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This opinion will be unpublished and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
A18-1028

State of Minnesota,
Respondent,

vs.

Phillip Michael Johnson,
Appellant.

Filed July 8, 2019
Affirmed
Smith, Tracy M., Judge

Todd County District Court
File No. 77-CR-17-1153

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Smith, T racy M., Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Following a jury trial, appellant Phillip Johnson was found guilty and convicted of
one count of domestic assault for an incident in which he threa tened his then-girlfriend,
M.N. In this direct appeal, Johnson argues that a prior statem ent that M.N. made to the

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police was not “read into evidence” within the meaning of Minn. R. Evid. 803(5), and that,
without that statement, the evidence was insufficient to prove his guilt beyond a reasonable
doubt. He also argues that the prosecutor committed misconduct by referring to the prior
statement as substantive evidence in his closing argument. We affirm.
FACTS
In November 2017, Johnson and M.N. were in a romantic relationship. Both suffer
from alcoholism; they spent much of November 26 drinking. During the day, Johnson was
verbally abusive toward M.N. on several occasions; she responde d to each incident by
leaving the house for a while and then returning. M.N. did not remember the details of
everything that Johnson said to her. At some point, though M.N. did not remember how,
the police were contacted, and M.N. provided a recorded stateme nt to an officer. In that
statement, M.N. told police that Johnson had threatened to “bash [her] in the head” and to
“choke [her] out.” The state charged Johnson with domestic assault based on those threats,
which it alleged were made with intent to cause fear of immediate bodily harm or death.
At trial, M.N. remembered Johnson making various insulting statements but did not
recall any threats. She also remembered giving the statement to the police but not
everything that she said in it. M .N. was allowed to review the transcript of her statement,
but doing so did not refresh her recollection. The prosecution then asked permission to use
the transcript as a recorded recollection and “to impeach the witness on what’s on that part
of the statement.” The parties and the court discussed whether, w h y , a n d h o w M . N . ’ s
transcribed statement to the police would be admissible. After the district court determined
that the transcribed statement would be admissible as a recorded recollection under Minn.

3
R. Evid. 803(5), the state explained how it intended to read the recollection into evidence:
“What I intend on doing is . . . asking [M.N.] isn’t it true qu estions that ‘Q’ says this and
‘A’ says that, and she can answe r for me . . . .” While Johnson ’s counsel objected to the
use of the recorded recollection as substantive evidence, he ma de clear that he had no
comment on that method of reading the statement into evidence.
The prosecutor ultimately engaged in the following exchange with M.N. before the
jury:
Q: Okay. And where the question says “Okay” and then
underneath it says “Answer,” and is it true that the answer
portion says, “He said that I should bash you in the head. I
should choke you out.” Is that correct? Is that what that says?
A: That’s what it says.
Q: Okay. Then the next question says, “He say those things
tonight?” Is that correct?
A That’s what it says, correct.
Q: And the answer is, “Yeah. He says them on a daily
basis.” The next question is “Okay.” Is that – is that all correct?
A: Yes.
Q: And is it true the answer that comes after okay says, “It
is true. I’m not lying. I swear to God I’m not lying.”
A: Correct.
Q: Is that what that says?
A: Yes.

The state presented testimony fro m several other witnesses, but none testified to
having witnessed the assault.
After the state rested, Johnson moved for a directed verdict of acquittal, arguing that
M.N.’s testimony did not prove that she had a fear of imminent bodily harm or death and
also did not prove that Johnson intended to cause such fear. Johnson’s attorney based this
argument on M.N.’s recorded recollection. He noted in particula r M.N.’s statement from

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the transcript that Johnson made such threats daily, implying that it would be unreasonable
to understand Johnson’s words as an actual threat and unreasona ble to infer that Johnson
intended the words to be threatening. In evaluating the motion, the district court treated the
statements, read by the prosecut o r a n d a f f i r m e d a s a n a c c u r a t e r e a d i n g b y M . N . , a s
substantive evidence th at had been read into the record. The di strict court denied the
motion.
Johnson testified in his own defense, admitting that it was possible that he made the
specific threats from M.N.’s reco rded recollection but stating that, because of his
intoxication, he did not recall. He denied intentionally assaulting M.N. on November 26.
In the state’s closing argument, the prosecutor repeatedly asse rted that his reading
of M.N.’s statement counted as evidence. Specifically, he said:
[M.N.] had a difficult time with memory regarding those six
lines on the top of page two. Those were lines that I read into
the record with her sitting on the witness stand, but let’s not
forget those were her words. Those were her words that she
gave to law enforcement the day this incident occurred. Those
were the words she used—she gave to Deputy Brittney when
she took her statement. That’s evidence. You heard the
arguments of the attorneys are not evidence, but that’s
evidence. Yes, she was—in dicated she could not recall
specifically what she said, but those words were read into
evidence and she testified agai n she remembers making that
statement and that she reviewed that transcript, that she just
simply couldn’t recall some portions of that. Those were read
into evidence and that is evidence.
. . . .
Again, the evidence is what was stated in court by the witnesses
and also includes the transcript, six lines that I read into
evidence. . . . Statements again myself and that [defense
counsel] would make, they’re not evidence, they’re argument,

