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This opinion will be unpublished and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
A17-0018

State of Minnesota,
Respondent,

vs.

Frank Lucellerson Tubbs,
Appellant.

Filed November 27, 2017
Affirmed
Florey, Judge

Steele County District Court
File No. 74-CR-16-40

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

Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Pr esiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his conviction of po ssession of a firearm by an ineligible
person, arguing that the district court erred when it admitted testimony of an officer about
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a witness’s out-of-court statement and when it failed to exclude testimony referencing
appellant’s criminal history. Appellant makes additional pro se arguments. We affirm.
FACTS
Appellant Frank Tubbs was charged with possession of a firearm by a prohibited
person after S.D. reported that her gun had been stolen. S.D. originally told the police that
the gun was stolen by K.L., but later told the police that she threw the gun in a car occupied
by appellant and K.L. The case proceeded to a jury trial.
At trial, S.D. testified that appellant went with her to purchase the gun and provided
her with the money to purchase it. Several days later, appellant asked S.D. for the gun,
saying that it belonged to him because he had paid for it. S.D. testified at trial that she did
not give appellant the gun, admitting that she lied to the police when she told them that she
had thrown it into the car.
K.L., the mother of appella nt’s children, testified th at S.D. had a gun in her
possession while she was in the car with appellant and K.L. She testified that she told S.D.,
“I’m a felon and my kids’ dad is a felon too, so why would you have a gun with you.” K.L.
testified that S.D. threw the gun on the driver’s seat of the car. K.L. testified that she yelled
at S.D. to take the gun, “because we don’t want to get caught with it, knowing that we have
felonies in our background.” K.L. testified that she sat on the gun. She testified that
appellant attempted to get the gun from her, but that he was unable to touch it. She testified
that she left the car with the gun.
An officer testified that he received a report of an assault from H.S., who “witnessed
an assault on [K.L.].” The officer testified that it was alleged that a firearm was used during
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the assault. H.S. testified at trial that she saw appellant in the car with the gun in his hand,
waiving it around and fighting w ith K.L. H.S. testified that K.L. took the gun from
appellant and left the car.
Appellant stipulated to his prior convictio ns for crimes of violence. He did not
testify. The jury returned a guilty verdict to the sole ch arge of ineligible person in
possession of a firearm.
This appeal followed.
D E C I S I O N
I. Appellant has not established that his su bstantial rights were affected by the
admission of out-of-court statements made to a police officer.

