State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0892

State of Minnesota,
Respondent,

vs.

Sarar Chan Chhoy,
Appellant.

Filed March 6, 2017
Affirmed
Schellhas, Judge

Ramsey County District Court
File No. 62-CR-15-7237

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, A ssistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his convictions for possession of a firearm by an ineligible
person and reckless discharge of a firearm. We affirm.

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FACTS
On a September 2015 evening, A.Y. wa s watching televisi on when he heard
gunshots coming from the street in front of hi s house. A.Y. stepped outside to investigate
and saw three men walking down the street. On e man was firing a gun into the air. A.Y.
believed the man firing the gun was a light-s kinned Hispanic or As ian man wearing red
shorts and a red shirt. A.Y. watched as at least one of the men ran into an apartment across
the street.
Police arrived within minutes, and A.Y. to ld an officer what he had witnessed.
Police then obtained a warrant to search the apartment. Five adults, including Sarar Chhoy,
were found inside. Chhoy was wearing red shorts and a red shirt. Police summoned A.Y.,
and he identified Chhoy as the man he had s een shooting a gun into the air. A.Y. also
identified a second man, P.D., as one of the other men he had seen with Chhoy. A.Y. could
not identify the third man he saw from among the people found in the apartment.
Police searched the apartment and discove red a 9 mm handgun hidden in the toilet
tank in the bathroom. A handgun magazine was recovered from the garbage can in the
kitchen, and an unspent 9 mm cartridge was located nearby on the kitchen floor. Police
also recovered three spent 9 mm shell casings from the street outside the apartment. The
handgun, unspent cartridge, and magazine we re swabbed for DNA, but no measurable
sample was obtained from any of the items.
The state charged Chhoy with possession of a firearm by an inel igible person and
reckless discharge of a firearm. A jury found him guilty of both counts. Chhoy now appeals.

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D E C I S I O N
I
Before trial, Chhoy moved the district c ourt “[f]or an order requiring a hearing
outside the presence of the jury to determine the admissibility of the testimony of Nathaniel
Pearlson who performed ballistics testing in this case.” At a pretrial hearing, defense
counsel explained:
[W]e would ask that the court consider doing a voir dire
of the witness outside of the presence of the jury to determine
whether the testimony he’s abou t to give is foundationally
reliable and to determine whethe r it is too confusing for the
jury.
Essentially, what th is witness, I believe, will say is that
he cannot say that the recovered cartridges were fired from the
recovered firearm. That he can say that he believes they had
been cycled through that firearm; but, he cannot say that they
have been fired by that firear m. And I think that that’s not
typically what we see. We typi cally see an analyst, the state
introducing evidence that the ballistics match; that the analyst
can say that the bullet recovered or the cartridge recovered was
fired from that firearm. But, there was too much variability in
the testing and the test firing for that analyst to be able to make
that finding.
So, that’s why it’s a little mo re complicated and that’s
why I would like to have a hear ing outside of the presence of
the jury about whether what he has to say is foundationally
reliable; and whether what he ha s to say is more prejudicial
than probative in that it would be confusing to the jury.

Defense counsel added, “[W]e’re not asking for this to happen before the trial.” When the
district court asked counsel if she was “actually requesting an opportunity, [her]self, to voir
dire the witness,” counsel replied, “Yes, Your Honor, I apologize. That’s what I meant to
say that we would ask for an opportunity to vo ir dire the witness in front of the court and
have the court make that determination.”

