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This opinion will be unpublished and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
A16-1346

State of Minnesota,
Respondent,

vs.

Samuel Haimah Boimah,
Appellant.

Filed May 30, 2017
Affirmed
Smith, Tracy M., Judge
Dissenting, Randall, Judge

Hennepin County District Court
File No. 27-CR-15-28523

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

Wynn Charles Curtiss, Hopkins City Attorney, Chestnut & Cambronne, PA, Minneapolis,
Minnesota (for respondent)

Jonathan E. Fruchtman, Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Smith, Tracy M., Judge; and
Randall, Judge.
*

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

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Samuel Haimah Bo imah was convicted of gross-misdemeanor stalking,
based on a threatening voicemail message he le ft for his former wife. Boimah argues on
appeal that the district court plainly erred by allowing his former wife and the investigating
police officer to testify about the contents of the voicemail message when the state had
neither introduced a recording of the message nor proved an exception to the best-evidence
rule. Because we conclude that the distri ct court did not plainly err in admitting the
testimony, we affirm.
FACTS
N.T. and Boimah were married from 2004 to 2010. N.T. re ceived a voicemail
message at 8:16 p.m. on August 4, 2015, which said, “[N.T.], I’m going to kill you.” N.T.
recognized Boimah’s voice and feared that Boimah might kill her. N.T. went to the
Hopkins Police Department on August 18. She played the message for an officer and told
him that she recognized Boimah’s voice and phone number. Boimah was charged with
gross-misdemeanor stalking.
A court trial was held, at which Boimah represented himself. The officer, N.T., and
Boimah testified. The officer testified that he heard a male voice on the voicemail message
say, “[N.T.], I’m going to kill you,” and that N.T. told him the voice was Boimah’s. N.T.
testified that she recognized Boimah’s voice and that the message said, “[N.T.], I’m going
to kill you.” Boimah did not object to the officer’s or N.T.’s testimony. Boimah testified
that he called N.T. at 8:16 p.m. on August 4 but denied making any threats. The state did

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not produce a recording of the voicemail message. The district court found Boimah guilty
of gross-misdemeanor stalking.
Boimah appeals.
D E C I S I O N
Boimah argues that the best-evidence rule required the state to produce the original
or a duplicate recording of th e voicemail message and that th e district court plainly erred
by admitting testimony about the contents of the voicemail message.
In the absence of an objection, we review the admission of evidence for plain error.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the plain-error standard, the
defendant must show: (1 ) an error, (2) that wa s plain, and (3) that the error affected the
defendant’s substantial rights. Id. Generally, an error is plain if it “contravenes case law,
a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The
rules of procedure and evidence apply to all litigants at trial; “[n]o extra benefits will be
given to pro se litigants.” See State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988).
The best-evidence rule requires that the original recording be produced to prove its
contents. Minn. R. Evid. 1002. The “ori ginal” means the recording itself or “any
counterpart intended to have th e same effect by a person executing or issuing it.” Minn.
R. Evid. 1001(3). But the original is not require d if (1) the original is lost or destroyed,
(2) the original is not obtainable, (3) the orig inal is in the possessi on of the opponent, or
(4) the original is not closely related to a controlling issue. Minn. R. Evid. 1004. A party
seeking to introduce secondary evidence based on the unavailability of the original must
“prove that a diligent but unsuccessful sear ch has been made for [the original].” City of

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St. Paul v. Dahlby , 266 Minn. 304, 315, 123 N.W.2d 586, 592 (1963). 1 Secondary
evidence about the contents of the original cannot be admitted where the original is
available. State v. DeGidio , 277 Minn. 218, 220, 152 N. W.2d 179, 180 (1967). But
reasonable discretion is given to the district court in the a pplication of the best-evidence
rule; “[t]he rule is not inflexible and must be applied with due regard to all circumstances.”
Dix v. Harris Mach. Co., 240 Minn. 218, 230, 60 N.W.2d 628, 635 (1953); see also State
v. Dienger, 286 Minn. 436, 438, 176 N.W.2d 528, 529 (1970).
The voicemail message is an original recording subject to the best-evidence rule.
Absent a showing of an exception, the state was required to produce the original recording
of the voicemail message. See Minn. R. Evid. 1001 (3), 1002. The st ate introduced no
evidence that the voicemail message was unavailable or that the state had made a diligent
but unsuccessful search for the original. See Dahlby, 266 Minn. at 315, 123 N.W.2d at
592. And no other exception e xplains the state’s failure to produce a recording of the
voicemail message. See Minn. R. Evid. 1004. The state thus did not establish that an
exception justified the admission of secondary evidence about the contents of the voicemail
message.
But, absent an objection, it was not plainl y erroneous for the district court to admit
the testimony about the contents of the voicemail message. In Manthey, the Minnesota

