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This opinion will be unpublished and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
A17-1974

State of Minnesota,
Respondent,

vs.

Jallah Sallah Kollie,
Appellant.

Filed September 17, 2018
Affirmed
Smith, Tracy M., Judge

Becker County District Court
File No. 03-CR-17-55

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Pr esiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jallah Kollie appeals his conv iction of first-degree criminal sexual
conduct. He argues that there was insufficient evidence to prove the injury element of the

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crime and that the district court erred in ad mitting recorded interviews of the victim, who
also testified at trial, as substantive evidence. We affirm.
FACTS
In September 2016, Kollie worked fo r Lake Homes and Pr ogram Development
(Lake Homes), an organization that operate s homes for adults with developmental
disabilities or related conditions. The facility he worked at had tw o floors, with four
residents on each floor. The residents of the upper floor are “mobile,” “able to manipulate
stairs,” and “take care of their own needs.” They would “frequently come down [to the
lower floor] and visit the residents who lived there and socialize with the residents and
staff.” The residents on the lower floor “were non-ambulatory or elderly, so their physical
needs were more intense.” Kollie was a direct-support professional on the lower floor, and
his responsibilities included making sure client s on that floor had their health and well-
being needs met.
The victim in this case, J.K., was a clie nt of Lake Homes in September 2016. She
lived on the upper floor of the facility where Ko llie worked. She ha d a diagnosis of
“moderate mental retardation and autism spec trum disorder,” but was “independent with
all of her cares, maybe [needing] some verbal cues [regarding] what kinds of clothes might
be appropriate or if it was the time [of] day fo r her shower.” She was capable of “taking
care of her own personal needs. She c ould shower on her own [and] if she was
menstruating,” she could take care of that as well. When she had her period, staff members
would not “need to do anything for her as it re late[d] to taking care of those needs,” nor
did she need help with “toileting when she went to the bathroom.”

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On September 13, 2016, Ko llie was working on the lower floor at the Lake Homes
facility. He was the only staff member working on that floor, and Wilmot Karyou, another
direct-support professional, was the only staff member working on the upper floor. Around
5:00 p.m., Karyou was prepar ing dinner in the upper-floor kitchen when he saw Kollie
come upstairs for the first time that evening. Kollie told Karyou that J.K. had brought him
a television remote control because two of the upstairs clients had been fighting over it and
that Kollie was returning it to the upstairs television. Kollie then went back downstairs,
but he came back up about 15 to 20 minutes later.
When Kollie came back up stairs, Karyou first thou ght Kollie had gone to the
medication room, which is located on the upper floor. However, five minutes passed and
Kollie did not return to the stairwell. Ka ryou shouted Kollie’s name down the hallway,
and Kollie responded that he was in the bathroom helpin g J.K. Karyou was “a little bit
concerned trusting [Kollie],” so , after seven or eight more minutes had passed, he went
back to the hallway, saw that Kollie had not exited the bathroom, and pushed the bathroom
door open.
When Karyou opened the doo r, he saw J.K. standing naked in the bathroom with
Kollie. Karyou saw blood on the tub, on J.K.’s legs, and on tissues in the trash can. Karyou
asked Kollie what he was doing, and Kollie said J.K. was menstruating. Karyou told Kollie
that it was not his job to help J.K. and to go back downstairs to his post. Kollie complied
with that command.
Karyou then called his supervisor, who, in turn, called the Lake Homes hiring
manager, Barbara Tevogt, asking her to come to the facility. In the interim, J.K. showered,

