. A fair reading of the

transcript leads us to conclude that appellant actively participated in the stipulation

discussion. The transcript even reflects that the district court tried to persuade appellant

not to stipulate to the prior-conviction element, informing him that because he wished to

have a bench trial, his stipulation would not serve the same strategic purpose as it would

if he were in front of a jury. But it is also true that while appellant personally verified his

past conviction and his understanding of its consequences, he did not explicitly agree to

waive his rights as described in Minn. R. Crim. P. 26.01, subd. 3. We therefore must

conclude that the district court erred by accepting appellant’s stipulation to the prior-

conviction element of his offense. See State v. Craig, 807 N.W.2d 453, 466-67 (Minn.

App. 2011) (determining that the district court failed to obtain an adequate waiver where

defendant agreed to stipulate to his prior-offense element but did not explicitly waive his

rights as listed in rule 26.01, subd. 3(a)), aff’d, 826 N.W.2d 789 (Minn. 2013). But that

does not end our inquiry.


                                              6
       The next issue presented is whether the district court’s error, which was

unobjected to at trial, was plain error. See State v. Kuhlmann, 806 N.W.2d 844, 852

(Minn. 2011) (determining that failure to obtain a proper waiver of an element of an

offense is “trial error,” and when it is unobjected to at trial, it should be reviewed for

plain error). Under plain-error analysis, we must determine whether there was error, that

was plain, and that affected the defendant’s substantial rights. State v. Griller, 583

N.W.2d 736, 740 (Minn. 1998). If each of these prongs is met, we will address the error

only if it seriously affects the fairness and integrity of the judicial proceedings. Id. An

error is plain if it is clear or obvious. State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008).

An error affects substantial rights if the error was prejudicial and affected the outcome of

the case. Griller, 583 N.W.2d at 741.

       We conclude that the plain-error standard is not met here because appellant has

not shown that his substantial rights were affected. The existence of appellant’s prior

conviction was not contested at trial, nor does appellant contest the existence of his prior

conviction on appeal. See Hinton, 702 N.W.2d at 282 (holding that the district court’s

failure to obtain a proper stipulation did not affect the defendant’s substantial rights when

the defendant did not challenge the existence of his prior convictions and the record

reflected that they had occurred). At trial, appellant opted not to call any witnesses, but

he cross-examined the state’s witnesses, challenged the state’s evidence, and argued

against the remaining element of his offense. See State v. Kuhlmann, 780 N.W.2d 401,

405-06 (Minn. App. 2010) (recognizing the “deeply significant differences” between the

rights given up by foregoing a jury trial and the rights given up when stipulating only to


                                             7
an element of the offense), aff’d, 806 N.W.2d 844 (Minn. 2011). Moreover, if necessary,

the state could have easily proven that appellant had committed a crime of violence by

introducing certified copies of his conviction into evidence. See Craig, 807 N.W.2d at

468 (holding that appellant’s invalid stipulation to his prior felony conviction that made

him ineligible to possess a firearm was harmless because it was “an objective fact and

would have easily been proved by public records”).

       We conclude that the failure to obtain appellant’s waiver of his rights as described

in Minn. R. Crim. P. 26.01, subd. 3(a), did not affect the outcome of the case, nor was

this error unfairly prejudicial.     Therefore, appellant’s substantial rights were not

adversely affected. Because we have concluded that the error did not affect appellant’s

substantial rights, we need not consider whether the error was plain, or whether the error

seriously affects the fairness and integrity of the judicial proceedings. See State v. Goelz,

743 N.W.2d 249, 258 (Minn. 2007) (stating that “[i]f a defendant fails to establish that

the claimed error affected his substantial rights, we need not consider the other [plain-

error] factors.”).

                                             II.

       We next must determine whether the district court erred by admitting hearsay

statements under Minn. R. Evid. 807. Appellant argues that both D.P.’s and Dortch’s

prior statements to police are not trustworthy and do not meet the requirements of rule

807. “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the

burden of establishing that the [district] court abused its discretion and that appellant was


                                             8
thereby prejudiced.”    State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation

omitted).

