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This opinion will be unpublished and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
A18-1118

State of Minnesota,
Respondent,

vs.

Damon Ray Garnett,
Appellant.

Filed June 10, 2019
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-7697

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

Michael O. Freeman, Hennepin Coun ty Attorney, Patrick R. Lofton , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mark D. Nyvold, Fridley, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge ; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Damon Ray Garnett called the police to report a susp ected burglary of his
home. But after arriving, officers observed suspicious behavio r by Garnett and smelled
marijuana. They then obtained a search warrant and discovered a firearm, ammunition,

2
and marijuana in the home. Garnett, whose criminal history mad e it illegal for him to
possess the firearm, now challenges his convictions of being a prohibited person in
possession of a firearm and ammunition. Because the district c ourt did not abuse its
discretion in its evidentiary ru lings and did not plainly err b y failing to sua sponte direct
the state to stop playing recordings of jail calls, we affirm.
FACTS
After observing a man attempting to break into his house on his self-installed
security camera, appellant Damon Ray Garnett called the police. Officers arrived at
Garnett’s house about one minute later. By that time, Garnett was parked in his driveway
and frantically gesturing to police and pointing west, indicati ng that the burglary suspect
went that direction. Police officers apprehended the burglary suspect.
But after police stopped the bur glary suspect, they noticed Garnett quickly running
towards the suspect holding a weapon described as an “asp baton ” above his head. The
officers asked Garnett to stop and drop his weapon. After he r efused to do so, officers
tackled Garnett and detained him . In doing so, the officers no ticed a large amount of
cash—nearly $3,000—in Garnett’s pocket and smelled a strong odor of fresh marijuana.
Officers returned to Garnett’s house to check for evidence of a burglary. Inspection
of the exterior of the home revealed footprints matching the sn eakers of the burglary
suspect and a broken door handle. Additionally, officers smell ed the odor of fresh
marijuana coming from an open basement window well. Based on t heir observations,
police asked Garnett for keys to enter his home to ensure no one was inside and that nothing
was stolen. Garnett refused. Police expressed their observations about the marijuana odor

3
to Garnett and noted that they could get a search warrant. Gar nett told police to “get a
warrant.”
About two hours later, after obtaining a search warrant, police searched Garnett’s
home. During the search, police discovered a safe in the basement, which contained a little
over $86,000 in cash and a box of ammunition for a 9mm handgun. Police also recovered
a loaded 9mm handgun under a seat cushion on a chair in the din ing room. Additionally,
police found drug paraphernalia a nd marijuana amounting to arou nd 1,000 grams
throughout the house. As a result of the search, the state cha rged Garnett with one count
of being a prohibited person in possession of a firearm, 1 one count of being a prohibited
person in possession of ammunition, and fifth-degree drug possession.
Before trial, Garnett sought to exclude testimony about his beh avior toward the
suspected burglar. But the distr ict court concluded that the t estimony was necessary to
provide jurors with context for t he police investigation. The parties also discussed with
the court several jail calls between Garnett and B.G., his ex-g irlfriend and the mother of
his child. The state agreed to not offer the jail calls as sub stantive evidence during its
case-in-chief because they were not timely discovered or disclo sed, but the district court
and both parties agreed that the calls could potentially be used to impeach B.G. depending
on her testimony.

1 Garnett is prohibited from possessing a firearm or ammunition as a result of his conviction
for second-degree murder in 2000.

4
At trial, several police officers testified about responding to the burglary call,
Garnett’s behavior toward the burglary suspect, 2 and their observations leading them to
obtain a search warrant. The officers also described executing the search warrant and their
discovery of marijuana, the han dgun, ammunition, and the nearly $ 8 6 , 0 0 0 i n c a s h i n
Garnett’s home. The state further presented forensic testimony3 that no latent fingerprints
were found on the handgun or its magazine but that Garnett’s DNA matched a sample taken
from the handgun and the magazine.4
Garnett waived his right to tes tify. But he presented testimon y from B.G., who
testified that she purchased the handgun found in Garnett’s house in 2013 after her brother
was murdered and offered into evidence the receipt showing her purchase of the gun. She
explained that on the day of the suspected burglary, she was at Garnett’s house because he
was taking their daughter to the Mall of America, and she broug ht her handgun and
ammunition inside with her and put the ammunition in the safe. B.G. stated that she was
scared because she was at the house alone, so she took the handgun out of its case and kept
it next to her. According to B.G., her mother called her and t he two argued, so B.G. put
her handgun under the cushion o f the dining room chair and left in a hurry. In her direct

2 Garnett objected to testimony about his behavior toward the bu rglary suspect, but the
district court overruled the objection.
3 A forensic scientist from the Hennepin County Crime Lab who pe rformed DNA testing
on the handgun and the magazine stated that a DNA mixture from three or more people
was found on the handgun. The majority contributor’s DNA matched a DNA sample taken
from Garnett. Similarly, the magazine contained a DNA mixture from four or more people,
and the majority contributor’s DNA profile matched Garnett’s.
4 At the end of the state’s case, per the agreement of the parti es, the district court judge
read a stipulation to the jury that Garnett was prohibited from possessing firearms or
ammunition.

