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This opinion will be unpublished and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
A16-1468

State of Minnesota,
Respondent,

vs.

Jeffery Lee Oliver,
Appellant.

Filed July 3, 2017
Affirmed
Larkin, Judge

Pennington County District Court
File No. 57-CR-15-736

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Alan G. Rogalla, Pennington County Attorney, Thief River Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his ammunition and controlled-substance convictions, arguing
that the district court plainly erred by admitting hearsay evidence. Because appellant has
not shown that the alleged error affected his substantial rights, we affirm.
FACTS
In September 2015, the State of Minnesota charged appellant Jeffery Lee Oliver
with ineligible possession of a firearm, fifth-degree controlled-substance crime (possession
of hydrocodone), theft of a motor vehicle, theft of a firearm, and theft of a contr olled
substance. In January 2016, the state amended the complaint to charge Oliver with
ineligible possession of ammunition . The state dismissed the theft charges before trial.
The remaining firearm, ammunitio n, and controlled -substance possession charg es we re
tried to a jury. Oliver stipulated that he was ineligible to possess a firearm and ammunition.
I.H. testified that on September 12, 2015, he and Oliver were at a party at J.D.’s
home. After I.H. left the party, he fell from his vehicle and broke his arm. Oliver noticed
I.H. on the ground, and I.H. asked Oliver for a ride home. Oliver drove I.H. home in I.H.’s
vehicle. I.H. testified that he stored his gun, ammunition, and prescription hydrocodone
pills in a lockbox at his home. He did not remove any of those items from the lockbox that
evening.
Deputy Kyle Miller of the Pennington County Sher iff’s Office testified that on
September 12, 2015, police dispatch informed him that an anonymous 911 call er had
reported that a male named Jeff Smith plann ed to rob I.H. at his home. The 911 caller
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indicated that a gun might be involved. Deputy Miller radioed State Trooper Anthony
Schmidt for backup, and Deputy Miller and Trooper Schmidt met at a convenience store
near I.H.’s home. While they were at the convenience store, Deputy Miller observed a
vehicle drive past that matched the description of I.H.’s vehicle. Trooper Schmidt followed
the vehicle, and Deputy Miller joined him after confirming that I.H’s vehicle was not at his
home. Deputy Miller pulled the vehicle over after observing it cross the center line. Oliver
was driving the vehicle, which was otherwise unoccupied.
During the ensuing investigative stop, Trooper Schmidt told Deputy Miller that he
saw a b ox of ammunition on the passenger seat of the vehicle . Deputy Miller removed
Oliver from the vehicle, searched him, and found two bottles of hydrocodone pills, which
were prescribed to I.H, in his pants pocket. Deputy Miller found a box of ammunition and
another bottle of I.H.’s prescription pills on the passenger seat. He also found a loaded gun
behind the passenger seat, wedged between the seat and a spare tire.
Trooper Schmidt testified that he approach ed the vehicle from the passenger side
because the 911 call indicated that a gun might be involved. Trooper Schmidt also testified
that he saw a box of ammunition “plain as day through the passenger window” and that the
ammunition box was not obscured.
Oliver testified that during the drive to I.H.’s house, I.H. asked Oliver to hold his
hydrocodone pills. Oliver also testified that he did not know that the gun and ammunition
were in the vehicle. Oliver admitted that the dome light turned on when he helped I.H. get
out of the vehicle.
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The jury found Oliver guilty of ineligible possession of ammunition and fifth-degree
controlled-substance possession. The jury acquitted Oliver of the gun-possession charge.
Oliver appeals.
D E C I S I O N
Oliver contends that “[t]he district court abused its discretion and committed plain
error when it admitted into evidence testimony from law enforcement officers about [the]
911 call they had received concerning a tip that ‘Jeff Smith’ was going to ‘rob’ [I.H.] using
a firearm.” He argues that “[b]ecause the statement of the unidentified 911 caller was
inadmissible prejudicial hearsay, it was plain error to allow the jury to hear the substance
of the 911 call and other references to it.”
Deputy Miller testified:
I was informed by our dispatch center that they’d received an
anonymous 911 call from a landline on the eastern edge of the
county stating that a male by the name of Jeff, I think Smith it
was, was planning to rob [I.H.] at his home in Goodridge.

