State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1992

State of Minnesota,
Respondent,

vs.

Dwayne Andre Garner,
Appellant.

Filed December 17, 2018
Affirmed in part, reversed in part, and remanded
Florey, Judge

Goodhue County District Court
File No. 25-CR-16-3043

Lori Swanson, Minnesota Attorney General, Michael Everson, Assistant Attorney General,
St. Paul, Minnesota; and

Stephen Betcher, Goodhue County Justice Center, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Suzanne M . Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Dwayne Andre Garner cha llenges his convictions of thi rd-degree
criminal sexual conduct, domestic assault, and fifth-degree assault. He argues that (1) the
district court erroneously admitted prior out-of-court statements as substantive evidence to

2
prove he committed third-degree criminal sexual conduct; (2) the state failed to prove that
the complainant, C.M .K., suffered bodily harm as required for t he domestic assault and
fifth-degree assault charges; and (3) the district court erred by entering a conviction and
sentence for fifth-degree assault because it is a lesser-included offense of domestic assault.
Appellant also raises a number of pro se arguments. We affirm appellant’s conviction of
third-degree criminal sexual conduct, but we reverse the convic tions of domestic assault
and fifth-degree assault. We remand to the district court to v acate those two convictions
and amend the warrant of commitment accordingly.
FACTS
In November 2013, appellant met C.M.K. on the internet. At the time, C.M.K. was
52 years old and living in Maine. She had two adult sons, three grandchildren, and a mother
w h o a l s o l i v e d t h e r e . H e r p r i m a r y m e a n s o f s u p p o r t w a s s u p p l e mental social-security
income that she received as a result of a disability.
After communicating with appellant frequently via Skype and text, C.M.K. traveled
to Minnesota in 2015 to meet him for the first time. Shortly t hereafter, C.M.K. moved to
Minnesota to be with him. In February 2016, C.M.K. moved into an apartment in Cannon
Falls, Minnesota, that appellant had picked out for her. The a partment complex was
reserved for senior citizens a nd/or persons with a disability. Appellant had a house in
Rochester and, unbeknownst to C.M.K., was married at that time.
C.M.K. testified that once she moved to Minnesota, she and appellant did not spend
much time together. Shortly after her move, appellant left the state to attend a 30-day work

3
training. While he was away, C.M.K. sent him over $1,000 to he lp pay for his living
expenses, and as a result, she fell behind on rent.
In November 2016, appellant ret urned to Minnesota and came to live with C.M.K.
at her apartment. C.M.K. testified at trial that during this p eriod, he became physically
abusive toward her. She testified that he would occasionally “ slap [her] in the face” or
grab her by the throat, and that he would demand that she call him “sir.”
The property manager of C.M.K.’s apartment building, A.C., test ified at trial that
after appellant began staying at C.M.K.’s apartment more freque ntly, A.C. observed a
change in C.M.K.’s demeanor. A.C. described C.M.K. as becoming “very emotional,”
“crying a lot,” and coming in to her office to see her more often. A.C. stated that she began
doing walk-throughs of the apart ment complex more frequently an d would hear loud
yelling coming from C.M.K.’s unit. She also began to notice mu ltiple bruises on C.M.K.
A.C. eventually went to the police station to retrieve pamphlets on domestic abuse, which
she slipped under C.M.K.’s door, because she was concerned for C.M.K.’s safety.
On December 22, 2016, appellant a rrived at C.M.K.’s apartment a t around
10:30 p.m. C.M.K. testified at trial that on the night of Dece mber 22, appellant appeared
to be angry with her. She stated that shortly after he arrived to her apartment, he placed a
call to another woman with whom he began laughing and apparentl y having a good time.
C.M.K. testified that this upset her. She stated that she began crying and eventually left to
go for a walk. She decided to sleep on the couch that night, w hile he slept in her bed, in
order to get some space from him.

