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This opinion will be unpublished and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
A17-0624

State of Minnesota,
Respondent,

vs.

Justin Carlos Tolbert,
Appellant.

Filed March 19, 2018
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-16-5708

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Justin Carlos To lbert was convicted of seco nd-degree assault, felony
domestic assault, and threats of violence aris ing from an argument with V.S., his former
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wife, in her home. Appellant challenges th e admission of two hearsay statements and
relationship evidence and also argues the pr osecutor committed prosecutorial error.
Because the district court did not err or abuse its discretion, we affirm.
FACTS
Appellant and V.S. have known each other for over 23 years and have two children
together. In August 2016, ap pellant and V.S. had an ar gument that began during a
recreational trip to a lake and continued when they returned to V.S .’s residence. Their
sons, J. and his brother, were present or in the next room for most of the argument. The
argument became heated, and, at one point, appellant had a gu n in his hand. J. and his
brother called the police and briefly spoke with an operator but told the operator that they
did not need help. Appellant left the residen ce, and V.S. left with her mother to go to a
bar. Appellant returned later with the gun an d asked J. where his mother was. Appellant
left again, and J. called the police. V.S. returned home while J. was on the phone with the
police and briefly spoke to the operator. While on their way to V.S.’s residence, police
apprehended appellant. V.S. and J. both spoke with officers at the scene about the events
of the evening. Appellant was charged with second-degree assault, domestic violence, and
threats of violence. V.S. and J. both testified at trial. Portions of V.S.’s and J.’s statements
to the 911 operator were played in open court, and the arresting officers testified about
V.S.’s and J.’s statements the night of the offense. The jury convicted appellant of all three
counts.
This appeal followed.
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D E C I S I O N
I. The district court did not err by admitting V.S.’s hearsay statements under the
residual exception.

Appellant argues that V.S.’s statements to police are not reliable and thus
inadmissible under the residual exception to the hearsay rule because she made the
statements while intoxicated. Appellant argues this was not a harmless error, and that the
state cannot prove beyond a reasonable doubt th at the statement did no t affect the jury’s
verdict. We review the district court’s evidentiary rulings for an abuse of discretion. State
v. Flores, 595 N.W.2d 860, 865 (Minn. 1999) (reviewing a hearsay ruling). “The burden
is on the [appellant] to show that the district court abused its discretion and that [appellant]
was prejudiced thereby.” State v. Ahmed, 782 N.W.2d 253, 259 (Minn. App. 2010).
A hearsay statement that does not fall unde r an explicit hearsay exception may be
admitted under the residual exception when:
(A) the statement is offered as evidence of a material fact; (B)
the statement is more probativ e on the point for which it is
offered than any other eviden ce which the proponent can
procure through reasonable e fforts; and (C) the general
purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.

Minn. R. Evid. 807. When determining the reliability of hearsay statements under the
residual exception, we consider the totality of the circumstances, “looking to all relevant
factors bearing on trustworthiness to determ ine whether the extrajudicial statement has
circumstantial guarantees of trustworthine ss equivalent to other hearsay exceptions.”
Ahmed, 782 N.W.2d at 260 (quotations and citations omitted).
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At trial, respondent argued that V.S.’s statements to police were non-hearsay
because they were consistent with V.S.’s in-court testimony.1 To the extent the statements
might be inconsistent, respon dent argued the statements s hould be admissible under the
residual exception because they were made against her interest in her relationship with the
defendant, that they were ma de at a time and under circum stances that had substantial
guarantees of their trustworthiness, or that they were excited utterances. The court agreed
that V.S.’s in-court testimony was consistent to the extent she testified that appellant
threatened her with a gun and that they argued. The district court determined her testimony
seemed largely consistent with her statements to police, and that any inconsistent testimony
would be admissible under the rule 807 resi dual exception as being reliable under the
circumstances. Appellant argued that V.S.’s statements were not reliable under an 807
analysis because she was heav ily intoxicated. The dist rict court determined her
intoxication went to the weight of the evidence and not its admissibility.
On appeal, appellant does not specify whic h of V.S.’s statements to police were
inconsistent with her sworn testimony and thus admitted u nder the residual exception.
Appellant has not identified which statements he is asking this court to evaluate under the
residual exception, and it is appellant’s responsib ility on appeal to clarify what issues the
court should consider. Independently, we identify two instances where V.S.’s testimony
might be considered inconsistent with her statements to police. V.S. testified that appellant
“pulled a gun on her,” but told police th at appellant held a gun to her head. V.S. also