1 While the Minnesota Rules of Evidence became effective in 1977, the comments to rule
1004 make it clear that “[t]his rule is a codification of the common law.” See Minn. R.
Evid. 1004 1977 comm. cmt. Thus, pre-1977 cases that apply the best-evidence rule in a
manner consistent with the language of Minn. R. Evid. 1004 are instructive. See Angus v.
State, 695 N.W.2d 109, 119 (Minn. 2005) (discussing common-la w rules of evidence in
conjunction with the Minnesota Rules of Evidence).

5
Supreme Court considered the narrowness of the plain-error standard with respect to
hearsay evidence. Manthey, 711 N.W.2d at 504. The supr eme court stated that “[t]he
number and variety of exceptions to the he arsay exclusion make objections to such
testimony particularly important to the creation of a record of the trial court’s decision-
making process in either admitting or excluding a given statement.” Id. The hearsay rule’s
numerous exceptions “make it particularly important that a full discussion of admissibility
be conducted at trial.” Id. “In the absence of an objection, the state was not given the
opportunity to establish that some or all of the statements were admissible under one of the
numerous exceptions to the hearsay rule.” Id. The supreme court therefore concluded that
evidence was not “clearly or obviously inadmissible hearsay.” Id.
We apply the analysis of Manthey to this case. There are a number of exceptions to
the best-evidence rule. Minn. R. Evid. 1004; see Manthey, 711 N.W.2d at 504. Boimah’s
failure to object deprived the state of the opportunity to argue that an exception to the best-
evidence rule applied. See Manthey, 711 N.W.2d at 504. Moreover, the best-evidence rule
is “not inflexible,” and the district court has reasonable discretion in deciding whether to
admit secondary evidence. Dix, 240 Minn. at 230, 60 N.W.2d at 635. In light of Boimah’s
failure to object and the district court’s inherent discretion, the testimony about contents of
the voicemail message was not clearly or obviously inadmissible. See Manthey , 711
N.W.2d at 504 . We therefore conclude that it was not plainly erroneous for the district
court to admit the testimony about the contents of the voicemail message.

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Because the district court did not plainl y err in allowing N.T. and the officer to
testify about the contents of the voicemail message, we affirm.
Affirmed.

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RANDALL, Judge (dissenting)
I respectfully dissent. On the issue of “b est evidence,” I conclude that the district
court plainly erred in admitting oral testimony about the cont ents of a voicemail message
that was not received in evidence. I also conclude that the plain error affected appellant’s
substantial rights and that fairness requires reversal because the voicemail message was the
only credible evidence that appellant left a threatening message. Instead of reversing and
remanding for a new trial, I would reverse out right, because the absence of the voicemail
message meant the state did not prove the crime of stalking.
Appellant was charged with stalking for a single phone call to his former wife in
which he purportedly threatened to kill her. See Minn. Stat. § 609.749, subd. 2(1) (2016)
(providing a person stalks another by directly or indirectly manifesting a purpose or intent
to injure the person, propert y, or rights of another). Ap pellant admitted making a phone
call to his former wife, but he denied threat ening her. The police officer who listened to
the call was not familiar with appellant’s voice.
The only evidence th at appellant threatened to kill his former wife was her
testimony. The state did not offer the original recording of the phone call into evidence to
prove the content of the recording, which is required by Minn. R. Evid. 1002. The majority
concedes the state introduced no evidence that the voicemail message was unavailable or
that the state attempted to find it and bring it to the court’s atte ntion, or at least that they
tried to find it but could not. Because the state did not establish that the original recording
was lost or destroyed, that it was not obtai nable by other means, and the recording was
clearly not in appellant’s possession, the state did not establish an ex ception to the “best