4
C.M.K. testified that, on the morning of December 23, while she was standing in
her living room looking out the window, appellant came up from behind her, grabbed her
by her arms, and forcibly took her into her bedroom. She told him no and tried to resist his
force by holding on to the wall, but appellant was able to overcome her resistance. C.M.K.
testified that appellant then sat her down on her bed and forced her to perform oral sex on
him.
At trial, C.M.K. testified several times that she “did not remember” what happened
after appellant pulled his pants down. Immediately after testifying that appellant “put it in
[her] mouth,” she then stated, “[a]ll I remember is he took it out and he said—I had my
mouth closed; and he said, open your mouth. He said, I’m so st ressed. That’s all I
remember. I blacked out. That’s all I remember.”
C.M.K. testified that after appe llant forced her into her room to perform oral sex,
she felt “numb,” but that she had to attend a pre-scheduled meeting with A.C. and appellant
to discuss her past-due rent. A.C. testified that C.M.K. arrived at her office nearly an hour
early before the meeting. Accord ing to A.C., C.M.K. was pacing back-and-forth, crying,
and visibly upset. A.C. testified that C.M.K. “stormed out” in the middle of the meeting
crying.
A.C. further testified that, after C.M.K. left the meeting, appellant told A.C. that he
was planning to end his relationship with C.M.K. and work on sending her back to Maine.
Appellant stated that he had not yet told C.M.K. of his intenti ons. After appellant left
A.C.’s office, C.M.K. returned a few minutes later crying. A.C . described C.M.K. as “a
mess, crying, hysterical.” R.C., who was responsible for the maintenance of the apartment

5
building, walked into A.C.’s office around the same time. C.M.K. then told A.C. and R.C.
what had happened in her apartme nt earlier that morning. A.C. testified that “[C.M.K.]
said that [appellant] pulled his pants down and that he shoved his penis in her mouth.” 1
Likewise, R.C. testified that C .M.K. reported that appellant “g rabbed her by the hair, he
dragged her in the room, he pulled his dick out, shoved it in h er mouth. And that’s her
words.”2
Despite C.M.K.’s fear about reporting the incident to law enfor cement, A.C. and
R.C. insisted that they call the police. Approximately 20 minu tes after A.C. called the
police, Officer Fluhrer and Lieutenant Berg of the Cannon Falls Police Department arrived
at A.C.’s office. While questioning C.M.K. about what had happened that morning in her
apartment, the officers observed that she was crying and visibl y upset. Officer Fluhrer
testified that C.M.K. reported that “her boyfriend was up in the apartment and that he had
physically assaulted and forcibly had her perform acts, sexual acts on her [sic] that
morning.”3 A f t e r b r i e f l y s p e a k i n g w i t h C.M.K., the two officers went up to C.M.K.’s
apartment unit to speak with appellant.

1 Defense counsel did not object to this portion of A.C.’s testimony as hearsay or otherwise.
2 Defense counsel did not object to this portion of R.C.’s testimony as hearsay or otherwise.
3 Defense counsel did not object to this portion of Officer Fluh rer’s testimony as hearsay
or otherwise. Defense counsel did, however, later object “to a ny further use of [the
officers’] body cam videos” on the grounds of hearsay and cumul ative evidence. The
district court judge overruled the objection, stating: “I don’t believe that it’s hearsay, and I
note that there were transcripts provided and [C.M.K.] was more than open to being cross-
examined on what she said on these. As far as whether this is cumulative or being asked
and argued or something like this, I note that this is a Court trial and that I have confidence
that I can sift through this; and I’m going to allow this testimony in.”

6
Officer Fluhrer testified that appellant invited the officers i n and agreed to speak
with them. Appellant told the of ficers that C.M.K. was angry w ith him because he was
moving out, but denied having eve r assaulted her. When asked w hat time he had arrived
at C.M.K.’s apartment, appellant told the officers it was aroun d 6:00 or 7:00 a.m. that
morning. He stated that he had then gone downstairs to speak w ith A.C. about C.M.K.’s
rent. Later, during the same exchange with the officers, appel lant stated that he had not
been up to C.M.K.’s apartment before the meeting with A.C. Surveillance footage, which
the officers eventually obtained, showed appellant entering C.M .K.’s apartment around
10:30 p.m. the night before and not leaving the apartment complex at any point before the
next morning.
The officers removed appellant from C.M.K.’s apartment and detained him in their
squad car while they conducted further investigation. When Lie utenant Berg returned to
the squad car to interview appellant, he advised him of his rig ht to remain silent and the
right to consult with an attorney. Appellant stated that he understood his rights and wished
to speak with him. According to appellant, C.M.K. was upset with him because he told her
he was ending their relationship. Throughout the exchange, appellant continued to present
inconsistencies in his story. At the end of the interview, Lieutenant Berg placed appellant
under arrest for the sexual assault of C.M.K.
That day, Officer Fluhrer retur ned to C.M.K.’s apartment to get a DNA sample from
her mouth that would be submitted to the Bureau of Criminal Apprehension for review. At
appellant’s request, Lieutenant Berg escorted him to a Mayo Cli nic where photos were