5
testimony, B.G. admitted that dur ing several jail calls between h e r a n d G a r n e t t , t h e y
discussed the gun, the search of the home, and that she apologi zed for leaving her gun at
Garnett’s house.
During cross-examination, the state also asked B.G. about her jail calls with Garnett,
including her statement that she hoped police did not find any fingerprints on the handgun.
B.G. testified that by that statement, she meant that she hoped police found her fingerprints
on the gun, would know the gun was hers, and that the case woul d go away. The state
asked her about other statements during the jail calls involvin g going to a gun range with
Garnett, but B.G. testified that she did not remember saying those things or going to a gun
range with Garnett. On re-direct, Garnett’s counsel pointed out that the statements the state
referenced were only a snippet of what was said during the jail calls.
Based on B.G.’s testimony and cross-examination, the district court—over defense
counsel’s objection—allowed record ings of these jail calls to b e played for the jury,
reasoning that B.G.’s testimony “opened the door.” In those calls, Garnett referred to the
money seized as “his money,” and B.G. commented about hoping po lice did not find
fingerprints on the handgun. When questioned regarding her sta tement about testing for
fingerprints, B.G. testified that “I said that, but in reverse meaning that I hope they do.”
After the case was submitted to the jury, jury members asked if they could listen to
one of the jail calls again, but the district court denied that request. The jury subsequently
found Garnett guilty of all three counts. The district court sentenced Garnett to 60 months
on each count of being a prohibited person in possession of a firearm and being a prohibited

6
person in possession of ammunition, and 15 months for fifth-degree drug possession, all to
be served concurrently. Garnett appeals.5
D E C I S I O N
Garnett alleges that during his trial, the district court abuse d its discretion in two
ways: by admitting evidence about his behavior toward the suspe cted burglar and by
allowing the state to play the recorded jail calls to impeach B.G. Further, Garnett contends
that the district court plainly erred by allowing the state to continue playing recordings of
jail calls containing potentially prejudicial information, desp ite the fact that the state
promised to redact the prejudicial information. We review each argument in turn.
I. The district court did not abuse its discretion by admitting evidence about
Garnett’s behavior toward the suspected burglar.

Garnett first argues that the district court abused its discretion by allowing the state
to present evidence of Garnett’s behavior toward the burglary suspect because the evidence
was irrelevant and more prejudicial than probative. We review a district court’s evidentiary
rulings for an abuse of discreti on, and on appeal, the appellan t bears the burden of
demonstrating an abuse of discretion resulting in prejudice. State v. Amos , 658 N.W.2d
201, 203 (Minn. 2003).
Rule 402 of the Minnesota Rules of Evidence provides that “[a]ll relevant evidence
is admissible . . . ” unless prohibited by the United States or Minnesota Constitution or
other laws or rules. Minn. R. Ev id. 402. Relevant evidence is “evidence having any

5 Garnett challenges only his convictions of being a prohibited person in possession of a
firearm and ammunition.

7
tendency to make the existence of any fact that is of consequen ce to the determination of
the action more probable or less probable than it would be with out the evidence.” Minn.
R. Evid. 401. But even if evidence is relevant, a district cou r t m a y e x c l u d e i t “ i f its
probative value is substantially outweighed by the danger of un fair prejudice.” Minn. R.
Evid. 403.
Here, the district court concluded that the evidence of Garnett ’s behavior—which
included running toward the burglary suspect with an asp baton over his head, resulting in
officers tackling and detaining him—was more probative than pre judicial. The evidence
was probative, the district cour t concluded, because it provide d jurors with necessary
context for how and why the police investigation of Garnett began. We agree.
As the district court correctly noted, “[e]vidence is admissibl e to give jurors the
context for an investigation.” State v. Griller, 583 N.W.2d 736, 743 (Minn. 1998). It was
reasonable for the district court to conclude that jurors would need context to understand
why Garnett went from being a burglary victim to being arrested by police and having his
home searched. Excluding evidence of Garnett’s behavior toward the burglary suspect
would have presented an incomplete picture of how officers obtained a search warrant for
Garnett’s home and ultimately discovered the firearm, ammunitio n , a n d m a r i j u a n a
resulting in the criminal charge s. Nor was the evidence of Gar nett’s behavior unfairly
prejudicial. Evidence is unfairly prejudicial when it persuades by illegitimate means. State
v. Kendell , 723 N.W.2d 597, 609 (Minn. 2006). Nothing in the record sugg ests that
evidence of Garnett’s behavior was so inflammatory or outrageou s so as to persuade by
illegitimate means; rather, some or many members of the jury co uld have believed