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and the only exception is statements that I read into the record
that were [M.N.’s] words.
On several occasions, the prosecutor both referred to “those fi rst six lines of page two,”
and quoted the words of the threats—“bash her head in” and “choke her out.”
In the defense’s closing argument, Johnson’s counsel did not contend that the state’s
reading of M.N.’s recorded recollection was not substantive evi dence. Rather, he argued
that the statements described by M.N. in the recorded recollect ion were not specific
threats—they were “I should” statements rather than “I am about to” statements. Johnson’s
attorney also argued that the ev idence did not provide context that could tell the jury
whether the statements were intended to, or in fact did, cause fear of imminent bodily harm
or death.
After deliberations began, the jury requested the transcript of M.N.’s recorded
recollection. The state’s position was that the court should no t comply with the request
because the recorded recollection had been read into the record but had not been introduced
as an exhibit; neither the court nor defense counsel disagreed with that position.
The jury found Johnson guilty. Johnson was convicted and sentenced to 32 months’
imprisonment. He now appeals, asserting that M.N.’s recorded recollection was never read
into evidence. Based on that claim, he argues that there was insufficient evidence to support
his conviction and that the pro secutor committed misconduct by referring to his own
questions about the transcribed statement as evidence.

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D E C I S I O N
I. M.N.’s statement was read into evidence.
A witness’s prior out-of-court s tatement about an event is gene rally hearsay and
may not be admitted for the truth of the matter asserted. Minn. R. Evid. 801, 802. An
exception to the hearsay rule allows admission of “[a] memorandum or record concerning
a matter about which a witness once had knowledge but now has i nsufficient recollection
to testify fully and accurately.” Minn. R. Evid. 803(5). To be admissible, the record must
be shown, first, “to have been m ade or adopted by the witness w hen the matter was fresh
in the witness’ memory” and, second, “to reflect that knowledge correctly.” Id. The record
may be “read into evidence” but can only be made an exhibit if offered by an adverse party.
Id.
Here, Johnson does not dispute that M.N.’s statement to the pol ice qualified as a
recorded recollection and was admi ssible under rule 803(5). Ins tead, Johnson argues that
the prosecutor’s reading of the t ranscript in leading questions to M.N. did not count as
reading it into evidence within the meaning of Minn. R. Evid. 8 03(5). His position is that
it was actually introduced for the limited purpose of impeachment.
Johnson’s main contention is that the transcript was never “rea d into evidence”
within the meaning of Minn. R. Evid. 803(5). We review de novo the meaning of the rules
of evidence. See State v. Sanchez-Sanchez , 879 N.W.2d 324, 329 (Minn. 2016)
(“[Appellate courts] review the i nterpretation and application of the rules of evidence de
novo.”). Because Johnson’s argum ent turns primarily on whether the phrase “read into

7
evidence” includes the process used by the prosecutor in this case, our review proceeds de
novo.
In support of his argument that the transcript was not “read into evidence,” Johnson
points to three facts from trial. First, the transcript of the prior statement was read to M.N.
in a series of questions. Second, the state did not play the au dio recording for the jury.
Third, the state did not introduce a transcript of the statemen t as an exhibit. Because of
these facts, Johnson contends that the state did not introduce the statement as substantive
evidence. Implicit in Johnson’s a rgument is a claim that a reco rded recollection is only
“read into evidence” when the audio recording is played, when the prosecutor reads directly
to the jury, or when the transcript is introduced as an exhibit.1
But Johnson cites no law as to what it means for a recorded recollection to be “read
into evidence.” From our review, while caselaw has addressed the admissibility of evidence
pursuant to Minn. R. Evid. 803(5), see, e.g., State v. Stone, 784 N.W.2d 367 (Minn. 2010)
(evaluating whether a witness had “insufficient recollection to testify fully and accurately”
and whether the witness “made or adopted” the recorded recollection for purposes of rule
803(5)), no Minnesota case governs how a recorded recollection may be read into evidence.
Other jurisdictions allow a witn ess to read a recorded recollec tion into evidence.
See, e.g., Parker v. Reda, 327 F.3d 211, 214 (2d Cir. 2003) (holding that a district cou rt
did not err by allowing a police sergeant to read the contents of his recorded recollection

1 The last part of the assertion—that the state should have intr oduced the record as an
exhibit—is certainly incorrect. Rule 803(5) expressly prohibits a nonadverse party from
introducing the record as an exhibit. Thus, reading the record into evidence is not the same
as introducing it as an exhibit. Minn. R. Evid. 803(5).

