                        This opinion will be unpublished and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
                                   A14-0665


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                             Albert Michael Openshaw,
                                     Appellant.


                                Filed April 13, 2015
                                     Affirmed
                                 Halbrooks, Judge


                          Mahnomen County District Court
                              File No. 44-CR-12-419

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Darlene Rivera Spalla, Mahnomen County Attorney, Mahnomen, Minnesota (for
respondent)

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

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

Larkin, Judge.
                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant Albert Michael Openshaw challenges his conviction of first-degree

arson, arguing that the district court abused its discretion by admitting into evidence a

witness’s hearsay statement. Because we conclude that the district court’s erroneous

admission of the hearsay statement was harmless, we affirm.

                                        FACTS

      On June 9, 2012, the Mahnomen County Sheriff’s Office received a report of a fire

in an apartment.    When the responding deputy arrived at the scene, he observed

Openshaw outside the main entrance to the apartment building and heard him mumble

that a room in the building was on fire. The deputy asked Openshaw if he “did it,” and

Openshaw said that he did. The deputy went to the apartment, found the sprinkler system

on, and observed smoke. The deputy detained Openshaw. Shortly thereafter, J.G., who

lived in the apartment building, approached the deputy and gave him information

regarding Openshaw. The deputy then accompanied J.G. to her apartment, where she

gave a recorded statement.

      The deputy reviewed the apartment building’s security footage and identified

Openshaw entering and re-entering the apartment unit where the fire occurred. The

apartment belonged to Openshaw’s girlfriend. After an investigation, the fire marshal

concluded that the fire was intentionally set by Openshaw. The state charged Openshaw

with first-degree arson, in violation of Minn. Stat. § 609.561, subd. 1 (2010), second-




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degree burglary, and trespassing. The state later dismissed the burglary and trespass

counts.

       In a pretrial motion, the state moved the district court to allow “upon laying of

proper foundation with testimony, admission of a statement made by [J.G.] immediately

after the fire was contained with regard to events that allegedly occurred just prior to the

fire alarms and sprinkler system being activated.” The district court deferred its ruling on

whether to admit J.G.’s recorded statement until trial. During J.G.’s trial testimony, the

state again requested that the district court admit J.G.’s statement, and Openshaw

objected on the basis of hearsay.

       The state first argued that the statement fell under the present-sense-impression

exception to the hearsay rule. Openshaw responded that, to be admissible, the statement

needed to qualify as a prior consistent statement or a prior inconsistent statement, but that

J.G. had not yet testified to the facts contained in the prior recorded statement. As a

result, the statement was neither consistent nor inconsistent with her testimony.         In

response, the state argued that the statement was admissible to refresh J.G.’s recollection.

       The district court admitted J.G.’s statement as a prior consistent statement under

Minn. R. Evid. 801(d)(1)(B), but noted that the statement could also be admitted under

the residual hearsay exception articulated in Minn. R. Evid. 807. The statement was

marked as exhibit 7, and the audio recording was played for the jury.

       During deliberations, the jury asked to hear J.G.’s recorded statement again, and

the statement was replayed for the jury. The jury returned a guilty verdict. The district




                                             3
court sentenced Openshaw to prison for a period of 117 months and imposed restitution

in the amount of $141,308.99. Openshaw now appeals.

                                     DECISION

       Hearsay is an out-of-court statement offered “to prove the truth of the matter

asserted” and is generally not admissible at trial. Minn. R. Evid. 801(c), 802. But an out-

of-court statement may be admissible if it is covered by an exception to the hearsay rule

or is exempted from the definition of hearsay. State v. Robinson, 699 N.W.2d 790, 794

(Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006). “Evidentiary rulings rest

within the sound discretion of the [district] court and will not be reversed absent a clear

abuse of discretion.” State v. Carridine, 812 N.W.2d 130, 141 (Minn. 2012) (quotation

omitted). The appellant bears the burden of establishing that the district court abused its

discretion and that he was thereby prejudiced. State v. Griffin, 834 N.W.2d 688, 693

(Minn. 2013). If the district court erroneously admits an out-of-court statement, the

question becomes “whether the error was harmless.” State v. Robinson, 718 N.W.2d 400,

407 (Minn. 2006). We will not reverse the district court’s evidentiary ruling “unless the

error substantially influenced the jury’s verdict.”     Carridine, 812 N.W.2d at 141

(quotation omitted).    Here, the district court admitted J.G.’s statement as a prior

consistent statement and also referenced the residual hearsay exception.