Appellant argues that the district court erred by admitting the officer’s testimony
regarding H.S.’s report of an assault. He argues that the admission of any testimony
concerning H.S.’s report of an assault affected his substantial rights because H.S. was the
only witness to testify about seeing appellant with the gun and the admission of the report
improperly bolstered her credibility. Appellan t did not object to the officer’s particular
testimony that he challenges on appeal.
“Failure to object to the admission of ev idence generally constitutes [forfeiture] of
the right to appeal on that basis.” State v. Vick, 632 N.W.2d 676, 684 (Minn. 2001). In the
absence of an objection, we review the admission of evidence for plain error. Minn. R.
Crim. P. 31.02. “The plain error standard requires that the defendant show: (1) error;
(2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d
681, 686 (Minn. 2002). If the three prongs of the standard are satisfied, we will correct the
4
error “if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
Appellant argues that the officer’s testim ony about H.S.’s report was inadmissible
hearsay. He particularly challenges the ad mission of the officer’s testimony that “[H.S.]
witnessed an assault on [K.L.]” and “[i]t was alleged it was a firearm that was used in the
assault.” The state argues that the officer’s testimony about H.S.’s report was not offered
for the truth of the matter asserted; rather, it was offered to provide context for the officer’s
subsequent investigation.
“‘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). An out-of-court statement is not admissible as substantive evidence unless
it is nonhearsay or falls within an exception to the hearsay rule. State v. Greenleaf, 591
N.W.2d 488, 502 (Minn. 1999). If a statement is offered for some other purpose, it is not
hearsay. Minn. R. Evid. 801 1989 comm. cmt. For example, the supreme court has stated
that “evidence that an arresting or investig ating officer received a tip for purposes of
explaining why the polic e conducted surveillance is not hearsay.” State v. Litzau , 650
N.W.2d 177, 182 (Minn. 2002).
However, the supreme court has also held th at the substance of an informant’s tip
to law enforcement should not be admitted to provide contex t to an investigation where
there is a risk that the conten ts of the tip would be consider ed by the jury as substantive
evidence of the defendant’s guilt rather than as an explanation of the officer’s conduct. Id.
(“[A] police officer testifying in a criminal case may not, under the guise of explaining
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how the investigation focused on defendant, relate hearsay statements of others.”
(quotations omitted)); State v. Williams , 525 N.W.2d 538, 545 (Minn. 1994) (noting that
“it is unlikely that the jury did not consid er the evidence as su bstantive evidence of
defendant’s guilt” despite the prosecutor’s explanation that it was presented only to provide
context to the officer’s actions). In those ca ses, the out-of-court st atements should be
excluded by the district court under Minn. R. Evid. 403. State v. Hardy, 354 N.W.2d 21,
24-25 (Minn. 1984) (indicating that “even a limited elicitation, for nonhearsay purposes,
of general testimony that a tip had been received . . . would have been unjustified in this
case because the potential of the evidence being used for an improper purpose outweighed
its very limited probative value”); State v. Ford , 322 N.W.2d 611, 615 (Minn. 1982)
(indicating that an informant’s tip is not hearsay when it is offered to provide context to an
investigation, but that it should nevertheless be excluded under Minn. R. Evid. 403 when
there is a risk it would be used as substantive evidence of guilt).
Here, the officer’s testimony about the report was clearly offered to provide context
to his ensuing investigation. H.S.’s report of an assault and a gun provided context to the
officer’s testimony about his interviews of witn esses and search for th e gun. The officer
did not, at any point, refer to appellant during his testimony or indicate that appellant was
involved in the reported assault. Unlike the cases referenced above, where the out-of-court
statements were offered under the guise of e xplaining why the investigations focused on
the defendants, here, they were offered solely to explain th e officer’s actions concerning
his investigation into H.S.’s report. Th e officer’s testimony ab out H.S.’s report was
6
properly admitted as nonhearsay context evidence. The district court did not plainly err by
admitting the testimony.1
But even if appellant could establish that the district court plainly erred in admitting
the officer’s testimony, he cannot establish that the error affected his substantial rights. In
evaluating whether an error affected substantial rights, we must consider whether there is
a “reasonable likelihood that the error had a significant effect on the jury’s verdict.” State
v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010). Appellant “bears the heavy burden of
proving prejudice.” State v. Wenthe , 865 N.W.2d 293, 299 (Minn. 2015) (quotation
omitted). In determining whether erroneously admitted evidence affected the verdict, we
consider “the manner in wh ich the evidence was presen ted, whether it was highly
persuasive, whether it was used in closing ar gument, and whether the defense effectively
countered it.” Townsend v. State , 646 N.W.2d 218, 223 (Minn. 2002); see also State v.
Matthews, 800 N.W.2d 629, 634 (Minn. 2011) (“The court’s analysis under the third prong
of the plain error test is the equivalent of a harmless error analysis.”).