8
Garnett’s behavior toward the suspected burglar was reasonable or justified given that the
suspect had allegedly broken into Garnett’s home. See Griller, 583 N.W.2d at 742 (noting
that district courts have “great latitude” in their evidentiary decisions).
But Garnett contends that the district court’s reliance on Griller was misplaced.
According to Garnett, it was unnecessary for the jury to hear about his behavior toward the
suspected burglar because the offi cers’ observations regarding marijuana would have
provided enough context for the jury to understand the police investigation. We disagree.
Garnett’s behavior toward the suspected burglar is what resulte d in police detaining him,
and then seeing a large amount of cash in h is pocket, and smelling the o dor of marijuana
on his person. In short, Garnett’s own actions toward the suspected burglar initiated police
officers’ suspicion of Garnett. Accordingly, it was not an abuse of discretion for the district
court to determine that this context was important for the jury to understand.
Garnett further argues that his case is similar to State v. Strommen, a case in which
the supreme court concluded an i ndividual’s testimony that she participated in a robbery
because of violent behavior exhibited by the defendant was irre levant and overly
prejudicial. 648 N.W.2d 681, 686-87 (Minn. 2002). Garnett con tends that the reason he
charged at the burglary suspect was not relevant to show why po lice had a basis to obtain
a search warrant. But again, Garnett’s behavior toward the bur glary suspect is what
initiated police suspicion. Further, district courts are in th e best position to evaluate
whether evidence is prejudicial i n nature, and we generally def er to a district court’s
evidentiary ruling. State v. Diggins, 836 N.W.2d 349, 357 (Minn. 2013). For the reasons

9
set out above, the district court did not exceed its broad disc retion by admitting evidence
of Garnett’s behavior toward the suspected burglar.
II. The district court did not a buse its discretion by allowing t h e s t a t e t o p l a y
recorded jail calls to impeach B.G.

Garnett also contends that the district court abused its discre tion by allowing the
state to impeach B.G.’s testimony by playing recordings of jail calls during
recross-examination. Nothing in his redirect, Garnett maintains, opened the door to allow
playing the jail calls in their entirety. Again, we review evidentiary decisions for an abuse
of discretion. Amos, 658 N.W.2d at 203.
Any party may impeach a witness’s credibility. Minn. R. Evid. 607. Impeachment
can take many forms, including using evidence of bias or prejud ice or a witness’s prior
statements. Minn. R. Evid. 613, 616. But a party may only use extrinsic evidence of a
prior statement when a witness has been given an opportunity to explain or deny the prior
inconsistent statement and the other party has also been given the opportunity to question
the witness about the statement. Minn. R. Evid. 613(b). And “ opening the door” occurs
when a party introduces certain material, creating a right for the opposing party to respond
with otherwise inadmissible material. 6 State v. Guzman , 892 N.W.2d 801, 814 (Minn.
2017). The doctrine “is essen tially one of fairness and common sense, based on the
proposition that one party should not have an unfair advantage . . . and that the factfinder
should not be presented with a m isleading or distorted representation of reality.” State v.

6 The district court did not rule the jail calls inadmissible; rather, the state agreed to not use
them as substantive evidence during its case-in-chief because t hey were discovered and
disclosed in an untimely fashion.

10
Valtierra, 718 N.W.2d 425, 436 (Minn. 2006). To determine whether B.G.’ s testimony
“opened the door” to allow the state to play the jail calls for impeachment purposes, we
turn to B.G.’s testimony about the jail calls.
During direct examination, B.G. admitted that she discussed the gun and the search
of the home during several jail c alls between her and Garnett a nd that she apologized to
Garnett for leaving her gun at his house. This testimony opene d the door for the state to
question B.G. about the jail calls. And during cross-examination, the state questioned B.G.
about specific statements she made during jail calls with Garnett, including comments she
made regarding fingerprints on the handgun and Garnett accompanying her to a gun range.
B.G. attempted to explain her jail call statements. On redirect, Garnett’s counsel referenced
the state’s use of “a few snippe ts” of the jail calls, and allo wed B.G. to explain what she
said in the jail calls. This characterization of the state’s use of “a few snippets” of the jail
calls opened the door for the state to play the jail calls in their entirety.
Given this back-and-forth regarding the jail calls, the district court did not abuse its
discretion by ruling that the state could play redacted recorded versions of relevant jail calls
for the jury during recross-exam ination. The jail call recordi ngs were admissible for
impeachment purposes as evidence of both a prior inconsistent statement and evidence of
bias. Minn. R. Evid. 613, 616. Before the jail calls were played, the state questioned B.G.
about her comments and gave her the opportunity to explain or deny them. Only after she
was given this opportunity did the state play the jail calls. Minn. R. Evid. 613(b). Further,
the jail call recordings served as evidence that, because of he r relationship with Garnett,
B.G.’s testimony could be biased. Minn. R. Evid. 616. Because the jail call recordings

