State of Minnesota v. Albert Michael Openshaw ( 2015 )

This opinion will be unpublished and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UNPUBLISHED OPINION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
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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
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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,
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(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
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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
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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.”
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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
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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]
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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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