1 The state also argues that the evidence was admissible under Minn. R. Evid. 801(d)(1)(B)
as a prior consistent statement because appe llant’s counsel generally challenged H.S.’s
credibility during the opening statement to the jury. Before a prior out-of-court statement
may be admitted under Minn. R. Evid. 801(d )(1)(B), the witness’s cr edibility must have
been challenged. State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997); State v. Bakken, 604
N.W.2d 106, 109 (M inn. App. 2000), review denied (Minn. Feb. 24, 2000). The record
does not support the state’s asse rtion that H.S.’s credibility had been challenged prior to
her testimony. During the opening statement, counsel for appellant specifically challenged
the credibility of S.D. and K.L. Counsel for appellant did not challenge H.S.’s credibility
prior to her testimony. Therefore, H.S.’s report to the officer was inadmissible under Minn.
R. Evid. 801(d)(1)(B) as a prior consistent statement.
7
The manner in which the stat e presented the report of an assault did not create a
reasonable likelihood that the report substantially affected the verdict. As discussed above,
the testimony about H.S.’s report provided context to the officer’s subsequent
investigation, but did not directly implicate appellant . Moreover, the testimony was
overshadowed by the direct evidence of appella nt’s guilt. H.S. testified that she saw
appellant holding the gun in his hand. Other witnesses testified that the gun was in the car
and that appellant had expressed an ownership interest in the gun because he had supplied
the purchase money. Moreover, the state did not mention the challenged testimony during
closing arguments, only indicating that H.S. “called the police and reported what she had
observed.” Appellant had the opportunity to counter the testimony concerning H.S.’s
report, and did so, indicating that H.S. was not credible because she had an ulterior motive
for testifying against appellant and because she had consumed alcohol during the night of
the incident. Appellant has not established his burden of demonstra ting that there is a
reasonable likelihood that the statements significantly affected the verdict.
II. Appellant was not prejudiced by K.L.’s testimony referencing appellant’s
criminal history.

Appellant argues that the district cour t plainly erred by not excluding K.L.’s
testimony referencing appellant ’s felonious background when appellant had agreed to
stipulate to his prior crimes.
2 Appellant did not object when K.L. referred to his criminal

2 As an initial matter, the st ate argues that “appellant has no right to challenge [K.L.’s]
testimony on appeal” because the language of the stipulation had not been finalized at the
time of her testimony. The state cites State v. Collins , 580 N.W.2d 36, 42 (Minn. App.
1998), review denied (Minn. July 16, 1998), to support its position that appellant cannot
challenge the admission of re ferences to his prior crimes. We disagree. In Collins, the
8
past. We therefore review the admission of the evidence under the plain-error standard of
review. State v. Griller , 583 N.W.2d 736, 740 (Minn. 19 98). Appellant must establish
plain error that affected his substantial rights. Strommen, 648 N.W.2d at 686.
References to a defendant’s prior crim es are inadmissible except in certain
delineated circumstances. Minn. R. Evid. 404(b); State v. Hall , 764 N.W.2d 837, 842
(Minn. 2009). A prosecutor is responsible for pr eparing the state’s witnesses so that they
“will not blurt out anything that might be inadmissible and prejudicial.” State v. Carlson,
264 N.W.2d 639, 641 (Minn. 19 78). “[I]f the prosecutor inte ntionally elicits other-crime
evidence knowing that it is inadmissible, we will reverse more readily.” State v. Haglund,
267 N.W.2d 503, 506 (Minn. 1978). But when the evidence is inadvertently elicited by the
prosecutor, reversal is not warranted unless the evidence was prejudicial. Id.
In State v. Davidson , the supreme court stated that a defendant in an ineligible-
person-in-possession-of-a-firearm case “should be permitted to remove the issue of
whether he is a convicted felon by stipulating to that fact. In the vast majority of such cases
the potential of the evidence fo r unfair prejudice clearly outweighs its probative value.”
351 N.W.2d 8, 11 (Minn. 1984). In Davidson, the district court denied the defendant’s
request for a stipulation to his prior convicti on and instructed the jury that the defendant
had previously been convicted of arson. Id. at 9. The supreme court held that the district
court erred in denying the defendant’s request without weighing the potential for unfair