D-2

evidence” requirement. Minn. R. Evid. 1004. The voicemail recording was not collateral.
It was the only evidence of the issue in the case: whether appellant threatened to kill his
former wife. See id. (providing exception to offering the original if “[t]he writing,
recording, or photograph is not closely related to a controlling issue”). The state also made
no attempt to have a qualified person listen carefully to the message and then retype it in a
transcript and swear that the transcript was exactly what it purported to be. See State v.
Olkon, 299 N.W.2d 89, 103 (Minn. 19 80) (providing that transc ript of recording should
not ordinarily be admitted into evidence unless both sides stipulate to its accuracy and agree
to its use as evidence). There is nothing in the record to sh ow that the state attempted to
find the voice message and bring it into the court or find an expert. No exception to offering
the original voicemail recording applies. Appellant has established error.
Appellant did not qualify for a public defe nder, and to his detriment attempted to
represent himself at trial. Once the state learned that appellant was proceeding pro se, it
apparently lost interest in producing the recorded voicemail message. Appellant did not
object to the state’s failure to produce the re corded voicemail message. Under the plain-
error standard, appellant has established that the error was plain, because the state did not
comply with Minnesota Rule of Evidence 1002 and 1004. See State v. Davis, 735 N.W.2d
674, 681 (Minn. 2007) (“An error is plain if it is clear or obvious, and usually this is shown
if the error contravenes case law, a rule, or a standard of conduct.”).
The state did not bother to submit a respondent’s brief on appeal, or even appear at
oral argument. Under the facts of this case , the state failed to in troduce “real” evidence
that appellant made the purported threat. It is clear that appellant has met his burden of

D-3

establishing a reasonable likelihood that the e rror substantially affected the verdict. See
State v. Manthey , 711 N.W.2d 498, 504 (Minn. 2006). I conclude that the lack of this
evidence affected the fairness and integrity of the judicial proceedings. Instead of reversing
and remanding for a new trial, I would dismiss the case outright for lack of evidence. There
are times when that happens. At the close of the state’s case, the judge can make a finding
on the record that the state did not produce en ough evidence to even send it to the jury to
determine if all of the essential elements of the charged crime were proven by proof beyond
a reasonable doubt. See Minn. R. Crim. 26.03, subd. 18 (1)(a) (permitting defendant to
move for judgment of acquittal at the close of state’s evidence). The same criteria applies
here. If appellant had moved for judgment of acquittal at the close of the state’s case, the
trial judge would have been requ ired to rule on the motion. See State v. Slaughter, 6901
N.W.2d 70, 75 (Minn. 2005) (c oncluding court is to apply sa me standard for deciding a
motion for judgment of acquittal in a bench trial as in a jury trial). I find the state’s
evidence, even when vi ewed in the light most favorable to the state, was insufficient to
sustain the conviction.
Break it down. A witness testifies, not as to a personal phone call she received, but
what she recalls a voice message said. She makes no showing to produce that phone. She
has law enforcement listen to the voice message and testify as to his recollection, but law
enforcement makes no attempt to bring the phone into court or locate it if it is missing.
Appellant agreed he made the phone call but denied making a threat. There is no
evidence other than the complainant’s second-hand testimony that appellant threatened her.
(Not directly, not a phone call she heard, but a voicemail message she recalls.) With the

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human voice, inflection and int onation can mean everything. See State v. Olson , 887
N.W.2d 692, 698-99 (Minn. App. 2016) (not ing that question of whether a statement
constitutes a threat depends on the context in which it is used). We have none of that here.
If the Minnesota Twins are in a funk and a game they should win is going south, some fan
in the stands might mutter, “I could kill that SOB for missing that play” (referring possibly
to a player or an umpire). O r, “I could kill for a cold beer because this game is dragging
on.” And so on and so forth. Something valu able is lost when so mebody tells me that
somebody else said something, but I do not get to hear fo r myself that other person’s
voicemail and their inflection or tone of voice and have to rely on a non-neutral interested
party.
Stalking is a serious gross misdemeanor. Conviction for “sta lking” will be an
anchor around appellant’s leg for the rest of his life. It will affect his ability to rent, to find
a job, perhaps to go on to higher education, and it will certainly cut him out of civil service
jobs for a city, county, state, or the federal government. It will adversely affect any attempt
to go into the military or law enforcement. It is just one of those crimes that after conviction
haunts a defendant.
I do not find anything in the record to sustain the trial court’s finding that the charge
was proved beyond a reasonable doubt.
I dissent and would reverse outright.