                        This opinion will be unpublished and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
                                   A14-0695

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Richard Handsome Carter,
                                     Appellant.

                                Filed March 9, 2015
                                      Affirmed
                                 Toussaint, Judge*

                            Ramsey County District Court
                              File No. 62-CR-13-6406

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, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Toussaint, Judge.




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                        UNPUBLISHED OPINION

TOUSSAINT, Judge

       Appellant challenges his conviction of felony domestic assault, arguing that the

district court committed reversible error by admitting unobjected-to hearsay evidence of

the complainant’s prior inconsistent statement to police.       He also argues that the

prosecutor committed misconduct by referring to that statement at trial and that the

district court erred by requiring him to register as a predatory offender because he was

acquitted of false imprisonment, the charged enumerated predatory offense. We affirm.

                                     DECISION

                                            I.

       After police responded to a 911 call of a domestic disturbance involving appellant

Richard Handsome Carter and his girlfriend, J.A.A., the state charged appellant with

felony domestic assault and false imprisonment.      Before appellant’s jury trial, J.A.A.

notified the prosecutor that she had spoken to an attorney and intended to “plead the

Fifth” when called to testify. After the prosecutor told the district court that J.A.A. was

not anticipated to be a friendly witness to the state, the district court granted her use

immunity for her testimony.

       At trial, a responding St. Paul police officer testified that, at the scene, she

interviewed J.A.A., who appeared hysterical and crying, and that J.A.A. told her, “I’m

scared [appellant is] going to kill me.”     According to the officer, J.A.A. stated that

appellant was arguing with her and trying to grab her in the apartment hallway, but

people appeared in the hallway, so he pulled her back into the apartment and threatened


                                            2
her with a weightlifting plate held above his head. But when J.A.A. testified, she denied

that appellant had placed his hands on her in an offensive manner and did not recall

telling police that he had threatened her.

       Appellant argues that the district court committed plain error by admitting J.A.A.’s

prior inconsistent hearsay statement to police through the officer’s testimony as

substantive evidence. Generally, failure to object to the admission of evidence at trial

constitutes a waiver of the right to appeal on that basis. State v. Tscheu, 758 N.W.2d 849,

863 (Minn. 2008).      “[H]earsay admitted into evidence without, or over, objection,

becomes substantive evidence in a trial.” State v. Jackson, 655 N.W.2d 828, 833 (Minn.

App. 2003) (explaining that when otherwise-inadmissible evidence is admitted without

objection, it must be given probative force because the plaintiff is limited on appeal to

objections raised at trial), review denied (Minn. Apr. 15, 2003).      We may, however,

review unobjected-to error in admitting out-of-court hearsay statements by applying the

plain-error standard, which requires a showing that an error occurred, that the error was

plain, and that it affected the defendant’s substantial rights.    State v. Manthey, 711

N.W.2d 498, 504 (Minn. 2006).

       A prior inconsistent statement is not hearsay if it was made under oath at a

proceeding where the declarant testified and was subject to cross-examination. State v.

Thames, 599 N.W.2d 122, 125 (Minn. 1999); Minn. R. Evid. 801(d)(1)(A). Even if the

statement was not given under oath, it may be still admitted as impeachment evidence.

Id.; see Minn. R. Evid. 607 (stating that “[t]he credibility of a witness may be attacked by

any party, including the party calling the witness”). But the state “may not misuse Rule


                                             3
607 to expose the jury to hearsay under the guise of impeachment when the sole purpose

in calling the witness is to introduce the witness’ prior statement.” Thames, 599 N.W.2d

at 125; State v. Dexter, 269 N.W.2d 721, 721 (Minn. 1978). Nonetheless, if the statement

is otherwise admissible as nonhearsay or an exception to the hearsay rule, it does not

create a “Dexter problem.” Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993).

         Appellant maintains that, because the state and the district court knew that J.A.A.

would not testify favorably to the state, her prior hearsay statement was improperly

admitted, not just for impeachment purposes, but as substantive evidence of appellant’s

guilt.    We agree with appellant that J.A.A.’s statement to police does not qualify as

nonhearsay under Minn. R. Evid. 801(d)(1)(A) because it was not given under oath

subject to penalty of perjury, and it was not given at a trial, hearing, deposition, or other

proceeding. See Minn. R. Evid. 801(d)(1)(A) (stating requirements for admissibility of

nonhearsay under that rule). But we conclude that the prior inconsistent statement was

nonetheless admissible under the excited-utterance exception to the hearsay rule, Minn.

R. Evid. 803(2). That rule provides that a statement is not excluded as hearsay if it

“relat[es] to a startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition.” Minn. R. Evid. 803(2). See, e.g., State

v. Edwards, 485 N.W.2d 911, 912-14 (Minn. 1992) (holding that a child’s statements

made to a police officer about five minutes after alleged sexual assault were admissible as

excited utterances). “The rationale [for the excited utterance exception] stems from the

belief that the excitement caused by the event eliminates the possibility of conscious

fabrication, and insures the trustworthiness of the statement.” State v. Daniels, 380


                                              4
N.W.2d 777, 782 (Minn. 1986). Although “no strict temporal guidelines” exist for

admitting an excited utterance, its admission is generally allowed on a determination that

the declarant was under the “aura of excitement” resulting from the condition or event.