       We first note our agreement that the disputed statements are hearsay. See Minn.

R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”). Such statements are generally inadmissible absent an exception. Minn. R.

Evid. 802. Under Minn. R. Evid. 807, the residual exception to the hearsay rule, a

hearsay statement offered as substantive evidence is admissible if (1) the statement is

offered as evidence of a material fact, (2) the proponent of the statement gives the

adverse party sufficient notice that it intends to offer the statement, (3) the statement is

more probative on the point for which it is offered than any other evidence that the

proponent can procure through reasonable efforts, (4) admission of the statement best

serves the general purposes of the rules of evidence and the interests of justice, and

(5) the statement has “circumstantial guarantees of trustworthiness.” See also Oliver v.

State, 502 N.W.2d 775, 777-78 (Minn. 1993) (stating that in situations where a witness

recants and the state offers the witness’s prior statement for impeachment purposes the

defendant has “a legitimate cause to complain,” because “there is a large risk that the

jury, even if properly instructed, will consider the prior statement as substantive

evidence.” But where “the prior statement is [admitted] as substantive evidence of the

defendant’s guilt, then the . . . defendant has no legitimate cause to complain”).

       In State v. Ortlepp, the supreme court determined that a hearsay statement had

“circumstantial guarantees of trustworthiness” because (1) the admission of the statement


                                             9
did not violate the Confrontation Clause of the Sixth Amendment since the declarant was

available for cross-examination, (2) it was undisputed that the declarant made the

statement and it was recorded, (3) the statement was against the declarant’s penal interest,

and (4) the statement was consistent with all of the other evidence that the state

introduced. 363 N.W.2d 39, 44 (Minn. 1985). But importantly, these factors do not

constitute a strict test for determining admissibility of evidence under rule 807; rather,

appellate courts must examine the totality of the circumstances in determining if the

statements have sufficient guarantees of trustworthiness. State v. Martinez, 725 N.W.2d

733, 737 (Minn. 2007). We examine both D.P. and Dortch’s hearsay statements in turn.

       A.     D.P.’s Hearsay Statements

       Appellant disputes the admission of D.P.’s statements to police that “Chewy” and

“Shorty D” were the occupants of the green Kia, that “Chewy” was James Dortch, and

that “Shorty D” had dreadlocked hair. Appellant does not dispute that D.P.’s statements

were offered as evidence of a material fact—that is, they were offered to prove

appellant’s identity as the man in possession of the firearm. We further conclude that

under these circumstances the state provided sufficient notice to defense counsel that it

intended to introduce D.P.’s hearsay statements into evidence.           D.P. unexpectedly

recanted his earlier statements to police while on the witness stand. Providing notice to

appellant before trial would have been unrealistic.          D.P.’s statements were more

probative than any other evidence the state could procure. The statements reflect the

personal knowledge of D.P. on the date of the offense and were made before he had any

contact with his parents, who told him not to talk to the police or in court.


                                             10
       Moreover, the only witnesses who were able to identify appellant as the individual

in the green Kia were D.P. and Dortch. Other witnesses were only able to testify that the

man in the passenger seat had dreadlocked hair.          Finally, the admission of D.P.’s

statements serves the general purpose of the rules of evidence and the interests of justice

by assisting the district court in ascertaining the truth. See Minn. R. Evid. 102 (stating

that the rules shall be construed “to the end that the truth may be ascertained”). By

allowing these statements into evidence, the district court was better able to evaluate

D.P.’s credibility. Thus, we conclude that the first four requirements of rule 807 are

satisfied.