7
taken of his body and a physical examination was conducted by a Mayo doctor, including
the taking of a DNA swab.
On December 27, 2016, appellant w as charged with third-degree c riminal sexual
conduct, in violation of Minn. Stat. § 609.344, subd. 1(c) (201 6); domestic assault, in
violation of Minn. Stat. § 609.2242, subd. 1(2) (2016); and fifth-degree assault, in violation
of Minn. Stat. § 609.224, subd. 1(2) (2016). Appellant waived his right to a jury trial, and
in April 2017, a three-day bench trial was held. The state cal led C.M.K., A.C., R.C.,
Officer Fluhrer, and Lieutenant Berg to testify. The state als o offered the officers’ video
recordings of C.M.K.’s prior statements as well as their record ings of appellant’s two
interviews. The defense called appellant to testify.
The district court found appella nt guilty of all three counts a s charged. The judge
stated that he found C.M.K. to be credible and believed her testimony. Although the results
of the DNA swabs of C.M.K. and appellant were not available at the time of trial, the
district court judge found that the results would not have impacted his decision either way.
In September 2017, appellant was sentenced to the presumptive 4 8-month prison
term for the third-degree criminal-sexual-conduct conviction, a nd concurrent 90-day
sentences for the domestic assau lt and fifth-degree assault con victions. This appeal
followed.

8
D E C I S I O N
I. There was sufficient evidence for the district court to find ap pellant guilty of
third-degree criminal sexual conduct.

A. The district court did not commit plain error by admitting C.M. K.’s
prior out-of-court statements as substantive evidence.

Appellant asks this court to grant him a new trial because the district court erred by
admitting prior out-of-court statements as substantive evidence. He contends that, although
his trial counsel failed to object to the admission of most of C.M.K.’s prior out-of-court
statements, the issue is not waived on appeal because the court ’s error was plain and
prejudicial. According to appellant, the only way the district court could have found him
guilty of third-degree criminal sexual conduct was to rely on C.M.K.’s prior statements as
substantive evidence.
“Rulings on evidentiary matters r est within the sound discretio n of the trial court,
and [appellate courts] will not reverse a trial court’s evidentiary ruling absent a clear abuse
of discretion.” State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997). However, “[i]n the
absence of an objection, [an app ellate court] may review the ad mission of evidence for
plain error.” State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006) (citing Minn. R. Crim.
P. 31.02). The three-prong plain- error standard requires the d efendant to show (1) error;
(2) that was plain; and (3) that affected the defendant’s subst antial rights. Id.; see also
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Minnesota Rule of Evidence 801(d)(1)(B) provides that a prior o ut-of-court
statement is not hearsay if “[t]he declarant testifies at the t rial or hearing and is subject to
cross-examination concerning the statement, and the statement i s . . . consistent with the

9
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).
In considering whether to admit a prior consistent statement, the district court must
determine (1) whether the witness’s credibility has been challenged; (2) whether the prior
statement would “bolster the witness’ credibility with respect to that aspect of the witness’
credibility that has been challenge d”; and (3) whether the prio r statement and trial
testimony are consistent. State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004) (quoting
Nunn, 561 N.W.2d at 909). Trial testimony and prior statements nee d not be verbatim to
be considered consistent. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review
denied (Minn. Feb. 24, 2000).
The trial court properly admitte d C.M.K.’s prior out-of-court s tatements as non-
hearsay under Minn. R. Evid. 801(d)(1)(B). Although appellant contends that the defense
did not challenge C.M.K.’s credibility on the particular issue of penetration, our review of
the trial transcripts indicates o therwise. During C.M.K.’s cro ss-examination, defense
counsel challenged her recollection of the event in the following exchange:
Q: Did you state to the officers that you had kept your
mouth shut when [appellant] was attempting to get
head, I guess?

A: Yes, I did.

Q: And then today I think on three or four occasions you
said, after that I just don’t remember what happened,
fair enough?

A: I blacked out. I don’t remember if I did or not.

