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This opinion will be unpublished and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
A17-1449

State of Minnesota,
Respondent,

vs.

Michael Darnell Hampton,
Appellant.

Filed August 27, 2018
Affirmed in part and remanded
Reilly, Judge

St. Louis County District Court
File No. 69DU-CR-17-137

Lori Swanson, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Michael Darnell Hampton challe nges his conviction of domestic assault
by strangulation, arguing that he is entitled to a new trial because the district court plainly

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erred in admitting unnoticed expert-witne ss testimony and prejudicial, inadmissible
hearsay testimony. In the alternative, appellant argues that his sentence should be reversed
and remanded because the district court incorrectly calculated his criminal-history score.
We affirm appellant’s conviction but remand for resentencing.
FACTS
In January 2017, police responded to a domestic assault call involving appellant and
A.P. The state later charged appellant with one count of felony domestic assault by
strangulation and misdemeanor domestic assault. At trial, A.P., the responding officer, and
appellant testified. The district court admitted into evidence recordings from the officer’s
body camera and photographs the officer took. Appellant’s counsel stated on the record
that he did not object to the introduction of th e exhibits, and in closing, argued that the
exhibits supported appellant’s version of events. The jury found appellant guilty of felony
domestic assault by strangulation but not guilty of misdemeanor assault. The district court
convicted appellant on the felony count, and sentenced appellant to serve 36 months in
prison, stayed for four years, granting ap pellant’s motion for a downward dispositional
departure.
This appeal follows.
D E C I S I O N
I. The district court did not plainly err in allowing police testimony about
the appearance of strangulation injuries on photographs and video.

At trial, the responding officer testified that A.P.’s injuries were more obvious on
visual inspection than they appeared on the body-camera video and photographs admitted

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into evidence. He also testified that strang ulation injuries often appear less distinct in
photographs and videos than to the naked ey e. He based this general opinion on his
experience with hundreds of domestic-vio lence calls and investigations, and also
referenced training received at an out-of-state course on domestic assault by strangulation.
Although appellant objected at trial to the prosecutor’s question about the reasons that
injuries are not always visible, which objection was sustained, appellant did not object to
the officer’s testimony that injuries do not appear well on photogr aphs and video.
Appellant now argues that the district court pl ainly erred in allowing the officer to testify
as an expert about the appearance of injuries on photographs and video.
Because appellant did not object to this testimony, we apply the plain-error doctrine.
State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998). Under the plain-error doctrine,
appellant may be entitled to a new trial if he esta blishes (1) an error; (2) that is plain; and
(3) that affected his substantial rights. Id. If the first three prongs are satisfied, this court
“may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.
2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)).
A lay witness may testify in the form of opinions or inferences if such testimony is
rationally based on the perception of the witness, helps the jury to understand a fact issue,
and is not based on scientific , technical, or other speciali zed knowledge. Minn. R. Evid.
701. Conversely, a witn ess qualifies as an expert thr ough “knowledge, skill, experience,
training, or education” and may testify in accordance with their background in the form of

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an opinion. Minn. R. Evid. 702. Although police officers possess specialized training and
experience, they do not always testify as experts. State v. Ards , 816 N.W.2d 679, 683
(Minn. App. 2012).
Here, the officer testified that “there’s lenses with cameras that sometimes have
glare and at times there are injuries from an assault, especially a strangulation assault, that
don’t tend to show up . . . when you take di gital photographs or any photographs of these
injuries.” Later, the prosecutor asked ho w the officer formulated his opinion that
strangulation injuries were difficult to photograph. The officer responded that he received
training in domestic assault by strangulation at the Institute on Strangulation Prevention in
San Diego. He also testified that he had responded to about 50 calls involving claims of
domestic assault strangulation, and that in juries frequently did not appear well in
photographs in those cases.
To the extent the officer testified based on specialized training rather than on his
own experiences and observations as an officer, his statements constituted expert testimony
for which advance disclosure was required. And because the state did not disclose his
expert testimony, allowing such testimony was error, and any error was plain. See Minn.
R. Crim. P. 9.01, subd. 1(4)(c) (requiring advance disclosure of summary of expert
testimony). Turning to the third Griller prong, an error affects substantial rights if it is
prejudicial and affects the outcome. See Griller, 583 N.W.2d at 741. The appellant bears
a “heavy burden” of persuasion on this prong. Id.
In light of the other evidence presented in this case, we cannot conclude that this
error affected the outcome. The body-camera video shows interviews of A.P. and appellant

