                          This opinion will be unpublished and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
                                     A13-2323

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                   Tyrone Joseph Mohr,
                                        Appellant.

                                Filed December 1, 2014
                                Reversed and remanded
                                    Hudson, Judge

                               Dakota County District Court
                               File No. 19HA-CR-13-1500


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

James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

HUDSON, Judge

        Appellant challenges his conviction of ineligible person in possession of a firearm.

He argues that the district court erred by admitting: (1) out-of-court statements that a

witness made to investigating officers; (2) evidence that appellant possessed guns on

several prior occasions; and (3) evidence regarding the nature of the police response to

his residence. He also argues that the cumulative effect of these errors denied him of a

fair trial and that his warrant of commitment should be amended to reflect the fine

imposed at sentencing. Because we conclude that the erroneous admission of hearsay

evidence significantly affected the verdict, we reverse and remand.

                                          FACTS

        On May 11, 2013, law enforcement responded to a call for assistance at a

residence located in Greenville Township, Dakota County. The residence is owned by

R.R., who lives with her significant other, appellant Tyrone Joseph Mohr, and her

roommate, S.M. Appellant is a person ineligible to possess a firearm.

        Law enforcement obtained and executed a search warrant for the residence and

seized two guns from a vent located in the master bedroom. DNA samples were taken

from the grips of each gun and the trigger of one gun. Subsequent testing revealed that

appellant’s DNA profile matched the sample seized from the trigger. The same testing

could not exclude appellant as a source of the DNA samples obtained from either gun’s

grip.




                                             2
       While police executed the search warrant, Dakota County Sheriff’s Detective

Dawanna Witt interviewed R.R. Detective Witt testified that throughout the interview,

R.R. appeared intoxicated, did not appear alert or focused, and struggled to understand

her questions. R.R. told the detective that appellant had thrown S.M. out of the house

earlier that day because he believed that S.M. planned to rob them. She informed the

detective that appellant had a gun before and after he confronted S.M., had

“showboat[ed]” both guns, and had possessed both guns on several other occasions. R.R.

admitted to the detective that she had purchased both firearms recovered from the home

and told the detective that appellant kept the first gun for himself.

       At trial, R.R. testified, however, that she could not remember whether appellant

possessed a gun when he confronted S.M. on May 11, or whether he otherwise possessed

a gun on the date of the incident. R.R. admitted that she consumed alcohol, Percocet, and

Xanax on the offense date, and testified that she “blacked out” later that day. The state

provided R.R. a transcript of the statement that she made to Detective Witt and asked her

to read it to refresh her recollection. R.R. testified that she did not remember speaking to

the detective, but stated that she believed that the transcript was a true and accurate

representation of what she told the detective that day. She also admitted, however, that

she was unsure whether she was truthful and honest when she answered the detective’s

questions. R.R. then repeated what she told the detective; she stated that she informed

the detective that appellant possessed a gun, that appellant had the gun when he

confronted S.M., and that she had observed appellant with a gun on several other

occasions. R.R. admitted that she was prohibited from possessing firearms as a term of


                                              3
probation for a previous felony conviction. She testified after the district court granted

her use immunity.

       At trial, over appellant’s objection, the state introduced R.R.’s out-of-court

statements to Detective Witt through the detective’s testimony. The jury found appellant

guilty of ineligible person in possession of a firearm. This appeal follows.

                                     DECISION

       Appellant argues that the district court abused its discretion by admitting

statements that R.R. made in her interview with Detective Witt because those statements

constituted inadmissible hearsay.     The state argues that the district court properly

admitted the statements under Minn. R. Evid. 801(d)(1)(B).

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

not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203

(Minn. 2003). A district court abuses its discretion when it misapplies the law. Kronig v.

State Farm Auto. Ins. Co., 567 N.W.2d 42, 45–46 (Minn. 1997). But the erroneous

admission of evidence does not warrant reversal unless the error “substantially

influence[d] the jury’s decision.” State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997). On

review, appellant bears the burden of establishing that the district court abused its

discretion and that appellant suffered prejudice. Id.

       Hearsay is an out-of-court statement offered as evidence to prove the truth of the

matter asserted. Minn. R. Evid. 801(c). Generally, hearsay is not admissible unless it

meets a recognized exception under the rules of evidence. Minn. R. Evid. 802. But a

declarant’s prior consistent statement is admissible as substantive non-hearsay evidence if


                                             4
the declarant testifies at trial, is subject to cross-examination, and the statement is helpful

to the factfinder in evaluating the declarant’s credibility. Minn. R. Evid. 801(d)(1)(B).

Before the prior statement can be admitted, the district court must determine whether the

credibility of the witness has been challenged, whether the statement bolsters the

witness’s credibility, and whether the statement is consistent with the trial testimony.