11
were admissible for impeachment purposes based on B.G.’s testimony and the reference to
the state playing “a few snippets” of the jail call recordings, it was not an abuse of discretion
for the district court to allow th e state to play the recording s so that the jury would know
the context of B.G.’s statements within the jail calls.7
III. The district court did no t plainly err by failing to sua sponte direct the state to
stop playing the jail calls.

Finally, Garnett argues that it was plain error for the district court to allow the state
to continue playing recordings o f jail calls containing potenti ally prejudicial information
that the state may not have red acted. Specifically, Garnett co ntends that the recordings
played for the jury contained phrases like “felon,” “parole officer,” “do my time,” and “I’ll
beat this on appeal.” Garnett did not object on this point at trial. We generally do not
consider issues not raised before the district court. Roby v. State , 547 N.W.2d 354, 357
(Minn. 1996). But we will consider an issue if it constitutes plain error. Griller, 583
N.W.2d at 740. To establish plain error, a defendant must show error that is plain which
affects their substantial rights.8 Id. If a defendant “fails to establish that the claimed error

7 Garnett contends that the jail calls should have been played d uring cross-examination,
rather than recross. Garnett is perhaps correct that it may have been more prudent to play
the jail calls during cross-examination. But because Garnett’s counsel further opened the
door to playing the recording of the jail calls during redirect when he referenced the state
as quoting “a few snippets” of the jail calls, it was not an abuse of discretion for the district
court to allow the state to play them during recross. Additionally, Garnett correctly notes
that at trial, the state argued that the evidence was admissibl e for impeachment purposes
under rule 608(b), which only applies to a specific bad act tha t is relevant to showing
untruthful character. But the record does not indicate that th e district court exclusively,
and erroneously, relied on rule 608(b) when allowing the state to play the jail calls.
8 If plain error affecting substantial rights is established, th is court determines if it should
address the error to ensure the “fairness and integrity of the judicial proceedings.” Griller,
583 N.W.2d at 740.

12
affected his substantial rights, [this court] need not consider the other factors.” State v.
Goelz, 743 N.W.2d 249, 258 (Minn. 2007).
Here, Garnett bears the burden of demonstrating that the allege d error affected his
substantial rights, meaning that he must show “there is a reaso nable likelihood that the
absence of the error would have had a significant effect on the jury’s verdict.” State v.
Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted). To evalu ate the likelihood
that the error significantly affected the verdict, we consider factors including “the strength
of the [s]tate’s case, the pervasiveness of the error, and whet her the defendant had an
opportunity to respond.” State v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010).
We conclude that any error in allowing the state to continue pl aying the jail call
recordings did not affect Garnett’s substantial rights. First, the jury did not have transcripts
of the jail call recordings during the trial, and the alleged prejudicial statements contained
in the recordings are not clearly and distinctly audible. In f act, the approximately four
potentially prejudicial references are buried in jail calls las ting roughly 32 minutes.
Additionally, the state presente d significant evidence against Garnett, including officers’
testimony about finding the hand gun and ammunition in his home and testimony that
Garnett was the major contribu tor to DNA found o n the handgun a nd the magazine.
Further, any error in playing the jail call recordings was not pervasive. The jail call
recordings were played one time during recross-examination of a defense witness. And
although the state referenced statements made in the jail calls during its closing arguments,
the references were in the context of B.G.’s credibility and we re very brief. Finally, we
note that Garnett did not object to the recordings during trial or seek a curative instruction

13
after it was played. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (noting that
failing to object or seek a curative instruction weighs against r e v e r s a l ) . A l l o f t h e s e
considerations, taken together, support our conclusion that any error in playing the jail call
recordings did not affect Garnett’s substantial rights.
In sum, the district court did not abuse its discretion by admi tting evidence of
Garnett’s behavior toward the suspected burglar and by allowing t h e s t a t e t o p l a y t h e
recorded jail calls to impeach B.G. Further, any error by the district court in failing to sua
sponte stop the jail calls did not affect Garnett’s substantial rights.9
Affirmed.

9 Because we conclude that Garnett’s identified errors are not i n fact errors, we do not
address his argument regarding the cumulative effect of the alleged errors.