defendant failed to make clear that he intended the fact of his stipulation to a prior crime
to be kept from the jury. 580 N.W.2d at 42. Here, it is clear from discussions on the record
that appellant stipulated to the crimes in order to keep the fact of his convictions from the
jury.
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prejudice against the evidence’s probative value, but that the error “was not so prejudicial
as to require reversal.” Id. at 12.
The state concedes that it was plain error for appellant’s felon status to be revealed
to the jury in light of Davidson. The state argues that the e rror did not affect appellant’s
substantial rights because there was strong ev idence of appellant’s guilt and because the
prosecutor did not refer to appellant’s felon status—or K.L.’s testimony to that effect—
during closing arguments. We agree that the two references to appellant’s felon status did
not affect appellant’s s ubstantial rights. In Haglund, we concluded that an officer’s
reference to the defendant’s criminal past wa s not prejudicial when “the reference was of
a passing nature,” the import of the reference may have been missed by the jury, and the
evidence of guilt was overwhelming. 267 N.W.2d at 506. Here, there was strong evidence
of appellant’s guilt through eyewitness testimony. We conclude that there is no reasonable
possibility that the two brief and passing references to appellant’s felon status significantly
affected the verdict.
III. Appellant’s pro se arguments do not establish reversible error.
Appellant raises several arguments in his pro se supplemental brief to this court. He
alleges that he was prejudiced by (1) the officer’s testimony regarding H.S.’s report of an
assault on K.L.; (2) the references to appellant ’s prior felonies; (3) the state’s objected-to
argument during summation concerning K.L. being pistol-whipped; and (4) K.L.’s
objected-to testimony that H.S. kept yelling, “I know what [appellant] is capable of doing.”
The former two issues were raised by counsel in appellant’s principal brief and discussed
above. Because appellant provides no additi onal legal argument or authority regarding
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those issues, we do not further address them. Appellant objected to the latter two issues
during the trial, and the district court instruct ed the jury to disregar d the statements. We
presume the jury followed the district court’s instructions to disregard the statements and
therefore find no reversible error. See State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002)
(noting that we presume a jury follows a district court’s instructions).
Appellant also argues that the district court judge should have recused himself from
the trial because he was presiding over a separate civil suit involving appellant. Appellant
did not make this argument before the district court, nor does he offer argument or citation
to legal authority in support of his allegation. We genera lly do not consider matters not
argued to and considered by the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996). Nor do we consider allegations outside of the record on appeal. State v. Meldrum,
724 N.W.2d 15, 23 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007); see Minn. R.
Crim. P. 28.02, subd. 8 (stating that “[t]he record on appeal consists of the documents filed
in the district court, the offered exhibits, and the transcript of the proceeding, if any”). We
therefore do not consider whether the district court judge should have recused himself.
Appellant also argues that the state wa s unable to estab lish his guilt beyond a
reasonable doubt because it lacked physical evidence and credible testimony. We construe
appellant’s argument as a challenge to the sufficiency of the evidence supporting his
conviction.
When considering a claim of insufficient evidence, this court carefully analyzes the
record to determine whether the evidence, viewed in the light most favorable to the
conviction, was sufficient to allow the jury to reach its verdict. State v. Webb, 440 N.W.2d
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426, 430 (Minn. 1989). We assume that the jury was persuaded by the evidence supporting
the conviction, especially “where resolution of the case depends on conflicting testimony,
because weighing the credibility of witnesses is the exclusive function of the jury.” State
v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). We will not disturb the verdict if the jury,
acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, co uld reasonably conclu de the defendant was guilty of the
charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
When the evidence is viewed in the light most favorable to the conviction, it is
sufficient to sustain the verdict. H.S. testif ied that she saw appellant holding the gun and
waiving it around. “[A] convi ction can rest on the uncorro borated testimony of a single
credible witness.” State v. Foreman , 680 N.W.2d 536, 539 (Minn. 2004) (quotation
omitted). The factfinder is the exclusive judge of witness credibility and the weight to be
given a witness’s testimony. State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006). Appellant
stipulated to his prior crimes of violence. The jury could reasonably conclude that
appellant was guilty of being an ineligible person in possession of the gun.
Affirmed.