State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24,

2000). The prior statement and trial testimony need not be exact in every detail, but must

be “reasonably consistent” with one another if the prior statement is to be admitted under

this exception. Id.; In re Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn. App. 1998). To

ensure that a few consistent statements are not “used to bootstrap into evidence”

otherwise inadmissible statements, the district court is required to analyze each out-of-

court statement to determine its consistency with the trial testimony.           Bakken, 604

N.W.2d at 109.

       Here, the district court did not analyze the admissibility of each statement that

R.R. made to Detective Witt, but determined that R.R.’s entire statement was admissible

because R.R. testified that “she did talk” and that she “did give an interview.” Appellant

concedes that he challenged R.R.’s credibility, but argues that R.R.’s trial testimony was

not consistent with several of the statements that she made to the detective. We agree.

       R.R.’s trial testimony and her statement to Detective Witt were consistent

regarding R.R.’s purchase of the guns, appellant’s prior possession of the guns, and some

of the events surrounding appellant’s confrontation with S.M. But R.R.’s trial testimony

and her prior statement were inconsistent regarding appellant’s possession of a gun


                                              5
relevant to the charged offense; specifically, whether appellant possessed a gun when he

confronted S.M. and whether appellant “showboat[ed]” both guns.                 Because these

differences affect material elements of the criminal charge, they are significant. See

Bakken, 604 N.W.2d at 110 (“[W]here inconsistencies directly affect the elements of the

criminal charge, the Rule 801(d)(1)(B) requirement of consistency is not satisfied and the

prior inconsistent statements may not be received as substantive evidence under that

rule.”). We therefore conclude that the district court abused its discretion by admitting

R.R.’s statements regarding appellant’s possession of a firearm as prior consistent

statements.

       The state argues that R.R.’s out-of-court statements are consistent with her trial

testimony because R.R. testified on direct examination about the statements that she

made to Detective Witt. We do not find the state’s argument persuasive. The record

reflects that, at trial, the state attempted to use R.R.’s out-of-court statements to refresh

R.R.’s recollection of the incident. After R.R. reviewed a transcript of her statements,

she acknowledged that she spoke to the detective and testified regarding what she told the

detective.

       R.R. did not, however, claim that what she told the detective constituted her

present recollection, nor did she testify that her out-of-court statements were otherwise an

accurate reflection of what occurred that day. Instead, R.R. testified that she did not

recall being interviewed by the detective and admitted that she could not remember if she

was honest when she spoke to the detective. The purpose of admitting a prior consistent

statement is to assist the factfinder in evaluating a witness’s credibility; logically, the fact


                                               6
that the declarant is consistent in his or her description of the events helps establish that

the declarant is a credible witness. See generally Minn. R. Evid. 801 cmt. (stating that

purpose of admitting prior consistent statements under Minn. R. Evid. 801(d)(1)(B) is to

rebut inferences of fabrication). Because R.R. did not establish in her testimony that her

recollection of whether appellant possessed a gun was consistent with what she told the

detective, her prior statements did not aid the jury in its evaluation of her credibility.

Therefore, the admission of these statements was erroneous.

       We therefore consider whether the erroneous admission of these statements was

harmless. State v. Vang, 774 N.W.2d 566, 576 (Minn. 2009). The erroneous admission

of hearsay evidence does not affect the verdict if there is a separate basis for which the

evidence is otherwise admissible. State v. Robinson, 718 N.W.2d 400, 407–10 (Minn.

2006). Here, the state contends that the statement was also admissible under the residual

exception to the hearsay rule.

       The residual exception permits the admission of certain hearsay statements that do

not fall under the usual hearsay exceptions enumerated in rules 803 and 804. Minn. R.

Evid. 807. A party seeking to admit an out-of-court statement under this exception must

establish, under the totality of the circumstances, that the statement has “circumstantial

guarantees of trustworthiness” equivalent to the other hearsay exceptions.1 Robinson,

718 N.W.2d at 408. Generally, the relevant circumstances that this court considers are:


1
 Prior to admission, the district court must also determine: (1) the statement is offered as
evidence of a material fact; (2) the statement is more probative on the point for which it is
offered than any other evidence procured through reasonable efforts; (3) the general
purpose of the rules of evidence and interests of justice will be served by admission of the

                                             7
             whether the statement was given voluntarily, under oath, and
             subject to cross-examination and penalty of perjury; the
             declarant’s relationship to the parties; the declarant’s
             motivation to make the statement; the declarant’s personal
             knowledge; whether the declarant ever recanted the
             statement; the existence of corroborating evidence; and the
             character of the declarant for truthfulness and honesty.

State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013). The focus of this analysis is on the

statement itself and not whether the person to whom the statement was made is reliable.

State v. Ahmed, 782 N.W.2d 253, 261 (Minn. App. 2010).