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and Karyou asked her a couple of questions about what had happened in the bathroom.
Specifically, Karyou asked “if [Kollie] touched her,” “why did he do that,” and “was [this]
the first time.” Karyou did not ask J.K. a ny questions “about where she was touched or
what she was touched with or what had happened.” When Tevogt arrived, she interviewed
J.K. and recorded the conversation. J.K. told Tevogt that a man had “touched [her] when
[she] should not do [sic],” that the man wore glasses,1 worked on the lower floor, and was
“the man downstairs.” When asked where the man touched her, J.K. said “my body,”
“where the pee and the poop go.”
The assault was reported to the police, and, on September 14, Officer Randy Haken
went to the Lake Homes facility and interviewed Karyou once and J.K. twice. Karyou was
allowed to be present for both interviews of J.K. In the in terviews, J.K. reiterated that
someone had touched her on her “private parts” and that the assailant wore glasses. She
also indicated that the attacker wore a condo m, which he then removed and threw in the
trash. Officer Haken also spoke with Kollie that evening. Kollie denied ever being in the
bathroom and said he did not know why Karyou or J.K. would make up a story about him.
A sexual-assault exam was conducted on September 15. The exam did not find any
of Kollie’s DNA on or in J.K. But a search for injuries revealed a “half-a-centimeter skin
break on the floor of [J.K.’s] vaginal opening.” This injury indicated that “the skin ha[d]
been broken apart.” It would have taken “a considerable amount of force” striking the

1 Kollie wore glasses throughout trial, though he claimed that they were a new acquisition
since the time of the assault.

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tissue to have caused such a tear. The exam also determined that J.K. was not having her
period when the assault occurred.
Kollie was charged with first-degree cr iminal sexual conduc t and third-degree
criminal sexual conduct. The state moved for an order determining J.K.’s competence to
testify and admitting recordings of Tevogt’s and Haken’s interviews of J.K. as substantive
evidence. Following a hearing, the district court ruled that J.K. was competent to testify.
The court reserved ruling on the admissibility of the recordings until trial, when the purpose
and specific sections of the statements would be known, but indicated that it was otherwise
inclined to admit the statements.
A jury trial was held on August 7 and 8, 2017. Prior to opening statements, the
district court expanded on its preliminary ruling regarding the recordings. The court
concluded that there was compliance with the statute permitting those recordings to be used
as substantive evidence and specifically noted that “the statements do have sufficient
evidence of reliability” because they “were made near in time to the incident[,] . . . [t]hey
were given on more than one occasion, and there are some inconsistences that can be
subject to cross-examination concerning the statements.” Regarding factors potentially
weighing against the admission, the court said:
The court [did] not find that there was any significant delay
between giving of the statemen t and the initial report of the
evidence[,] [a]nd the court belie ve[d] that any leading nature
of the questions that may have been contained in the statement
were related somewhat to the mental[] impair[ment], mental
state or condition, and ability to understand.

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The morning of the second day of trial, Kollie’s counsel asked to “rehear the motion about
playing the audio and stuff.” He indicated that “the defendant objects to playing all of the
audio and stuff . . . because I don’t know if I ma de clear that we objected to that.” When
asked what portions were object ed to, counsel indicated he wa s objecting to “the playing
[of] the statements [sic] . . . that was recorded by Barb Tevogt. I just want to make it clear
that the defendant objects to that.” He also indicated that there wa s “[n]o new basis” for
the objection. The district court noted the objection but permitted th e state to play the
recordings by Tevogt and Haken to the jury.
The jury found Kollie guilty of both charges. The district court sentenced Kollie on
the first-degree-criminal-sexual-conduct conviction.
Kollie appeals.
D E C I S I O N
I. The evidence was sufficient to prove that Kollie caused personal injury to J.K.

An element of first-degree criminal sexual conduct is that th e defendant caused
“personal injury” to the victim. Minn. Stat. § 609.342, subd. 1(e) (2016). Personal injury
is defined as “bodily harm,” which includes “physical pain or in jury.” Minn. Stat.
§§ 609.02, subd. 7, .341, subd. 8 (2016). “[T]he threshold for what constitutes bodily harm
. . . is minimal . . . .” State v. Struzyk, 869 N.W.2d 280, 289 (Minn. 2015); see, e.g., State
v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (finding sufficient evidence of bodily harm
based on a bruise); State v. Johnson, 152 N.W.2d 768, 773 (Minn. 1967) (concluding there
was sufficient evidence to constitute bodily harm when victim experienced pain from being
struck and shoved, despite lack of permanent or serious injury).