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On the first day of trial, the district court ruled that the ballistics-comparison
evidence was admissible and that “questions about [Pearlson’s] training and information
regarding details about which he might tes tify . . . could all be addressed in cross-
examination.” Chhoy did not object. Pearlson subsequently testified that he compared
markings on shell casings obtained from test firing the handgun with the casings found in
the street. He concluded that the shell casing s found in the street had been fired from or
cycled through the handgun found in the apartment.
Chhoy argues on appeal that the distri ct court erred by admitting the ballistics
testimony “without first holding a hearing to determine whether his opinion had
foundational reliability.” The rules of evidence permit th e admission of expert testimony
when it will assist the jury in understanding the evidence or in determining factual issues.
Minn. R. Evid. 702. The witness must be “qua lified as an expert” and the expert opinion
must have “foundational reliability.” Id. This court reviews the admission of expert
testimony for an abuse of discretion. State v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009).
Chhoy appears to argue that the district court should have held a pretrial Frye-Mack
hearing to determine whether Pearlson’s opinion was admissible. See Goeb v. Tharaldson,
615 N.W.2d 800, 814 (Minn. 2000) (stating that, under the Frye-Mack standard, “when
novel scientific evidence is offered, the district court must determine whether it is generally
accepted in the relevant scien tific community,” and whether “the particular scientific
evidence . . . ha[s] fo undational reliability”); Minn. R. Evid. 702 (“[I]f the opinion or
evidence involves novel scientific theory, the proponent must establish that the underlying

5
scientific evidence is generally accepted in the relevant scientific community.”). Chhoy’s
argument is problematic for various reasons.
First, the Frye-Mack standard only applies to “evidence based on emerging
scientific techniques.” Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 528 (Minn.
2007) (quotation omitted). And th e evidence here was not nov el; Minnesota courts have
admitted ballistics-comparison evidence for years. See, e.g., State v. DeRosier, 695 N.W.2d
97, 103 (Minn. 2005); State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998). Second, Chhoy
did not move for a pretrial hearing, and he points to no authority suggesting that the court
was required to hold a hearing sua sponte. Cf. State v. Tanksley, 809 N.W.2d 706, 710 n.4
(Minn. 2012) (noting that the distri ct court “is not required to hold a Frye–Mack hearing
sua sponte when the party opposing the admission of scientific evidence has failed to file
a motion or state a proper objection”). Finally, defense counsel specifically informed the
district court that she was not seeking a pretrial heari ng. Chhoy therefore cannot
convincingly argue on appeal that the district court abused its discretion by not holding a
pretrial hearing.
II
Chhoy argues that the district court erred by prohibiting him from questioning A.Y.
about his probationary status. At the time of the shooting and trial, A.Y. was on probation
for a drug offense. Prior to trial, Chhoy’s counsel requested the district court allow him to
question A.Y. about his probation, arguing:

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I think it goes to [A.Y.]’s credibility in why he was awake at 2
o’clock in the morning; 1 why he may have witnessed this
particular incident; and whethe r he was actually observing it
correctly or not. It could go to a reason why he would not admit
that he had been drinking or he would not admit that he had
been consuming any kind of controlled substance, because
doing those things would have been a violation of his
probation.

The district court ruled that the fact that A.Y. was on probation for a drug offense was
irrelevant. Chhoy argues that the district c ourt’s ruling violated his confrontation rights
because he was not permitted to cross-examine A.Y. for potential bias.
“[Appellate courts] review a district court’s evidentiary rulings for abuse of
discretion.” State v. Graham , 764 N.W.2d 340, 351 (Minn. 2009). When a district court
erroneously excludes evidence in violation of the defendant ’s constitutional rights, the
conviction must be reversed if “there is a reasonable possibility that the verdict might have
been different if the evidence had been admitted.” Id. (quotation omitted).
The Sixth Amendment of the United Stat es Constitution guarantees a criminal
defendant the right to confront and cross-examine witnesses. Davis v. Alaska , 415 U.S.
308, 315, 94 S. Ct. 1105, 1110 (1974). But that guarantee is limited to “an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106
S. Ct. 292, 294 (1985). “In criminal cases, the Confrontation Clause contemplates a cross-
examination of the witness in which the defendant has th e opportunity to reveal a

1 Defense counsel appears to have misspoken about the relevant time of night. The
undisputed evidence shows that the shots were fired at approximately 11:40 p.m.