8
into evidence); Rudy v. Bossard , 997 P.2d 480, 484 (Wy. 2000) (stating that, under
Wyoming’s comparable rule, “a memorandum or record may be read into evidence by a
witness”). Here, while M.N. did not actually read aloud the rec orded recollection, the
prosecutor’s method of reading in the transcript was functionally identical: the prosecutor
read from the statement, and then asked M.N. whether his readin g was accurate. There is
no substantive difference betwee n asking a witness to confirm t he accuracy of a reading
and having the witness perform the reading personally. 2 See Kenneth J. Melilli,
Examination of a Witness Ba sed on a Prior Statement , in 49 Am. Jur. Trials 501, 532-35
(Richard Kohlman Hughey et al. e ds., 1994) (illustrating the us e of leading questions to
read a recorded recollection into evidence where the attorney reads the recollection and the
witness confirms that the reading was accurate). Thus, the dist rict court did not err by
allowing this method of reading the transcript into evidence.

2 This is not to say that there a re no differences; one method r esults in leading questions
while the other does not. To the extent Johnson claims that the district court should not
have allowed the prosecutor to use leading questions when questioning M.N., we reject his
argument. The district court has “control over the mode . . . o f . . . presenting evidence.”
Minn. R. Evid. 611(a). A district court may permit leading ques tions as necessary to
develop a witness’s testimony. Minn. R. Evid. 611(c). District courts’ discretion over the
use of leading questions “is practically absolute.” Garedpy v. Chi., Milwaukee, St. Paul &
Pac. R.R. Co., 223 N.W. 605, 606 (Minn. 1929); see also Bigham v. J. C. Penney Co., 268
N.W.2d 892, 898 (Minn. 1978) (requiring that a party asserting that a district court erred
by allowing leading questions show a “clear abuse of discretion” and clearly show specific
prejudice). And leading questions may be particularly appropriate when a witness is having
difficulty recalling prior statements. See Behlke v. Conwed Corp. , 474 N.W.2d 351, 356
(Minn. App. 1991), review denied (Minn. Oct. 11, 1991). Here, the prosecutor said that he
intended to read from the transcript and ask M.N. whether or not his reading was accurate.
The district court approved of the method proposed by the prosecutor, and defense counsel
did not object. We see no abuse of discretion in permitting the state to ask leading questions
of M.N. under the circumstances.

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Johnson’s argument that the state only introduced the evidence as impeachment also
fails. While it is not entirely without support—the prosecutor did say that he wanted to use
M.N.’s statement to the police to impeach M.N.—his argument ign ores other
circumstances around the admission of the statement. First, the prosecutor also specifically
asked for the evidence to come in under rule 803(5). Johnson gi ves no reason why this
court should take the prosecutor at his word with respect to im peachment but not with
respect to the introduction of the statement as a recorded reco llection. Second, M.N.’s
answers to the prosecutor’s questions, in which she affirmed th at he had accurately read
the transcript of her prior statement, did not tend to impeach her other testimony. M.N. had
testified that she did not recall the events that the statement described and did not recall
giving those parts of the statement. Her lack of present memory was not inconsistent with
the substance of the statement she gave to the police. Third, when ruling that the transcript
could be admitted, the court required that further foundation b e laid, showing that the
statement was an accurate reflec tion of M.N.’s knowledge at the time. Such testimony is
required for the admission of evidence under rule 803(5). But i mpeachment by prior
inconsistent statement does not require a witness to acknowledg e that the prior statement
accurately reflected the witness’s knowledge at the time. See State v. Martin, 614 N.W.2d
214, 224 (Minn. 2000) (describing the foundation that must be l aid to impeach a witness
by prior inconsistent statement). Thus, the district court inte nded that the evidence be
admitted for substantive purpos es, not for impeachment. Finally , Johnson’s attorney, in
moving for a directed verdict of acquittal, relied on the substance of M.N.’s prior statement,
indicating that he believed it had been admitted for more than just impeachment purposes.

