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This opinion will be unpublished and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
A18-0827

State of Minnesota,
Respondent,

vs.

Jarrett Thomas Hill,
Appellant.

Filed April 15, 2019
Affirmed
Ross, Judge

St. Louis County District Court
File No. 69DU-CR-17-2253

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury convicted Jarrett Hill of violating a harassment restraining order after the
state accused him of sending numerous emails to his former girlfriend. He argues on appeal
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from his conviction that the district court plainly erred by admitting extrinsic evidence of
his accuser’s prior statements and by failing to give the jury a specific-unanimity
instruction. Because the statements are not obviously inadmissible hearsay, the district
court did not plainly err by not sua sponte prohibiting them. We need not decide whether
the district court plainly err ed by not giving the jury a specific-unanimity instruction,
because the error did not affect Hill’s substantial rights. We therefore affirm.
FACTS
Jarrett Hill and S.P. were romantically involved on and off for almost eight years
until S.P. successfully petitioned the district court in May 2017 to issue a restraining order.
The order prohibited Hill from contacting S.P. in any way, directly or indirectly, including
visits, phone calls, or electronic communications. But S.P. soon missed Hill, and she
contacted him. Hill responded in an email exchange lasting two weeks, using three different
email addresses and complaining about S.P.’s infidelity.
On June 15 Duluth police officer Richard LeDoux responded to S.P.’s 9-1-1 report
that a man was in her barn. S.P. suspected that the man was Hill and told Officer LeDoux
about the restraining order. Officer LeDoux found no one in the barn. S.P. reported that
Hill had been violating the restraining order, and she showed police the emails she had
received from hi m. The state charged Hill with violating the order under Minnesota
Statutes section 609.748, subdivision 6(d)(1) (2016).
S.P. testified at Hill’s trial about the emails, saying that Hill sent them . She did not
recall some of their details, noting that “[t] hey all [ran] together in [her] mind.” On
cross-examination, Hill attempted to impeach S.P. ’s testimony with questions about her
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own crimes and her hazy memory. Without objection, the district court allowed the
prosecutor to show the jury video footage from Officer Cheney’s body camera depicting
his interaction with S.P., and Officer LeDoux testified about S.P.’s statements. The district
court instructed the jury to find Hill guilty if it found four facts:
First, there was an existing court restraining order.
Second, the defendant knew of the existence of the order.
Third, the defendant violated a term or condition of the order.
Fourth, on or about June 2-16, 2017, the victim received an
email communication from the defendant on Martin Road
where the victim resides in St. Louis County.

The jury found Hill guilty based on the email evidence. Hill appeals his conviction.
D E C I S I O N
Hill seeks reversal based on two alleged errors: the district court’s admitting prior
statements made by S.P. and its f ailing to give a specific-unanimity instruction. Because
Hill objected to neither the evidence’s omission at trial nor the failure to give a unanimity
instruction, we will review only for plain-error. See State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). Hill must therefore show that there was an error, that the error was plain,
and that the error affected his substantial rights. See State v. Kelle y, 855 N.W.2d 269,
273–74 (Minn. 2014). If he meets these elements, we will reverse if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 274.
I
We are not persuaded by Hill’s contention that the district court plainly erred by
allowing evidence of S.P.’s out-of-court statements made to the police officers. Because
hearsay rules are complex and require nuanced application, statements must be “clearly or
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obviously inadmissible hearsay” to provide a premise for plain error. See State v. Manthey,
711 N.W.2d 498, 504 (Minn. 2006). Even if the statements are hearsay, they are not
inadmissible if the district court correctly admitted them as prior consistent statements.
State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997). Evidence of a witness’s out-of -court
statements is admissible to bolster the credibility of her testimony after the testimony has
been challenged. Id. at 909. Hill’s counsel attempted to i mpeach S.P.’s testimony by
highlighting her inability to re member details about the emails and by exposing her prior
felonies:
Hill’s counsel: Okay. Okay. So essentially, to conclude, really,
you’re not sure who sent those e-mails and you’re sure you’ve
been convicted of a couple of felonies at — at least. Right?
S.P.: Yes.
Hill’s counsel: Okay. And you’re sure — really, that’s all kind
of you’re sure of, huh, is just that?
S.P.: Yes.