7
prototypical form of bias on the part of the witness.” State v. Lanz-Terry, 535 N.W.2d 635,
640 (Minn. 1995); see also Minn. R. Evid. 616 (“For the purpose of attacking the credibility
of a witness, evidence of bias, prejudice, or interest of the witness for or against any party
to the case is admissible.”). “Bias is a catc hall term describing a ttitudes, feelings, or
emotions of a witness that might affect [the witness’s] testimony, leading [the witness] to
be more or less favorable to the position of a party for reasons other than the merits.” Lanz-
Terry, 535 N.W.2d at 640 (quotation omitted). “But not everything tends to show bias, and
courts may exclude evidence that is only marginally useful for this purpose.” Id.
Chhoy argues that Davis supports his contention that th e district court abused its
discretion when it prohibited him from questioning A.Y. about his probationary status. In
Davis, the Supreme Court held a trial court violated a defendant’s Sixth Amendment rights
when it ruled that he could not question th e prosecution’s principal witness about his
probationary status as a juvenile delinquent. 415 U.S. at 318, 94 S. Ct. at 1111. The Court
determined that the defendant should have been allowed to cross-examine the witness
about his potential bias based on his vulnerabl e status as a probationer and the witness’s
possible concern that he was a suspect in the investigation. Id. at 317–18, 94 S. Ct. at 1111.
Davis is distinguishable from this case. Unlike the witness in Davis, nothing in the
record in this case suggests that A.Y. had a clear motive to fabricate his testimony. No
evidence suggests that the police suspected that A.Y. mi ght have been involved in the
shooting or that police knew of A.Y.’s probationary status and that he testified in exchange
for favorable treatment. Defense counsel’s argum ents to the district court that A.Y.’s
probationary status would have explained why he was awake and “why he would not admit

8
that he had been drinking or . . . consuming any kind of controlled substance” also do not
survive scrutiny. A.Y. testified that he was awake at the time the shots were fired because
he was watching television. And Chhoy does not explain ho w A.Y.’s probationary status
would be relevant for cross-examination of that testimony. Additionally, the argument that
A.Y. had an incentive to av oid admitting he was violating his proba tion by consuming
alcohol or drugs is entirely speculative. No evidence suggests that A.Y. was violating that
term of his probation. Although an officer testified at trial that Chhoy and P.D. appeared
to have been drinking alcohol, the officer stated that he did not make a similar observation
about A.Y.
Because A.Y.’s probationary status would have been, at best, only marginally useful
for impeaching his potential bias, the district court did not abuse its discrimination by
limiting cross-examination.
III
At the outset of trial, Chhoy stipulated to his ineligibility to possess a firearm. While
questioning a police officer at trial, the prosecutor asked, “Why were both Mr. Chhoy and
[P.D.] arrested?” The officer replied: “Based on criminal histories. And they were—it was
stated by [A.Y.] that it was Chhoy that shot and [P.D.] was right next to him at the time of
the shooting.” Chhoy did not object to the testimony.
On appeal, Chhoy argues that the prosecutor elicited the criminal-history testimony
from the police officer and it was misconduct that warrants a new trial. This court reviews
claims of unobjected-to prosecutorial miscon duct under a modified plain-error standard.
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Chhoy must show that the prosecutor

9
erred and that the error was plain. Id. An error is plain if it “contravenes case law, a rule,
or a standard of conduct.” Id. When plain error is shown, the burden shifts to the state to
demonstrate that the error did not affe ct the defendant’s substantial rights. Id. If the state
fails to carry its burden, “the court then a ssesses whether the error should be addressed to
ensure fairness and the integrity of the judicial proceedings.” Id.
Even assuming that the polic e officer’s reference to cr iminal histories was plain
error, the state met its burden of showing that the officer’s testimony did not affect Chhoy’s
substantial rights because there is no “reas onable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(quotations omitted). The testimony was vague, brief, and isolated; the prosecutor did not
ask the officer to elaborate on the testimony, and no reference was made to it at any other
point during trial. See State v. Prtine , 784 N.W.2d 303, 315 (Minn. 2010) (concluding
alleged prosecutorial misconduct was not prejudicial in part because testimony elicited
“was brief, isolated, and not repeated”). Add itionally, the verdict is supported by A.Y.’s
eyewitness testimony, identifying Chhoy as the possessor of the handgun. The alleged
misconduct therefore likely di d not affect the verdict. See State v. McNeil , 658 N.W.2d
228, 236 (Minn. App. 2003) (holding that prosecutorial miscond uct was outweighed by
victim’s testimony).
Affirmed.