10
Q: I’m just wanting to know what your recollection is; and
if it’s a blackout, it’s a blackout, okay?

Similarly, in Nunn, which appellant cites in support of his argument, the Minnesota
Supreme Court concluded that the prior consistent statements of the state’s witnesses were
admissible because the witnesses were subject to cross-examinat ion and their credibility
had been challenged by the defen dant who disputed their recolle ction of the events. 561
N.W.2d at 909. The supreme court held that the district court did not commit error in
admitting the prior out-of-court statements because they corroborated the witness’ in-court
testimony with respect to the dis puted events and were helpful t o t h e t r i e r o f f a c t i n
evaluating the witness’ credibility. Id.
Second, as the district court indicated, the prior out-of-court statements strengthened
C.M.K.’s credibility with regard to the challenged element of p enetration. During
C.M.K.’s trial testimony describing the sexual assault, she specifically stated that appellant
“put it in [her] mouth.” There is no doubt that the district c ourt found her testimony
credible. Indeed, when announcing the verdict, the district court judge stated:
There was not much, if any, physical evidence presented by the
State, which makes [C.M.K.’s] and Mr. Garner’s statements
very important to me. I really focused on those statements that
[C.M.K.] and Mr. Garner made. Primarily here in the
courtroom in their testimony under oath, but also their
statements to law enforcement that we listened to or watched.
I did so to determine credibility and also to look at consistency,
motive. . . . I really focused on [C .M.K.]. She is the accuser .
Whether or not she was credible, given what I just said about
the evidence, weighed heavily upon me. . . . I found her
credible. I believe her.

11
Pursuant to Minnesota law, testimony of a victim in a prosecuti on for third-degree
criminal sexual conduct need not be corroborated. State v. Johnson, 679 N.W.2d 378, 387
(Minn. App. 2004) (citing Minn. Stat. § 609.347, subd. 1 (2016)). However, “[t]he absence
of corroboration in an indivi dual case . . . may well call for a holding that there is
insufficient evidence upon which a jury could find the defendan t guilty beyond a
reasonable doubt.” Johnson, 679 N.W.2d at 387 (citations omitted).
I n t h e p r e s e n t c a s e , C . M . K . ’ s s t a t e m e n t u n d e r o a t h t h a t a p p e l l an t f o r c e d h e r t o
perform oral sex was corroborated by testimony of each of the s tate’s witnesses. As we
have stated before, “[a] prompt complaint by a victim is corroborative evidence of a rape”
and “[t]estimony from others about a victim’s emotional condition after a sexual assault is
also corroborative evidence.” Id. Here, the evidence was sufficient as a matter of law for
the court to convict appellant of third-degree criminal sexual conduct. The record at trial
established that C.M.K. was visibly upset, crying, and hysteric al as she recounted the
incident to A.C., R.C., and the two responding officers shortly after she was assaulted.
Finally, C.M.K.’s trial testim ony and prior out-of-court statem ents were primarily
consistent with one another. Although C.M.K. presented some inconsistencies during her
cross-examination, stating, for example, that she did not remem ber what happened after
appellant pulled down his pants, her in-court testimony that he “put it in [her] mouth” was
consistent with her out-of-court statements to A.C., R.C., and the two officers. A.C. and
R.C. both testified that C.M.K. told them that appellant “shoved” his penis “in her mouth.”
Lieutenant Berg testified that C.M.K. reported to him and his partner that appellant “beats
on her and forced himself on her that morning.” Similarly, Off icer Fluhrer testified that

12
C.M.K. reported that appellant “had physically assaulted and forcibly had her perform acts,
sexual acts on her [sic] that morning.”
C.M.K.’s description of the assault, of the night leading up to the assault, and of her
volatile relationship with appella nt, have also been consistent . Further, all of the state’s
witnesses conveyed a similar impression of C.M.K. on the mornin g of the offense,
corroborating her testimony that appellant sexually assaulted h er. Id. (affirming the
defendant’s conviction of third-d egree criminal sexual conduct, based, in part, on
corroborating testimony, notwithstanding the victim’s recantati on of the allegations).
Because we conclude that C.M.K.’s prior out-of-court statements qualified as non-hearsay
under Minnesota Rules of Evidence 801(d)(1)(B), the district co urt did not commit plain
error in admitting the statements as substantive evidence.
B. The district court’s admission of C.M.K.’s prior out-of-court statements
was not prejudicial.

Even if we were to conclude that the district court’s admission of the prior out-of-
court statements was error, our decision to affirm the convicti on would not change. In
order to satisfy the third prong of the plain-error standard, “ a defendant must show
prejudice that forms the basis f or a reasonable likelihood the error substantially affected
the verdict.” Manthey, 711 N.W.2d at 504.
The district court expressly provi ded that its verdict rested p rimarily on C.M.K.’s
trial testimony, stating that it found her to be credible and b elievable. See State v.
Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (holding that great deferenc e is given to
the trial court’s determinations of witness credibility, and th e appropriate weight to be

13
given to witness testimony rests within the province of the factfinder), aff’d, 508 U.S. 366
(1993); Johnson, 679 N.W.2d at 387 (“[T]he inconsistencies and related credibi lity
determinations [are] for the [factfinder] to assess.”); see also State v. Johnson, 568 N.W.2d
426, 435 (Minn. 1997) (“It is a well-established rule that a co nviction can rest upon the
testimony of a single credible witness.”). Because the distric t court’s admission of
C.M.K.’s prior out-of-court statements did not affect its verdict, we conclude appellant was
not prejudiced. Appellant’s conviction of third-degree criminal sexual conduct is affirmed.
II. There was insufficient evidence o f bodily harm for the district court to find
appellant guilty of domestic assault or fifth-degree assault.