S.P.’s now-challenged prior statements illuminated her knowledge about the emails and
about who sent them to her based on the sender’s address, tending to bear on the credibility
of her testimony. The district court therefore properly admitted the statements.
Hill argues that accepting the statements was plain error because they were admitted
as prior inconsistent statements for which the state failed to follow the admission
procedure. See Minn. R. Evid. 613(b) (defining procedural steps for admitting extrinsic
evidence of prior inconsistent statements). The argument fails. By not objecting to the
statements as hearsay, Hill did not afford the state any opportunity to establish which
hearsay exception applied. Hill assumes that they were admitted as prior inconsistent
statements because the state gave pretrial notice that it may be impeaching S.P. But as it
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turned out, the statements were consistent with S.P.’s testimony that the emails came from
Hill. To the extent the statements might be construed as inconsistent rather than consistent,
the argument for reversal triggers the concern discussed in Manthey about the requirement
that alleged improper testimony must constitute clear and obvious hearsay to support a
plain-error challenge. The statements are not clearly or obviously hearsay unprotected by
an exception, and we do not address them further.
II
Hill argues that the district court should have issued a specific-unanimity
instruction. The district court may not convict a defendant on a guilty verdict that is not
unanimous. Minn. R. Crim. P. 26.01, subd. 1(5). A verdict is unanimous only if the jury
finds that the state proved all elements of the crime. State v. Pendleton, 725 N.W.2d 717,
730–31 (Minn. 2007). A person violates a harassment restraining order if a harassment
restraining order exists, the person knows of the order, and he violates one of its terms or
conditions. Minn. Stat. § 609.748, subd. 6(b) (2016). One term of the order restraining Hill
prohibited him from having any contact with S.P., including sending her an email,
regardless of whether S.P. initiated the contact. This means that Hill’s sending any one of
the emails could, standing alone, constitute the crime of violating the order.
When a defendant faces a single charge but the jury hears evidence of different acts
that could each independently constitute the crime, the district court must advise the jury
to find the defendant guilty only if it unanimously agrees which act the defendant
committed. See State v. Stempf, 627 N.W.2d 352, 356 (Minn. App. 2001); but see also
State v. Infante, 796 N.W.2d 349, 356–57 (Minn. App. 2011) (distinguishing Stempf and
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not requiring unanimity instruction in assault trial where the two alleged actions were part
of the same behavioral incident rather than two independent acts constituting separate
crimes).
But we need not decide whether the district court should have advised the jury to
find Hill guilty only if it agreed unanimously as to which one (or more) of the emails Hill
sent. This is because even if not so advising the jury was plain error, the error did not affect
Hill’s substantial rights. A plainly erroneous jury instruction affects a defendant’s
substantial rights if there is a reasonable likelihood that the instruction would have
significantly affected the jury’s verdict. State v. Wenthe, 865 N.W.2d 293, 299 (Minn.
2015). We reversed in Stempf, for example, in part because the defendant gave two separate
defenses for each act that allegedly constituted the drug-possession charge. 627 N.W.2d at
358. We reasoned that omitting the unanimity instruction could not have been harmless
because, based on the facts presented at trial, “the jury could have believed appellant’s
defense as to one act but not the other .” Id. Hill’s jury faced no such conundrum. Hill did
not present various defenses to the different emails, but instead offered a single defense to
be applied to all of them: S.P. was unbelievable because she was un sure about who sent
her the emails and she had herself previously been convicted of a crime. We must infer
from the guilty verdict that the jury rejected Hill’s catch-all credibility defense. In this
context, the lack of a unanimity instruction did not affect Hill’s substantial rights.
Affirmed.