       We further conclude that rule 807’s fifth requirement, that the statement have

“guarantees of trustworthiness” as contemplated in Ortlepp, is satisfied. The first Ortlepp

factor, confrontation under the Sixth Amendment, is not an issue here; D.P. testified at

trial and was available for cross-examination. The second Ortlepp factor is similarly

satisfied. Under the second factor, the state must show that there is “no dispute as to

whether the declarant actually made the statement.” State v. Robinson, 699 N.W.2d 790,

798 (Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006). The record establishes that

D.P. actually made these statements to police; his statements were recorded and two

officers testified that they interviewed and recorded D.P.        The third Ortlepp factor

similarly weighs in favor of admissibility. Although D.P.’s statements were not against

his penal interests, his statements were made against the interest of his safety and his fear

of being labeled a “snitch.” See State v. Jones, 755 N.W.2d 341, 353 (Minn. App. 2008),

aff’d, 772 N.W.2d 496 (Minn. 2009) (holding that “statements do not have to be directly


                                             11
against [that person’s] own penal interests”). As to the fourth Ortlepp factor, we agree

with appellant that it weighs against admissibility. D.P.’s statements to police were

consistent with a majority of, but not all of the evidence presented at trial. One witness

testified that appellant was not the passenger in the green Kia; rather, the passenger was a

“lighter skinned” man. Because D.P.’s statements were not consistent with all of the

evidence at trial, this factor weighs against admissibility.

       Although one of the Ortlepp factors weighs in appellant’s favor, these factors do

not constitute a strict test for determining admissibility under rule 807. Rather, we must

look to the totality of the circumstances. Martinez, 725 N.W.2d at 737. Here, D.P.’s

identifications were made and recorded very shortly after the incident, before there was

any opportunity to fabricate, for his memory to fade, or for D.P. to contemplate the

possibly dangerous consequences of “snitching.”          Considering the totality of these

circumstances, we conclude that the district court properly exercised its discretion in

admitting D.P.’s hearsay statements.

       B.     Dortch’s Hearsay Statement

       Appellant disputes the admission of Dortch’s hearsay statement to police that

“Shorty D” was with him in the green Kia on the date of the offense. At trial, Dortch

testified that he had been pressured by police to identify his passenger, and that he falsely

identified “Shorty D” rather than his actual passenger, Mikey.

       As with D.P.’s hearsay statements, we conclude that the first four elements of rule

807 have been satisfied. Dortch’s statements were offered as evidence of a material fact;

that is, that appellant was the individual in the passenger seat of the green Kia. And with


                                              12
regard to the notice requirement, Dortch unexpectedly recanted on the witness stand.

Providing notice to the defense before trial was impractical. Dortch’s statements are

more probative than any other evidence the state offered. This is indicated in the trial

transcript where counsel for both sides described Dortch as an “essential” witness.

Finally, admission of Dortch’s hearsay statements serves the general purpose of ensuring

that the truth is ascertained. See Minn. R. Evid. 102.

       The fifth requirement, that the statement have “guarantees of trustworthiness” as

contemplated in Ortlepp, is also satisfied here.         Confrontation under the Sixth

Amendment is not an issue; Dortch was cross-examined at trial. And there is no dispute

that Dortch made this statement to police. Dortch admitted that he told police during his

interview that “Shorty D” was in the passenger seat, and his interview was recorded.

Dortch’s statements were made against his interests, as they were made against the

interest of his friendship with appellant. See State v. Whiteside, 400 N.W.2d 140, 146

(Minn. App. 1987) (concluding that the district court did not abuse its discretion by

admitting a statement of defendant’s girlfriend that incriminated defendant where the

girlfriend was clearly hostile to the prosecution and her statements were made against the

interest of her relationship with the defendant and his penal interests), review denied

(Minn. Mar. 18, 1987). Finally, we agree with appellant that the fourth Ortlepp factor

weighs against admissibility. Dortch’s hearsay statement is consistent with a majority of

the state’s evidence, but not all of it. One witness’s testimony contradicts Dortch’s

statements to the police and corroborates Dortch’s trial testimony that his passenger was

a “light skinned” male.


                                            13
       Considering the totality of these circumstances, we conclude that Dortch’s hearsay

statements had sufficient guarantees of trustworthiness and met the additional

requirements of rule 807. Therefore, the district court properly exercised its discretion in

admitting Dortch’s hearsay statements.

       Affirmed.




                                            14