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Kollie argues the evidence was insufficient to prove beyond a reasonable doubt that
he caused personal injury to J.K. He argues the state attempted to prove this element of
first-degree criminal sexual conduct through ci rcumstantial evidence and, therefore, the
heightened circumstantial-evidence standard of review applies. The state argues there was
direct evidence of personal injury, making th e heightened standard inapplicable. We
conclude that, under either the direct-evidence or the circumstantial-evidence standard, the
evidence was sufficient to prove that Kollie caused personal injury.
A. Direct Evidence
When considering whether there is sufficient evidence to support an element proved
by direct evidence, Minnesota appellate courts “conduct a painstaking review of the record
to determine whether the evidence and reasonable inferences drawn therefrom, viewed in
a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.”
Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) (quotation omitted).
Kollie argues there was no direct eviden ce of personal injury because “J.K. was
unaware she even had a tear to her vaginal wall, and therefore, she did not testify that Kollie
caused her the injury,” nor did she do so in he r recorded statements. To the extent J.K.
stated that Kollie hurt her, Kollie argues that, given the contex t of that testimony, “J.K.’s
responses appear to be her way of explaining that her entire body was touched and not an
attempt to explain any specific injury.”
We are unpersuaded. J.K. te stified that the attacker “hurt [her] body” and, when
asked what he touched her with, elaborated that “[h]e hurt [her] whole body.” Viewing the
evidence in the light most favo rable to the verdict, this is direct evidence that J.K.

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experienced physical pain, and physical pain is sufficient to prove personal injury. See
Johnson, 152 N.W.2d at 773 (holding that experi encing pain was suffi cient evidence to
constitute bodily harm). The direct evidence is, therefore, sufficient to meet the personal-
injury element of first-degree criminal sexual conduct.
B. Circumstantial Evidence
When considering whether there is sufficient evidence to support an element proved
by circumstantial evidence, Minnesota appellate courts engage in a two-step inquiry. State
v. Petersen, 910 N.W.2d 1, 6 (2018). First, the c ourt identifies the circumstances proved
by the state, “giving deference to the factfinder’s acceptance of the State’s evidence,” and
assuming that “the factfinder disbelieved any testimony conflicting with [the] verdict.” Id.
at 6-7 (quotations omitted). Second, the court determines , without deference to the
factfinder, “whether the circumstances proved are consistent with guilt and inconsistent
with any rational hypothesis other than guilt.” Id. at 7 (quotation omitted).
Kollie argues that the state “fail[ed] to eliminate the rational hypothesis that Kollie
did not cause the small half centimeter tear to J.K.’s vaginal wall.” Specifically, Kollie
points to two pieces of evidence : the sexual-assault nurse ex aminer’s testimony that the
injury could have “happen[ed] from a finger with a sharp fingernail” and J.K.’s interview
statement that she had recently been “peeing a lot of blood.” Kollie argues that, taken
together, this evidence leads to the reasonable inference that the injury “could have been
caused by a sharp fingernail.”
The alternative hypothesis is not rational. In the course of establishing its case, the
state proved that:

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(1) When Karyou discovered Kollie in the bathroom with
J.K., Karyou saw blood on J.K.’s legs, on the tub, and
on a wet wipe in the trashcan;
(2) J.K. had blood in her urine around the time of the
assault;
(3) J.K. was not menstruating at the time of the assault;
(4) Two days after the assault, J.K. had a half-centimeter
long tear of skin on the floor of her vaginal opening;
(5) Two days after the assault, there was a spot of blood
beside the tear;
(6) A considerable amount of force would have had to
strike the tissue to make such a tear;
(7) The tear could only have been caused by penetration of
the vaginal opening;
(8) Thirty percent of rapes involves some kind of injury to
the vaginal tissue;
(9) The tear was consistent with J.K.’s description of the
assault.