State v. Martin, 614 N.W.2d 214, 223-24 (Minn. 2000) (quotations omitted); see, e.g.,

State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (holding that a statement fell within

the excited-utterance exception when a witness testified that the declarant was “very

upset,” “extremely agitated,” and “very afraid”).

       Here, the officer spoke to J.A.A. within a few minutes after police responded to

the 911 call. The officer testified that J.A.A. was hysterical and crying through their

entire fifteen-minute conversation, stating that she was afraid that appellant would kill

her. Thus, J.A.A.’s statement to police related to a startling event, appellant’s threats,

and it was made while she was under the stress of excitement caused by that event. See

Minn. R. Evid. 803(2). Therefore, her prior inconsistent statement met the criteria for an

excited-utterance exception to the hearsay rule under Minn. R. Evid. 803(2), and its

admission as substantive evidence did not constitute plain error. See State v. Reed, 737

N.W.2d 572, 583 (Minn. 2007) (stating that an error is plain if it “contravenes case law, a

rule, or a standard of conduct”). Because we have concluded that no plain error occurred,

we need not address appellant’s alternative argument that the statement did not qualify

for admission under the residual exception to the hearsay rule, Minn. R. Evid. 807, or the

state’s argument that the statement was also admissible as a description of J.A.A.’s then-

existing state of mind under Minn. R. Evid. 803(3).




                                            5
       We further note that, in any event, appellant has failed to establish the third

element of the plain-error test: that any error in admitting the statement affected his

substantial rights. See State v. Young, 710 N.W.2d 272, 280 (Minn. 2006) (stating that an

error affects substantial rights if there is a reasonable likelihood that it had a significant

effect on the jury’s verdict). Appellant was convicted after two witnesses testified that

they saw him hit J.A.A. in the apartment hallway and drag her back into the apartment.

And the jury had the opportunity to hear appellant’s version of events when he testified in

his own defense, denying that he assaulted J.A.A. Under these circumstances, we cannot

conclude that a reasonable likelihood exists that the admission of J.A.A.’s statement to

police had a significant effect on the jury’s verdict. See id.

       Appellant also argues that the prosecutor committed misconduct by misusing the

statement as substantive evidence in questioning the officer and at closing argument. We

consider a claim of unobjected-to prosecutorial misconduct under a modified plain-error

standard. State v. Radke, 821 N.W.2d 316, 329 (Minn. 2012). Under that standard,

appellant must first demonstrate that an error occurred and that the error was plain. Id.

The burden then shifts to the state to show that the error did not prejudice appellant’s

substantial rights. Id. If the state fails to meet that burden, this court considers whether

the error seriously affected the integrity and fairness of the judicial proceedings. Id.

Because we have concluded that appellant cannot establish that admission of the

statement constituted plain error, we reject appellant’s claim that the prosecutor’s use of

the statement amounted to misconduct. See id.




                                              6
         Finally, appellant argues that he is not “a person required to register” as a

predatory offender because he was acquitted of false imprisonment, the only enumerated

predatory offense with which he was charged. By statute, a person “shall register” as a

predatory offender if that person “was charged with . . . a violation of or attempt to

violate, or aiding, abetting, or conspiracy to commit” one of certain enumerated offenses,

“and convicted of or adjudicated delinquent for that offense or another offense arising out

of the same set of circumstances.” Minn. Stat. § 243.166, subd. 1b(a)(1) (2012). False

imprisonment is listed as an enumerated offense.         See id., subd. 1(b)(2). Appellant

maintains that because he was not found guilty of the enumerated false-imprisonment

offense, he was not a “true” predatory offender and should not be required to register.

This court reviews interpretation of statutes de novo. Boutin v. LaFleur, 591 N.W.2d

711, 714 (Minn. 1999).

         The Minnesota Supreme Court has held that while an offender need not be

convicted in order to trigger the registration requirements, the charged predatory offense

must be supported by probable cause. State v. Lopez, 778 N.W.2d 700, 703 (Minn.

2010).     In State v. Haukos, we reviewed the use of acquitted charges in requiring an

offender to register and clarified that “it is the judiciary’s determination of probable

cause, not the prosecutor’s bringing of a charge, that triggers the statutory basis for sex-

offender registration.” 847 N.W.2d 270, 272-73 (Minn. App. 2014). We reiterated that

“a qualifying charge may trigger the registration requirement . . . only if it is supported by

probable cause.” Id. at 274.




                                              7
       Appellant has not challenged the district court’s finding of probable cause for the

false-imprisonment charge. But he argues that it is “illogical” to rely on a finding of

probable cause to support an enumerated offense as a basis for registration when a person

is later acquitted of that offense. The argument, however, is inconsistent with Lopez and

Haukos.    “The doctrine of stare decisis directs that we adhere to former decisions in

order that there might be stability in the law.” State v. DeShay, 645 N.W.2d 185, 189

(Minn. App. 2002) (quotation omitted), aff’d, 669 N.W.2d 878 (Minn. 2003). “Although

stare decisis is not an inflexible rule of law, departure from precedent is rare,” unless

societal conditions or other reasons for a common-law rule cease to exist.               GME

Consultants, Inc. v. Oak Grove Dev., Inc., 515 N.W.2d 74, 76 (Minn. App. 1994). We

decline to revisit this issue, and we conclude that the district court did not err by requiring

appellant to register as a predatory offender.

       Affirmed.




                                                 8