Prior Consistent Statement

       Under Minn. R. Evid. 801(d)(1)(B), a witness’s prior statement that is consistent

with her testimony at trial “is admissible as nonhearsay evidence if the statement is

helpful to the trier of fact in evaluating the witness’s credibility, and if the witness


                                            4
testifies at trial and is subject to cross-examination about the statement.” State v. Bakken,

604 N.W.2d 106, 108-09 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).

Before the statement may be admitted, the district court must first make a “threshold

determination” that the witness’s credibility has been challenged. Id. at 109; see also

State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997) (holding that “before the statement

can be admitted, the witness’ credibility must have been challenged”). The district court

must then determine whether the out-of-court statement was consistent with the witness’s

trial testimony. Bakken, 604 N.W.2d at 109. And the district court must evaluate

whether the statement would “be helpful to the trier of fact in evaluating the witness’s

credibility.” Id.

       Here, the district court indicated that Openshaw’s counsel was “going to be talking

about [J.G.’s] ability to perceive things on the night in question, so her credibility is

going to be challenged, from what I understand.” But Openshaw’s counsel did not

comment on J.G.’s credibility in his opening statement and had not yet cross-examined

J.G. prior to the admission of her prior recorded statement. Therefore, J.G.’s credibility

had not yet been challenged and the statement should not have been admitted as a prior

consistent statement.

       In addition, “when a witness’ prior statement contains assertions about events that

have not been described by the witness in trial testimony, those assertions are not helpful

in supporting the credibility of the witness and are not admissible under this rule.” Minn.

R. Evid. 801(d)(1)(B) 1989 comm. cmt. Here, J.G. testified that she did not remember

(1) what happened while Openshaw was in her apartment on the night of the fire,


                                             5
(2) saying anything to Openshaw after the fire, or (3) what she told the deputy. But

J.G.’s recorded statement contained assertions that (1) Openshaw had come to J.G.’s

apartment to use her phone to call his girlfriend; (2) about 30 seconds before the fire

alarm went off, he told her to get her kids downstairs “because he had a bad feeling”;

(3) after evacuation of the building, she asked Openshaw what he did and he said that he

fell asleep with a cigarette in his girlfriend’s apartment; and (4) Openshaw had accused

his girlfriend of cheating on him and that he was trying to get back at his girlfriend.

J.G.’s recorded statement contained assertions that she did not describe in her testimony

at trial. Therefore, the recorded statement was not “consistent” with her trial testimony.

       Because the statement was admitted prior to any challenge to J.G.’s credibility and

because the statement was not consistent with her trial testimony, the statement was not

“helpful to the trier of fact in evaluating the witness’s credibility.” See Bakken, 604

N.W.2d at 109. J.G.’s statement does not qualify as a prior consistent statement under

rule 801(d)(1)(B).

Residual Hearsay Exception

       After ruling that the statement was admissible as a prior consistent statement, the

district court stated, “I also believe it would fall under the 807 exception as well.” This

exception permits the admission of hearsay statements that do not fall under the usual

hearsay exceptions enumerated in rules 803 and 804. But prior to admission, the district

court must determine that (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” that can be procured through reasonable efforts, (3) “the general purposes of


                                             6
these rules [of evidence] and the interests of justice will best be served by admission of

the 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.

Importantly, a party seeking to admit a statement under this exception must also

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

guarantees of trustworthiness” equivalent to the other hearsay exceptions. Robinson, 718

N.W.2d at 408. District courts “should make findings explicitly on the record unless

there is a waiver” supporting their evidentiary rulings. State v. DeRosier, 695 N.W.2d

97, 105 (Minn. 2005). Here, the residual hearsay exception is not a valid basis for

admitting J.G.’s statement because the district court did not make any findings regarding

the factors listed above, particularly regarding the trustworthiness of J.G.’s statement, and

nothing in the record affirmatively demonstrates that J.G.’s statement had “circumstantial

guarantees of trustworthiness.”

Harmless Error

       We review objected-to erroneous evidentiary rulings for harmless error. State v.

Vang, 774 N.W.2d 566, 576 (Minn. 2009). Erroneous admission of evidence is harmless

if there is no “reasonable possibility that the wrongfully admitted evidence significantly

affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Part of the

harmless-error test is to determine whether the statement was otherwise admissible.

Robinson, 718 N.W.2d at 407-10. Even if we disagree with the district court’s reasoning

for admitting J.G.’s statement, we will affirm the conviction if the statements are




                                             7
admissible on other grounds. See Robinson, 699 N.W.2d at 799. We therefore will

address other bases for admission of the statement.