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In sum, the prosecutor’s comment about impeachment did not prev ent the recorded
recollection from being introduced as substantive evidence.
M.N.’s recorded recollection was “read into evidence” within the meaning of Minn.
R. Evid. 803(5).
II. The evidence was sufficie nt to support the conviction.
Johnson argues that there was insufficient evidence on which to convict him because
there was no evidence that he ever engaged in conduct constituting assault.
When considering a claim of insufficient evidence, appellate review “is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient to permi t the jurors to reach the
verdict they did.” State v. Bowen, 921 N.W.2d 763, 765 (Minn. 2019) (quotation omitted).
“We assume that the jury believe d the witnesses whose testimony supports the verdict.”
State v. Pendleton, 706 N.W.2d 500, 512 (Minn. 2005).
Johnson was charged with, and convicted of, domestic assault in violation of Minn.
Stat. § 609.2242 (2016). That charge required the state to prov e, among other things, that
Johnson assaulted M.N. See Minn. Stat. § 609.2242, subd. 1 (defining the crime). Under
the state’s theory of the case, “assault” meant an act done “wi th intent to cause fear in
[M.N.] of immediate bodily harm or death.” See id.
Johnson argues that, because the transcript of M.N.’s prior sta t e m e n t w a s n e v e r
“read into evidence,” there was no evidence that he ever did an ything with the intent to
cause M.N. to fear immediate bodily harm or death. But, as previously concluded, M.N.’s
statement was read into evidence within the meaning of Minn. R. Evid. 803(5), and the

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statement described Johnson’s threats to “bash [her] in the hea d” and “choke her out.” If
credited, as we presume it to have been, Pendleton, 706 N.W.2d at 512, M.N.’s statement
was sufficient evidence for the jury to have found that Johnson threatened M.N. with intent
to cause her to fear immediate bodily harm or death.
III. The prosecutor did not p lainly commit misconduct.
Johnson’s last argument is that he is entitled to a new trial b ecause the prosecutor
committed misconduct in his closing argument by referring to the reading of the transcript
as substantive evidence. Johnson did not object to the state’s closing argument at trial.
Appellate courts review claims of unobjected-to prosecutorial misconduct for plain
error, using a modified test. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). Under
that test, the defendant bears the burden of showing that there was misconduct constituting
error and that the error was plain; to be plain, the error must “contravene[] case law, a rule,
or a standard of conduct.” State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012) (quotation
omitted). If the defendant shows plain error, the burden “shifts to the [s]tate to demonstrate
that the error did not affect the defendant’s substantial rights.” Id. If the state fails to meet
its burden, an appellate court then “must decide whether the er ror seriously affected the
fairness and integrity of the judicial proceedings.” State v. Radke, 821 N.W.2d 316, 329
(Minn. 2012).
Johnson asserts that the prosecutor violated three related rule s in his closing
argument. The first is the rule against referring to evidence not introduced at trial. See State
v. Morton, 701 N.W.2d 225, 237 (Minn. 2005 ) (“While the state’s argument need not be
‘colorless,’ it must be based on the evidence produced at trial, or the reasonable inferences

12
from that evidence.”). The second prohibits the use of impeachm ent evidence as
substantive evidence. See Radke, 821 N.W.2d at 329 (holding that it was plain error for a
prosecutor to “invite[] the jury to use [impeachment evidence] as substantive evidence of
guilt”). And the last forbids an attorney from referring to the a t t o r n e y ’ s q u e s t i o n s a s
evidence. See State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004) (“[T]he questions and
arguments of attorneys are not evidence.” (quotation omitted)).
The prosecutor did not plainly vi olate any of the rules Johnson identifies. First,
because the prosecutor read the t ranscript into evidence within the meaning of Minn. R.
Evid. 803(5), it was “eviden ce produced at trial,” Morton, 701 N.W.2d at 237, and the
prosecutor could properly refer to it in closing.
The second rule that Johnson identifies was not violated for a similar reason.
Evidence introduced under Minn. R. Evid. 803(5) may be used for the truth of the matter
asserted and not merely for impeachment. See Minn. R. Evid. 801(c) (defining hearsay as
“a statement . . . offered in evidence to prove the truth of th e matter asserted”), 803
(creating exceptions to the rule against hearsay). Because M.N.’s prior statement was read
into evidence under rule 803(5), it was substantive evidence of Johnson’s threatening
statements.
The third rule that Johnson identifies presents the closest thi ng to error. Johnson
contends that the prosecutor committed misconduct by repeatedly stating that his reading
of the transcript constituted evidence. Whether the prosecutor wrongly referred to his
questions as evidence turns on a r ather arcane question: when, exactly, during the
prosecutor’s questioning of M.N., was the transcript read into evidence? There appear to

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be two possibilities. First, the transcript may have been “read into evidence” at the moment
the prosecutor read it aloud. If this is the case, then the prosecutor’s description of his words
as evidence is correct. Second, the transcript may have been “r ead into evidence” when
M . N . a f f i r m a t i v e l y a n s w e r e d t h e prosecutor’s question. If this i s t h e c a s e , t h e n M . N . ’ s
affirmative answer was evidence, and the prosecutor’s reading of the transcript was merely
a question, not evidence. But, because no case law, rule, or st andard of conduct defines
when a recorded recollection is “read into evidence,” there was no plain error. Carridine,
812 N.W.2d at 146.
The prosecutor did not plainly commit misconduct in his closing argument.
Affirmed.