1 Minn. R. Evid. 801(d)(1)(B) provides that consistent out-of-court statements by a
testifying declarant are not hearsay.
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testified she was not afraid of appellant, but, in her statements to police, V.S. said she was
sometimes afraid of appellant and thought him capable of killing her.
Even in this light, admission of V.S.’s statements to police was not an abuse of
discretion. V.S.’s statements to the police were offered to show that appellant put a gun to
her head and threatened to shoot her. Her statements to the police are more probative than
her trial testimony because there was evidence that, at trial, she minimized appellant’s
conduct out of a sense of loyalty to their rela tionship. Furthermore, her statements made
to police were more probative because they were made against her relationship interest
with appellant. There is no evidence controverting V.S.’s statements to the police, as they
are largely consistent with V.S.’s testimony. The statements to the police are persuasive
and serve to elaborate on V.S.’s unwilling and hostile testimony at trial. The district court
did not abuse its discretion when it admitted V.S.’s statements under the residual exception.
Appellant cites State v. Greenleaf, 591 N.W.2d 488, 503 (Minn. 1999), and State v.
Schilling, 474 N.W.2d 203, 205 (Minn. App. 1991), to support his argument that ex parte
statements made during police questioning are traditionally considered untrustworthy. But
Greenleaf and Schilling involved declarants who did not testify at trial, so those cases are
not persuasive here, since V.S. testified and was available for cross-examination.
Appellant argues that V.S.’s statements are neither reliable nor trustworthy because
she was intoxicated. The district court stated that an intoxicated person’s statements are
no less reliable than a sober person’s, and th at V.S.’s intoxication may influence what
weight a jury gives to that evidence. A ppellant does not cite any authority for the
proposition that statements made by an intoxicated person are any less reliable than those
6
made by a person who is not in toxicated. Appellant simply argues that V.S. was “semi-
coherent,” “rambling,” and mo tivated by her anger at res pondent when she was drunk.
There is nothing in the record to suggest that V.S. spoke untruthfully because of her
intoxication.
V.S.’s statements to poli ce were largely consistent with her testimony, and any
inconsistent statements were re liable given the circumstances. The district court did not
abuse its discretion by admitting V.S.’s statements to the police.
II. The district court did not err by not sua sponte striking Officer Starkey’s
testimony about J.’s prior consistent statement.

Appellant did not object to Officer Star key’s testimony about his conversation with
J., the son of appellant and V.S. This court evaluates uno bjected-to error under a plain-
error standard. State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998). Plain error occurs
where there is: (1) error; (2) that is plain; and (3) the error affects a person’s substantial
rights. Id. A person’s substantial rights are affected if the error was prejudicial and affected
the outcome of the case. Id. If the three-pronged test is met, this court must determine
whether it should address the is sue to ensure the fairness a nd integrity of the judicial
proceedings. See State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006).
Appellant contends that Officer Starkey’s testimony about J.’s statement to him was
not consistent with J.’s testimony at trial, and that its admission was plain error. Officer
Starkey testified that J. told him that appella nt and V.S. were in an argument earlier that
night. J. said that appellant came to the house later that night with a loaded gun and asked
where V.S. was. Appellant said “text [V.S.], and tell her to come home, or else she’ll find
7
out what will happen.” J. said that appellant spun the revolver’s ammunition cylinder and
left. J. was worried for his mother’s safety.
At trial, J. did not testify that his father made threats against his mother. J. testified
that he heard his mother and appellant fighti ng, and that his mother signaled them to call
the police. J. testified that his father returned after the earlier argument and that he could
not remember if he was carrying a gun. J. testified that he believed he would have told the
911 operator if he had seen his father carrying a gun, and, as heard on the 911 call played
for the jury, J. told the operator that his father had returned to the house with a gun and was
looking for his mom. J. also told the 911 operator that a ppellant had been at the house
earlier with his mom and had a gun.
The district court did not err by failing to sua sponte strike Officer Starkey’s
testimony as inconsistent with J.’s testimony. First, even if appellant had objected, J.’s
statements to Officer Starkey may have been otherwise admitte d as excited utterances or
as consistent non-hearsay statements. See State v. Manthey, 711 N.W.2d 498, 504 (Minn.
2006) (noting that unobjected-to hearsay is pa rticularly difficult to deem inadmissible on
plain-error review due to the many hearsay exceptions and the absence of a clear ruling on
the issue at trial); see also Minn. R. Evid. 803(2) (excited utterance) (“A statement relating
to a startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.”); Minn. R. Evid. 801(d)(1) (“A statement is not hearsay
if . . . [t]he declarant testifies at the trial . . . and is subject to cross-examination . . . and . . .
[the statement is] consistent with the declaran t’s testimony and helpful to the trier of fact
in evaluating the declarant’s cr edibility as a witness . . . .” Second, Officer Starkey’s
8
testimony did not directly conflict with J.’s testimony, it merely offered more detail. J.’s
testimony was very sparse and had few details about the events. The two pieces of evidence
offered by Officer Starkey that elaborated on J.’s testimony were appellant’s threat that
“she’ll find out what will happen” if she comes home and appellant spinning the revolver’s
cylinder in front of J. Also, J. testified mu ltiple times that he could not remember certain
details and that he told the 911 operator and police officers what happened as best he could
remember that night. Officer Starkey’s testimony and J.’s testimony were consistent. And
finally, appellant not objecting to Officer Starkey’s testimony may have been a trial
strategy. See State v. Washington, 693 N.W.2d 195, 205 (Minn. 2005) (“We do not agree
that the district court must, or even shoul d, interfere with the trial strategy of the
defendant.”). The district court did not e rr by declining to sua sponte strike Officer
Starkey’s testimony.
III. Appellant’s argument regarding relat ionship evidence was not properly
preserved for appeal.