Present-Sense Impression

      A declarant’s prior statement “describing or explaining an event or condition made

while the declarant was perceiving the event or condition or immediately thereafter” is

not hearsay if the declarant testifies and is subject to cross-examination concerning the

statement. Minn. R. Evid. 801(d)(1)(D). “The subject matter of the statement must

describe an event or condition at or near the time the declarant perceives the event or

condition.”    Minn. R. Evid. 801(d)(1)(D) 1989 comm. cmt.               A statement is

contemporaneous for purposes of this rule so long as “there is little time to consciously

fabricate a story.” State v. Pieschke, 295 N.W.2d 580, 583 (Minn. 1980). Here, J.G.

made her statement at 4:50 a.m. The fire occurred more than one hour earlier, at 3:40

a.m. We conclude that the statement does not qualify as a present-sense impression. An

hour between the incident and J.G.’s recorded statement was enough time for her to

fabricate a story. In addition, J.G.’s statement does not “describe an event or condition”

because it merely describes what Openshaw said to J.G. with some context.

Excited Utterance

      “A statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition” may be admissible

as an exception to the hearsay rule. Minn. R. Evid. 803(2). “The rationale for this

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.”


                                            8
State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (quotation omitted). Here, nothing in

the record indicates that J.G. was “under the stress of excitement” caused by the fire

when she gave the recorded statement to the deputy. Therefore, the statement does not

fall under the excited-utterance exception to the hearsay exception.

Prior Inconsistent Statement

       In order to qualify as a prior inconsistent statement, the statement needs to be

“given under oath subject to the penalty of perjury.” Minn. R. Evid. 801(d)(1)(A). J.G.’s

statement was not given under oath. Therefore, the statement does not qualify as a prior

inconsistent statement.

Recorded Recollection

       The state argues that the statement was admissible under the recorded-recollection

hearsay exception. Minn. R. Evid. 803(5) defines a recorded recollection as:

              A memorandum or record concerning a matter about which a
              witness once had knowledge but now has insufficient
              recollection to testify fully and accurately, shown to have
              been made or adopted by the witness when the matter was
              fresh in the witness’ memory and to reflect that knowledge
              correctly. If admitted, the memorandum or record may be
              read into evidence but may not itself be received as an exhibit
              unless offered by an adverse party.

       But J.G.’s statement was not merely “read into evidence”—it was received as an

exhibit. Under the rule, a recorded recollection may not be received as an exhibit unless

it is offered by the adverse party. In this case, the state, not the adverse party, offered the

exhibit. Therefore, the statement was not admissible under the recorded-recollection




                                              9
exception to the hearsay rule. We conclude that J.G.’s statement is hearsay and is not

admissible under any exception to the hearsay rule.

Substantial Influence on the Verdict

         We next consider whether the district court’s error prejudiced Openshaw.

“Reversal is warranted only when the error substantially influences the jury’s decision.”

Nunn, 561 N.W.2d at 907. Openshaw argues that J.G.’s statement was the only piece of

evidence that the jurors requested to review during deliberations, demonstrating its

substantial influence on the jury. But the district court noted during trial that one juror

could not hear the recording of J.S.’s statement. The district court told the jury that the

statement could be replayed at a different time. This could explain why the jury asked to

replay the statement—not because the jury was substantially influenced by the statement,

but because one juror had not heard the statement when it was played during trial.

Pursuant to Minn. R. Crim. P. 26.03, subd. 20(2)(b), the statement was played in open

court.

         In addition, regardless of J.G.’s statement, the surveillance video and the fire

marshal’s expert testimony provided more than sufficient evidence upon which to convict

Openshaw. See State v. Miller, 754 N.W.2d 686, 704 (Minn. 2008) (holding that the

district court’s erroneous admission of a hearsay statement was harmless error because

“there was more than sufficient other evidence from which the jury could have inferred

[guilt]”). The fire marshal testified that the fire was “intentionally set” and “caused by

the last person that was in the apartment prior to the fire alarm system going off.” The

fire marshal opined that Openshaw set the fire because he was seen “in the [surveillance]


                                            10
video leaving the apartment five minutes prior to the alarm system going off.” And the

surveillance video showed Openshaw entering the apartment unit at approximately 3:31

a.m., exiting the apartment at 3:35 a.m., and the fire alarm going off five minutes later, at

3:40 a.m. The video does not support Openshaw’s testimony that he fell asleep with a lit

cigarette because it shows that he was only in the apartment for four minutes.            In

addition, J.G.’s statement does not contain an admission from Openshaw that he

intentionally set the fire. J.G.’s statement indicates that Openshaw had a “bad feeling”

and told J.G. that she should get her children downstairs and that Openshaw was upset

with his girlfriend and was trying to get back at her for cheating on him. While this could

imply a motive for intentionally starting the fire, J.G.’s statement also includes Openshaw

saying that the fire was started accidentally.

       Openshaw has not met his burden of demonstrating that there was a reasonable

possibility that the evidentiary error significantly affected the verdict. Therefore, the

district court’s error was harmless.

       Affirmed.




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