Taken together, these circumstances lead to only one reasona ble conclusion—that Kollie
caused the tear in the floor of J.K.’s vaginal opening while he was committing the assault.
Although it is technically possible that the injury could have occurred prior to the assault
or between the assault and the sexual-assault exam, without any support in the record, such
a conclusion is purely speculative. Moreover, the fact that J.K. saw blood and believed she
was beginning her period on the day of the assault renders Kollie’s alternative hypotheses
not rational. An alternative hypothesis that is mere conjecture is not sufficient to attack a
conviction, even one based on circumstantial evidence. See State v. Stein , 776 N.W.2d
709, 714 (Minn. 2010) (“Even in cases ba sed on circumstantial evidence, however, we
have recognized that the jury is in the best position to eval uate the evidence, and we will
not overturn a conviction based on circumst antial evidence on the basis of mere

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conjecture.”) (quotations omitted). We concl ude that there was sufficient circumstantial
evidence to prove the element of personal injury.
II. The district court did not abuse its discretion in admitting the recorded
interviews of J.K.

Kollie argues the district court erred in admitting the audio recordings of the
interviews of J.K. conducted by Tevogt and Haken. Again, the parties dispute the standard
of review. The state argues that Kollie failed to preserve this issue for appeal and therefore
it is subject to plain-error review. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)
(describing plain-error standard of review for unobjected-to errors). Kollie argues that he
preserved the issue and therefore the decisi on should be reviewed under the abuse-of-
discretion standard for evidentiary rulings. See State v. Wilson , 900 N.W.2d 373, 384
(Minn. 2017) (“[E]videntiary questions are re viewed for abuse of discretion.” (quotation
omitted)). We assume, without deciding, that Kollie pres erved the issue and review the
district court’s decision to admit the recordings for an abuse of discretion.
Generally, out-of-court statements cannot be offered as evidence to prove the truth
of the matter asserted. Minn. R. Evid. 802. However, both the Minnesota Rules of
Evidence and the Minnesota Statutes carve out various exceptions to this rule. The district
court relied on one statutory exception when it decided to admit the recordings in this case:
An out-of-court statement made by . . . a person who is
mentally impaired . . . alleging, explaining, denying, or
describing any act of sexual co ntact or penetration . . . is
admissible as substantive evidence if:
(a) the court or person authorized to receive evidence
finds, in a hearing conducted outside of the presence
of the jury, that the time, content, and circumstances
of the statement and the re liability of the person to

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whom the statement is made provide sufficient
indicia of reliability; and
(b) the . . . person mentally impaired . . . :
(i) testifies at the proceedings; . . . and
(c) the proponent of the stat ement notifies the adverse
party of the proponent’s intention to offer the
statement and the partic ulars of the statement
sufficiently in advance of the proceeding at which
the proponent intends to offer the statement into
evidence to provid e the adverse party with a fair
opportunity to prepare to meet the statement.

Minn. Stat. § 595.02, subd. 3 (2016). In determining whether there are “sufficient indicia
of reliability,” courts must look at th e totality of the circumstances. State v. Scott , 501
N.W.2d 608, 618 (Minn. 1993).
Kollie argues that the recordings do no t satisfy Minn. Stat. § 595.02, subd. 3,
because the circumstances of the statement do not provide “sufficient indicia of reliability.”
Specifically, Kollie argues that “the court never evaluated the reliability of J.K.’s
statements in light of the role and presence Karyou played in this ca se and the giving of
the three statements,” and therefore the cour t never considered that Karyou could have
“exerted influence over J.K. to falsely implicate Kollie” so that Karyou could cover up his
own misconduct. This is possible, accordin g to Kollie, because Ka ryou was present for
Officer Haken’s two interviews of J.K.
We do not believe the district court abused its discretion in admitting the statements.
The court’s examina tion of the reasons for and ag ainst admitting the recordings
demonstrates that the court appropriately considered the circumstances in which the
interviews occurred, and it determined that those circumstances provided sufficient indicia
of reliability to make the reco rdings admissible. Moreover, a review of the recordings

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indicates that, although Karyou was present for the two interviews with Officer Haken, he
did not play any role in thos e interviews, neither asking J. K. questions nor assisting her
with answering. Considering the circumstances as a whole, we conclude that the district
court was within its discretion to admit the recordings as substantive evidence.
Affirmed.