Appellant argues the district court abused its discretion by admitting evidence of
appellant’s domestic abuse with V.S. as relationship evidence. Appellant claims the
evidence was overly prejudicial and should have been excluded.
A party must make a specific objection on the record to preserve an issue for appeal.
See State v. Mosley , 853 N.W.2d 789, 797 n.2 (Minn. 2014); State v. Blom, 682 N.W.2d
578, 614 (Minn. 2004). Before trial, the pr osecution disclosed that it sought to offer
relationship evidence to show the nature of appellant and V.S.’s relationship. At a pretrial
hearing, appellant did not object to the incl usion of this evidence and only expressed
9
reservations as to how the ev idence would be included. Appellant did not argue that the
evidence was overly prejudicial. The distri ct court ultimately ad mitted the evidence.
Because appellant failed to raise an objection that the evidence was overly prejudicial, he
has forfeited that issue on appeal. See Mosley, 853 N.W.2d at 797 n.2 (finding that an
evidentiary issue was not preserved for appeal where the defendant made an objection on
due-process grounds, but failed to state the specific ground of objection under an
evidentiary rule).
IV. The prosecutor’s closing argument was not prosecutorial error.
Appellant argues the prosecutor committ ed prosecutorial misconduct when she
vouched for V.S.’s credibility in her closing argument, argued facts not in evidence, and
inflamed the jury. Appellant did not object to the claimed prosecutorial error at trial.2
Failure to object to a prosecu tor’s statements at trial is generally a forfeiture of that
issue on appeal. See State v. Darris, 648 N.W.2d 232, 241 (Min n. 2002). However, this
court may address the issue if there is plain error. Montanaro v. State, 802 N.W.2d 726,
732 (Minn. 2011). On review, the appellant must show that there was error and that it was
plain. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006 ). If an appellant shows plain
error, the burden then shifts to the state to show that the error did not affect the appellant’s
substantial rights. Id. An error affects appellant’s subs tantial rights if there is prejudice

2 Appellant uses the term prosecutorial mi sconduct. Prosecutorial misconduct “implies a
deliberate violation of a rule of practice,” while prosecutorial error “suggests merely a
mistake of some sort, a misstep of a type a ll trial lawyers make from time to time.” State
v. Leutschaft, 759 N.W.2d 414, 41 8 (Minn. App. 2009), review denied (Minn. Mar. 17,
2009). Because there is no evid ence that the prosecutor inten tionally violated a rule of
practice, we use the term prosecutorial error.
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and the error affected the outcome of the case. State v. Barrientos-Quintana, 787 N.W.2d
603, 611 (Minn. 2010). An error is prejudicial if there is a reasona ble likelihood that the
error had a significant effect on the verdict. Id. If the three prongs are met, the court may
order a new trial only if doing so is necessary to uphold the fairness and integrity of the
judicial process. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).
A prosecutor cannot make arguments that ar e not supported by evidence or that are
designed to inflame the passions and prejudices of the jury. State v. Mayhorn, 720 N.W.2d
776, 786-87 (Minn. 2006). During a closi ng argument, a prosecutor may argue “all
reasonable inferences from evidence in the record,” but must not “misstate the evidence or
mislead the jury as to the inferences it may draw.” State v Salitros, 499 N.W.2d 815, 817
(Minn. 1993). A prosecutor must not express a personal belief as to the truth or falsity of
any testimony or evidence. Id.
In her closing argument, the prosecutor de scribed what it must have been like to be
in a 23-year relationship with appellant. Sh e referenced V.S.’s experience of physical
violence and the instability of the relationship. The prosecutor played the 911 tape to show
the jury how V.S. sounded the day she was allegedly assaulted by appellant. Following
the 911 recording, the prosecutor said: “She doesn’t really mean[] she’s not concerned for
her safety. She means, she’s come to the conclusion that there is nothing she can do about
it. So that’s what she says to the 911 oper ator.” The prosecutor addressed V.S.’s casual
statements to the police, where she said that she was not afraid of appellant. The prosecutor
framed those statements as bei ng the statements of a woman who is resigned to her fate.
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The prosecutor explained one way of interpreting V.S.’s statements, and did not argue facts
not in evidence.
Next, appellant argues the prosecutor infl amed the jury when she argued that V.S.
was telling the truth because “fear trumps loyalty.” But the prosecutor did not inflame the
passions of the jury, the prosecutor was de scribing how the jury might credit V.S.’s
statements from the night of the incident more favorably than her comparatively restrained
testimony at trial. The prosecutor was describing to the jury how they might interpret the
trial testimony as being tempered by loyalty to a loved one, and how the statements made
to the police the night of the incident might be motivated by a more trustworthy impulse—
fear. The prosecutor never personally vouche d for V.S.’s credibility . The prosecutor
never used an “I” statement or used her position as an agen t of the government to vouch
for V.S.’s credibility, and the prosecutor did not inflame the jury.
The prosecutor’s closi ng argument did not constitute prosecutorial error.
Affirmed.