      After review of the relevant factors, we conclude that R.R.’s statements do not

contain “circumstantial guarantees of trustworthiness” equivalent to other hearsay

exceptions. Robinson, 718 N.W.2d at 408. R.R. did not make her statements under oath

and was not subject to cross-examination when she made them. Moreover, at the time

that R.R. spoke to the detective, her character for truthfulness and honesty was minimal.

She testified that she was heavily intoxicated when she spoke to Detective Witt and

admitted that she was unsure if she was honest when speaking to the detective. The

detective also testified that R.R. did not appear alert or focused and stated that R.R.

struggled to understand the detective’s questions.     In addition, R.R. had reason to

implicate appellant; she knew that the terms of her probation prohibited her from

possessing firearms and was aware that she faced possible sanction if she admitted that

the firearms belonged to her. Finally, R.R’s statements are not corroborated by any other




statement; and (4) the proponent of the statement made known to the adverse party its
intent to offer the statement sufficiently in advance of trial. Minn. R. Evid. 807. The
parties do not dispute that these requirements are met here.

                                           8
evidence offered at trial.2 Considering the totality of the circumstances, the residual

exception does not constitute an alternative basis for the admission of R.R.’s out-of-court

statements into evidence.

       The erroneous admission of evidence is also harmless if there is no “reasonable

possibility   that   the   wrongfully   admitted   evidence    significantly   affected   the

verdict.” State v. Ness, 707 N.W.2d 676, 691 (Minn. 2006). In making this

determination, we must decide whether the verdict might have been more favorable to the

defendant if the evidence had been excluded. State v. Post, 512 N.W.2d 99, 102 n.2

(Minn. 1994). If there is a reasonable possibility that the verdict might have been more

favorable to the defendant without the evidence, then the error is prejudicial. Id.

       Here, R.R.’s testimony regarding her recollection of the incident was unlikely to

assist the jury because she had no recollection of what occurred due to her

intoxication. Likewise, her testimony regarding the statements that she made to the

detective was also unlikely to be persuasive because R.R. only vaguely repeated what she

read on the transcript. In contrast, the jury was much more likely to find Detective Witt’s

testimony regarding R.R.’s out-of-court statements to be credible and persuasive. See

State v. Wright, 726 N.W.2d 464, 477 (Minn. 2007) (noting that jurors are likely to find a

witness’s out-of-court statements to be credible if testified to by a police

officer). Because of the detective’s testimony, the jury was much more likely to find

2
  Though there was testimony that appellant had possessed the seized guns on several
previous occasions, this testimony does not establish that appellant possessed a firearm in
this case. See generally Minn. R. Evid. 404(b) (stating that evidence of other acts may
not be admitted to prove the character of a defendant to establish that the defendant acted
in conformity with that character).

                                             9
appellant guilty based upon R.R.’s out-of-court statements, which were highly probative

of the charged offense.     In addition, the state relied heavily on R.R.’s out-of-court

statements during closing argument. The prosecutor argued to the jury that “[i]f you

believe [appellant] possessed the gun, that he held it in his hand, put it in his waistband,

wherever on his body, he’s guilty,” and told the jury that “[i]f you believe [R.R.], we are

done. He’s guilty.” The prosecutor emphasized the importance of R.R.’s out-of-court

statements, implying to the jury that because R.R.’s consumption of prescription drugs

and alcohol prevented her from recalling what occurred on the offense date, the jury

should rely on her out-of-court statements as substantive evidence to establish appellant’s

guilt.

         Finally, we note that the other evidence of appellant’s guilt is not overwhelming

and is based mostly on the state’s theory of constructive possession. R.R.’s statements to

Detective Witt constitute important direct evidence that is relevant to appellant’s

possession of a firearm.3 Recognizing this, and the fact that no other witness was able to

testify about appellant’s actual or constructive possession of a firearm, the state

repeatedly directed the jury’s attention to R.R.’s statements. The state’s overt reliance on

R.R.’s statements, combined with minimal other evidence establishing appellant’s guilt,

makes it reasonably possible that the wrongfully admitted evidence significantly affected

the verdict.



3
  DNA evidence may establish that appellant exercised possession of a gun, but does not
prove that his possession occurred in connection with this incident or whether it occurred
in connection with appellant’s past acts.

                                            10
       Based upon the above factors, we conclude that the admission of R.R.’s statement

to Detective Witt was not harmless. We therefore reverse appellant’s conviction and

remand for a new trial. Because we reverse on the hearsay issue alone, we do not

consider appellant’s additional claims of error.4

       Reversed and remanded.




4
  We do note, however, that a typographical error is contained on appellant’s warrant of
commitment, which indicates that a fine of $3,000 was imposed. At sentencing, the
district court imposed a fine of $300.

                                             11