Deputy Miller also testified that the 911 caller indicated that a gun m ight be
involved. Oliver’s counsel cross-examined Deputy Miller regarding the anonymous call:
Q: You also received information, didn’ t you, that the caller
said she was calling from Red Lake, Minnesota?
A: The caller said that she was calling from the Red Lake
Indian reservation.
Q: And had left [J.D.’s] residence?
A: Yep.
Q: Except that 911 dispatch tells you where the call comes
from and it was calling from the [J.D.] residence?
A: Yes, it was a landline that called from the [J.D.] residence.
Q: So clearly that report wasn’t true; that part of it wasn’t true?
A: That she was on the reservation, right.
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Trooper Schmidt refer red to the 911 call when explaining why he approach ed the
vehicle from the passenger side: “[T]he initial call was that potentially the person was
going to be robbed with a handgun, so I wanted to see if I could see any kind of weapon
that would harm [D]eputy Miller or myself.”
Oliver did not object to the testimony regarding the 911 call. Generally, failure to
object to the admission of evidence constitutes a w aiver of the issue on appeal . State v.
Tscheu, 758 N.W.2d 849, 863 (Minn. 2008) . But an appellate court may review an
unobjected-to error if (1) there was error, (2) the error was plain, and (3) the error affected
the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). To
satisfy the third prong, a defendant must show a reasonable likelihood that the error
substantially affected the verdict. State v. Robertson, 884 N.W.2d 864, 876 (Minn. 2016).
“The de fendant bears the heavy burden of proving prejudice.” State v. Wenthe , 865
N.W.2d 293, 299 (Minn. 2015) (quotation omitted), cert. denied, 136 S. Ct. 595 (2015). If
the first three prongs are satisfied, this court determines whether it should address the error
“to ensure fairness and the integrity of judicial proceedings.” Griller, 583 N.W.2d at 742.
If any prong of the plain-error test is not met, this court need not address the remaining
prongs. Robertson, 884 N.W.2d at 875; State v. Brown , 815 N.W.2d 609, 620 (Minn.
2012).
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). Hearsay is inadmissible unless an exception applies. Minn. R. Evid. 802;
State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006) . There are numerous exc eptions to
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the hearsay rule. E.g., Minn. R. Evid. 803 (setting forth 22 exceptions to the hearsay rule);
Minn. R. Evid. 804 (setting forth five exceptions to the hearsay rule); see also Minn. R.
Evid. 801(d) (setting forth nine hearsay exemptions).
In State v. Manthey, the Minnesota Supreme Court explained:
The number and variety of exceptions to the hearsay 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. The
complexity and subtlety of the operation of the hearsay rule
and its exceptions make it particularly important that a full
discussion of admissibility be conducted at trial.
. . . In the absence of an object ion, the state [is] 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.

711 N.W.2d at 504.
We need not determine whether the district court plainly erred b y allowing
testimony regarding the content of the 911 call because Oliver does not meet his heavy
burden to show that this evidence affected his substantial rights. See Robertson, 884
N.W.2d at 876 (declining to “consider the first two steps of the plain error analysis because
[defendant] has not shown that the alleged error affected his substantial rights”).
To return a guilty verdict on the charged offenses, the jury had to find that Oliver
possessed a firearm and ammunition while ineligible to do so and that he unlawfully
possessed a controlled substance, in this case, hydrocodone. See Minn. Stat. § 624.713,
subd. 1 (Supp. 2015) (defining the crime s of ineligible possession of a firearm and
ineligible possession of ammunition); Minn. Stat. § 152.025, subd. 2 (2014) (defining the
offense of f ifth-degree controlled-substance crime); Minn. Stat. § 152.02, subd. 3 ( Supp.
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2015) (listing hydrocodone as a controlled substance) . Oliver stipulated that he was
ineligible to possess a firearm and ammu nition. But Oliver testified that he did not know
the gun and ammunition were in the vehicle and that he had permission to hold I.H.’s
prescribed hydrocodone.
The testimony regarding the 911 call indicated that “Jeff Smith” was planning to
rob I.H. and that the robbery might involve a gun. Oliver argues that “the inadmissible tip
buttressed the State’s theory that [Oliver] took the items (gun, ammunition, and pills) from
[I.H.’s] lock box without [I.H .’s] consent.” Oliver further argues that “[i]f the jury was
looking for some concrete fact to attempt to show that . . . [ he] was not truthful, the jury
well might have utilized [the] 911 statement or [it] might have used it to fill in the gaps in
the trial record.”
Our analysis is influenced by the jury’s acquittal on the firearm-possession charge.
An acquittal on one count and convictions on others indicates that the jury was not
improperly influenced. Cf. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating
principle in context of prosecutorial-misconduct claim). Unlike the hydrocodone pills in
Oliver’s pants pocket and the box of ammunition on the seat next to him, the gun was
concealed between the front passenger seat and a spare tire. Although the 911 call provided
a basis to conclude that Oliver was nonetheless aware of the gun, Oliver’s attorney
established reason to doubt the credibility of the 911 caller during Depu ty Miller’s cross-
examination. And t he jury’s acquittal on the firearm -possession charge suggests that the
jury did not rely on the 911 call in reaching its verdict. If the jury had relied on the 911
call, it likely would have found Oliver guilty of the firearm-possession charge. In sum,
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Oliver has not met his heavy burden to show that the admission of testimony regarding the
911 call affected his substantial rights.
Even if the first three prongs of the plain-error test were met, we would not address
the error because it is not necessary to ensure fairness and the integrity of the proceedings.
The supreme court has explained that an error does not affect the fairness and integrity of
judicial proceedings if a reversal “would allow a party to choose to try a case on one theory
while holding a second theory in reserve for a possible appeal ,” noting that such action
“would adversely impact the integrity of the judicial proceedings .” Frazier v. Burlington
N. Santa Fe Corp., 811 N.W.2d 618, 626-28 (Minn. 2012) (applying the Griller criminal
plain-error test in a civil case).
Instead of objecting to the testimony regarding the 911 call and arguing that the jury
should not hear the content of the call, Oliver used the 911 call to show that the state’s case
was not trustworthy. Oliver’s cross-examination of Deputy Miller established tha t a
portion of the caller’s statement —and, by impli cation, the state’s case —was unreliable.
Given Oliver’s choice to use the 911 call in his defense, g ranting him a new trial and
allowing him to retry the case on a theory that does not include the content of the 911 call
would compromise the integrity of the proceedings.
In conclusion, Oliver is not entitled to relief under the plain-error standard.
Affirmed.