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This opinion will be unpublished and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
A17-0115

State of Minnesota,
Respondent,

vs.

Orlando Maurice Johnson,
Appellant.

Filed November 6, 2017
Affirmed
Florey, Judge

Benton County District Court
File No. 05-CR-15-2197

Lori Swanson, State Attorney General, Mich ael Everson, Assistant Attorney General,
St. Paul, Minnesota; and

Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; R odenberg, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his convictions of fi rst-degree aggravated robbery and first-
degree burglary. He argues that the district court plainly erred in permitting an officer to
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testify about out-of-court statem ents made by a witness because the statements were not
consistent with the witness’s trial testimony. We affirm.
FACTS
Appellant Orlando Johnson was charged with first-degree burglary and two counts
of first-degree aggravated robbery after D.S. reported to police that appellant entered his
apartment, hit him on the head, placed a gun in his mouth, and took his property. The case
proceeded to trial.
D.S. testified at trial that he was “punch ed in the face and robbed” by appellant in
his apartment on November 13, 2015. D.S. testified that he smoked cocaine and
methamphetamine in his apartment with two women, one of wh om is appellant’s cousin.
D.S. testified that when he went to lock his door, appellant opene d the door and “took a
swing” at him, striking him on the side of his cheek. D.S. testified that he backed away
and felt appellant place a metal object in his mouth, which he believed to be a gun because
of the way it felt in his mouth. He testified that he was “pretty certain” it was a gun, and
he did not resist because he did not know if appellant was going to pull the trigger. After
appellant left, D.S. called the police.
An officer was dispatched to D.S.’s apartment. He te stified at trial regarding
statements that D.S. made to him at that time. He testified that D.S. told him that appellant
entered his apartment, struck him on the head, and placed a gun in his mouth. The officer
testified that D.S. told him that it was a gun because of “the cold metal touch on his mouth
or in his mouth.” Appellant did not object to the officer’s testimony about D.S.’s out-of-
court statements.
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The jury returned a guilty verdict on all counts. This appeal followed.
D E C I S I O N
Because appellant did not object to the officer’s testimony regarding D.S.’s out-of-
court statements, we review for plain error. See Minn. R. Crim. P. 31.02 (permitting
appellate review of a plain error affecting a defendant’s substantial rights even if the error
was not brought to the trial court’s attention); State v. Beaulieu , 859 N.W.2d 275, 279
(Minn. 2015) (providing that the limited power of appellate courts to review unobjected-to
error “is known as the plain-error doctrine ” (quotation omitted)). Under the plain-error
standard, appellant must establish (1) an error, (2) that is plain, and (3) that affects his
substantial rights. Id. If the three prongs of the plain-error standard are met, we must then
determine whether it is necessary to address th e error in order “to ensure fairness and the
integrity of the judicial proceedings.” State v. Rossberg , 851 N.W.2d 609, 618 (Minn.
2014) (quotation omitted).
A declarant’s out-of-court statement is admissible at trial as substantive evidence if
(1) the declarant testifies at trial; (2) the declarant is subject to cross-examination
concerning the statement; (3) th e statement is consistent w ith the declarant’s testimony;
and (4) the statement is helpfu l to the jury in evaluating th e declarant’s credibility as a
witness. Minn. R. Evid. 801(d)(1)(B); State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997).
The purpose of permitting prior statements under rule 801(d)(1)(B) is to allow a party “to
enhance the credibility of a witness.” State v. Farrah, 735 N.W.2d 336, 344 (Minn. 2007)
(quotation omitted).
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Appellant argues that D.S.’s out-of-court statements to the officer should have been
excluded because they were not consistent w ith D.S.’s trial testimony. Appellant argues
that the out-of-court statements and trial testimony were “materially inconsistent” because
they differed on whether appellant was “struc k in the head” or “hit on the cheek with a
closed fist,” and they differed on the level of certainty D.S. expressed concerning whether
the metal object placed in his mouth was a gun.
“The trial testimony and the prior statement need not be identical to be consistent,
and admission of a [prior] statement that is reasonably consistent with the trial testimony
is not reversible error.” State v. Zulu, 706 N.W.2d 919, 924 (Minn. App. 2005) (citation
and quotation omitted); see State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000) (“The
trial testimony and the prior statement need not be verbatim.”), review denied (Minn. Feb.
24, 2000). Out-of-court statements that are not consistent with the declarant’s trial
testimony, or which contain as sertions about events that were not described by the
declarant during his trial testimony, are not helpful to the jury in evaluating the declarant’s
credibility and are inadmissible under Minn. R. Evid. 801(d)(1)(B). Farrah, 735 N.W.2d
at 344-45 (indicating that the rule is not a “means to prove new points not covered” in the
trial testimony of the witness ). The out-of-court statements are inadmissible under rule
801(d)(1)(B) if there are “inconsistencies [that] directly affect the elements of the criminal
charge.” Bakken, 604 N.W.2d at 110.
Appellant has not met his burden of estab lishing error. D.S. testified that he
believed appellant had a gun because of the way it felt in his m outh. The officer testified
that D.S. told him the object wa s a gun because of the way it fe lt in his mouth. D.S. also
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testified that he was struck on the cheek. Th e officer testified that D.S. told him he was
struck on the head. D.S.’s stat ements to the officer are reas onably consistent with D.S.’s
trial testimony and aided the jury in eval uating D.S.’s credibility . The out-of-court
statements did not directly affe ct the elements of the crimin al charges. The statements
were properly admitted by the district court under Minn. R. Evid. 801(d)(1)(B). Because
appellant has not established error, we need not address the remaining prongs of the plain-
error standard. See State v. Campbell, 861 N.W.2d 95, 101 (Minn. 2015) (noting that the
failure to satisfy one of the requirements under the plain-error standard “dooms the
appellant’s claim”).
Affirmed.