Appellant asks this court to rev erse his convictions for domest ic assault and fifth-
degree assault because, he argues, the state failed to prove beyond a reasonable doubt that
C.M.K. suffered bodily harm. In considering a claim of insufficient evidence, the appellate
courts review the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the fact-finder to reach its verdict. State
v. Olhausen, 681 N.W.2d 21, 25-26 (Minn. 2004). The appellate court must assume the
“[fact-finder] believed the state’s witnesses and disbelieved any evidence to the contrary.”
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
The state charged appellant with domestic assault (intentionally inflicts or attempts
to inflict bodily harm upon another), in violation of Minn. Stat. § 609.2242, subd. 1(2), and
fifth-degree assault (intentionally inflicts or attempts to inflict bodily harm upon another),
in violation of Minn. Stat. § 609.224, subd. 1(2). Thus, to es tablish appellant’s guilt of
e i t h e r c h a r g e , t h e s t a t e w a s r e q u i r e d t o p r o v e t h a t a p p e l l a n t intentionally inflicted or

14
attempted to inflict bodily harm on C.M.K. “Bodily harm” is defined as “physical pain or
injury, illness, or any impairment of physical condition.” Min n. Stat. § 609.02, subd. 7
(2016).
Appellant contends that neither moving C.M.K. from one room to another, nor
forcing her to perform oral sex, satisfies the statutory definition of bodily harm. He argues
that the state must have shown C.M.K. suffered physical pain or injury in order to reach a
conviction.
We conclude there was insufficient evidence of bodily harm as defined in Minn.
Stat. § 609.02, subd. 7. “Only a minimal amount of physical pain or injury is necessary in
order to satisfy the definition of bodily harm.” State v. Tscheu , 758 N.W.2d 849, 859
(Minn. 2008) (quotation omitted). While we acknowledge this re latively low threshold,
and give great deference to the factfinder’s credibility determ inations, evidence of bodily
harm in the record is speculative, at best.
At trial, C.M.K. testified that appellant used force to get her from the living room to
the bedroom. She stated that he did not “dig” his hands into h er, but that “he had a good,
hard grip” on her. Although there was testimony at trial that appellant had been physically
abusive toward C.M.K. on prior occasions, there were no allegat ions of physical harm or
injury on the morning in question. Based on our review of Minn esota case law and the
statutory definition of “bodily h arm,” we conclude there was in sufficient evidence to
convict appellant of the two assault charges. Although we reve rse the convictions of

15
domestic assault and fifth-degree assault, we, by no means, take lightly the emotional harm
and trauma C.M.K. experienced as a result of appellant’s actions.4
Because we reverse both of the assault convictions, we need no t address whether
the district court erred by entering a conviction and sentence for fifth-degree assault.
III. Appellant’s pro se arguments are without merit.
Appellant raises a number of issues in his pro se brief. He claims (1) ineffective
assistance of trial counsel; (2) that he was coerced into saying incriminating statements in
violation of Miranda v. Arizona, 384 U.S. 436 (1966); (3) that exculpatory evidence was
suppressed in violation of Brady v. Maryland , 373 U.S. 83 (1963); and (4) a number of
Fourteenth Amendment violations. Having carefully reviewed the se issues, we conclude
they are all without merit.
Affirmed in part, reversed in part, and remanded.

4 We note that appellant was not charged with domestic assault ( fear), under Minn. Stat.
§ 609.2242, subd. 1(1), which would have required a different a nalysis as to the issue of
whether appellant’s actions placed C.M.K. in fear of immediate bodily harm. Because the
state charged appellant with domestic assault (bodily harm), under Minn. Stat. § 609.2242,
subd. 1(2), our analysis is limited to whether appellant intentionally inflicted or attempted
to inflict pain or injury on C.M. K. Based on the record, we co nclude that the requisite
elements under domestic assault (bodily harm) were not met.