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shortly after the alleged assault. A.P. testified that appellant put his arms around her throat
and picked her up off her feet, she could not breathe, she clawed her way out of his grasp
and escaped outside, where a friend called 911. Appellant also testified about the alleged
assault. The officer testified that the exhib its did not show A.P.’s injuries very well.
Appellant had the opportunity to cross-examine the officer about this testimony as well as
his testimony that such discrepancies are comm on. Instead, appellant argued in closing
that the photographs and video support his version of events. The jury was entitled to make
credibility determinations in light of all of the evidence presented. On this record, appellant
has not satisfied the “heavy burden” of persuasion that his substantial rights were affected
by the challenged testimony. The district court did not plainly err in admitting the officer’s
testimony about his own observations and experience about the appearance of the victim’s
strangulation injuries on the photographs and video.
II. A.P.’s recorded statement was not inadmissible hearsay.

Appellant argues that the district court pl ainly erred in admitting into evidence the
unredacted body-camera video recording, which contained A.P.’s statement that just before
the assault, appellant “told me he was going to choke me or that he wanted to choke me
out.” Appellant did not object at trial, but now argues that this statement is inadmissible
hearsay. As with appellant’s expert-witne ss argument, our review is for plain error. See
Griller, 583 N.W.2d at 740.
Hearsay is defined as an out-of-court stat ement offered as evidence to prove the
truth of the matter asserted. Minn. R. Evid. 801(c). “The complexity and subtlety of the
operation of the hearsay rule and its exceptions make it particularly important that a full

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discussion of admissibility be conducted at trial.” State v. Manthey, 711 N.W.2d 498, 504
(Minn. 2006). A statement is not hearsay if the declarant testifies at trial, is subject to
cross-examination concerning th e statement, and the statemen t is consistent with the
declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility
as a witness. Minn. R. Evid. 801(d)(1)(B). “Before the statement can be admitted, the
witness’s credibility must have been challenged, and the statement must bolster the
witness’s credibility with respect to that aspect of th e witness’s credib ility that was
challenged.” State v. Nunn , 561 N.W.2d 902, 909 (Minn. 1997). It is undisputed that
A.P.’s credibility was at issue, and that she testified befo re the video was offered.
Appellant argues that A.P.’s statement is not consistent with her testimony and thus is not
admissible under Minn. R. Evid. 801(d)(1)(B). We disagree.
Trial testimony and the challenged stat ement “need not be verbatim.” State v.
Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).
But the challenged statement must be “reasonably consistent” with the trial testimony. In
re Welfare of K.A.S. , 585 N.W.2d 71, 76 (Minn. App. 19 98). A.P.’s trial testimony was
somewhat less detailed than her statement to the police officer at the scene, but her recorded
statement that appellant said he wanted to, or would, choke her is reasonably consistent
with her trial testimony that the interaction was heated but she did not remember the exact
verbal exchange leading up to being lifted off the ground by her neck. We cannot conclude
that the recorded stat ement was clearly or obviously in admissible hearsay. Thus, the
district court did not err in admitting the body-camera reco rding without redaction.

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Because appellant has not shown error, we need not consider the remaining prongs of the
plain-error doctrine.
III. Appellant’s criminal-history score appears to have been miscalculated.

The district court’s determination of a defendant’s criminal-history score will not
be reversed absent an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn.
App. 2002), review denied (Minn. Aug. 20, 2002). A defe ndant’s criminal-history score
includes points for each prior felony convicti on. Minn. Sent. Guidelines 2.B (2017); see
State v. Oberg, 627 N.W.2d 721, 723 (Minn. App. 2001), review denied (Minn. Aug. 22,
2001). But a defendant may be assigned a point for a felony convic tion only if he was
sentenced for that conviction. Oberg, 627 N.W.2d at 724. Put another way, multiple
convictions that result in a single sentence ar e properly calculated as a single criminal-
history point. See id.
At sentencing, the district court applied a criminal-history score of six to appellant’s
convictions. The district court calculated appellant’s criminal-history score using five prior
felony convictions and one custody status point. Appellant’s criminal-history score
included three points for three felony convicti ons entered on the same day in 2004. The
record indicates that appe llant received a single senten ce of eight years for these
convictions. Thus, it appears that appellant’s criminal-history score was miscalculated. A
determination of which 2004 conviction resu lted in a sentence could impact the overall
calculation. Accordingly, we reverse appellant’s sentence and remand to the district court
for recalculation of his criminal-history score and resentencing.
Affirmed in part and remanded.