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This opinion will be unpublished and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
A19-0128

State of Minnesota,
Respondent,

vs.

Sandra Kay Kouba,
Appellant.

Filed December 23, 2019
Affirmed; motion granted
Smith, John, Judge*

Polk County District Court
File No. 60-CR-17-1712

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant); and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant Sandra Kay Kouba’s conviction of felony domestic assault
because the district court did not commit plain error by admitting (1) the victim’s recorded
statements as prior consistent statements, or (2) testimony that appellant did not answer the
door when the police came to her residence.
FACTS
T.K. received a phone call from E.H., his grandmother. E.H. was crying, her voice
was shaky, and she said “I’m very scared. I don’t know what to do. Sand[ra] just tried to
kill me.” Appellant Sandra Kay Kouba is E.H.’s daughter. T.K. told his wife to call 911
and drove to E.H.’s home. When T.K. arrived , E.H. was still crying and told him that
Kouba “just kept hitting me.” T.K. observed bruises on E.H. that appeared t o be fresh.
E.H. told him that Kouba had returned to her home, which was located a few houses down
the road.
Polk County Sheriff’s Deputy Thomas Brault responded to the scene. Deputy Brault
immediately noticed bruising on E.H.’s arms that appeared to be the result of her trying to
protect her body with her arms. He asked E.H. what had happened and she responded “[i]t
happened so fast that I don’t really know ,” and informed Deputy Brault that she had
dementia. When Deputy Brault asked for more details , E.H. stated that she had done
something that Kouba didn’t like and Kouba started hitting her. When asked if Kouba used
closed fists, E.H. responded yes. E.H. also told Deputy Brault that Kouba drinks a lot and

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had been drinking, but that she was unsure if that had anything to do with why they were
fighting. E.H. was later transported to the hospital for medical treatment.
After speaking with E.H., Deputy Brault walked to Kouba’s house. He repeatedly
knocked on the door and identified himself as “Sheriff’s Office.” He could hear a female
voice inside the home, but no one answered the door. He then applied for and was granted
a search warrant. When he returned to the residence, he again knocked repeatedly and ,
again, received no answer. Another deputy then knocked down the door and Deputy Brault
entered the residence and located Kouba asleep in her bedroom. Deputy Brault indicated
that it appeared Kouba had been consuming alcohol and that he could smell a strong odor
of alcohol.
Respondent State of Minnesota charged Kouba with one count of felony domestic
assault. On September 17 -18, 2018, the district court held a jury trial. 1 E.H. testified at
trial. She testified that Kouba was her daughter, but could not identify her in the courtroom.
E.H. testified that she did “not really” know what she was there to testify about, but later
stated that Kouba had asked her for money, and when she said no Kouba “beat [her] up.”
She indicated that Kouba hit her “with her fists” and that after , Kouba left and went
somewhere else. E.H. had difficulty recalling other details about the incident, including
whether she went to the hospital or spoke to law enforcement. Deputy Brault also testified.
During his testimony, the state played a portion of the recor ded statement that E.H. gave
to him immediately after the incident.

1 Prior to trial, Kouba stipulated that she had two previous qualified domestic violence -
related offense convictions that enhanced the charge to a felony.

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The jury found Kouba guilty. The district court sentenced Kouba to 15 months in
prison, stayed execution of the sentence for five years, ordered her to serve 90 days in jail,
and placed her on probation.
D E C I S I O N
I. The district court did not commit plain error by admitting E.H.’s prior
statement.

Kouba argues that the district court erred by admitting E.H.’s recorded statement as
a prior consistent statement under Minn. R. Evid. 801(d)(1)(B). Kouba concedes that she
did not object to the admission of the statement at trial and asserts that, therefore, the plain
error standard of review applies.
The United States Supreme Court has established a three-prong
test for plain e rror, requiring that before an appellate court
reviews an unobjected-to error, there must be (1) error; (2) that
is plain; and (3) the error must affect substantial rights. If these
three prongs are met, the appellate court then assesses whether
it should address the error to ensure fairness and the integrit y
of the judicial proceedings.

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the third prong, Kouba bears
the burden of establishing that the error had a significant effect on the jury’s verdict. State
v. Horst, 880 N.W.2d 24, 38 (Minn. 2016).
Kouba argues that the district court committed plain error by admitting E.H.’s
recorded statement to Deputy Brault because it constitutes hearsay. Hearsay, an out -of-
court statement offered “to prove the truth of the matter asserted,” is generally
inadmissible. Minn. R. Evid. 801(c), 802. But a prior out-of-court statement is not hearsay
and is therefore admissible if “[t]he declarant testifies . . . and is subject to cross -

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examination concerning the statement, and the statement is . . . consistent with the
declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s
credibility.” Minn. R. Evid. 801(d)(1)(B).
In considering whether to admit a prior consistent statement, the district court
determines whether the witness’ s credibility has been challenged and whether the prior
statement would “bolster the witness’ [s] credibility with respect to that aspect of the
witness’s credibility that was challenged.” State v. Fields , 679 N.W.2d 341, 348 (Minn.
2004) (quotation omitted). Trial testimony and prior statements “need 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). Rather, the prior statements must be “reasonably consistent”
with the declarant’s trial testimony. In re Welfare of K.A.S. , 585 N.W.2d 71, 76 (Minn.
App. 1998). But when the inconsistencies “directly affect the elements of the criminal
charge,” a prior statement is not admissible as a prior consistent statement. Bakken, 604
N.W.2d at 110.
Kouba argues that the district court committed plain error by determining that the
recorded statement was consistent with E.H.’s trial testimony. Specifically, she argues that
two statements in the recorded statement are inconsistent with the trial testimony. First,
she notes that at trial E.H. testified that Kouba became upset and hit her after E.H. refused
to give Kouba money, whereas in the recorded statement E.H. said that they were fighting
and Kouba hit her because E.H. did something she did not like. While these are not
identical statements, they are not inconsistent. The statements “need not be verbatim,” but
rather need be reasonably consistent. Id. at 109. In both statem ents E.H. indicates that

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Kouba became upset with her and hit her, causing the injuries. Her statement at trial
specified why Kouba became upset —because E.H. refused to give her money —but this
additional detail does not render the statements materially different.
Kouba next asserts that E.H.’s statement in the recording that Kouba had been
drinking and drinks a lot is inconsistent with her trial testimony. At trial, E.H. did not
testify as to whether Kouba had been drinking. But as noted above, an impo rtant
consideration is whether the inconsistencies “directly affect the elements of the criminal
charge.” Id. Here, that did not occur. And Deputy Brault testified that when he
encountered Kouba it appeared she had been drinking and that he detected a strong odor of
alcohol, so any prejudice resulting from the statement would be minimal because the jury
properly heard that information from Deputy Brault.
On this record, the district court did not commit plain error by admitting the
recorded statement. The recorded statement and E.H.’s trial testimony were reasonably
consistent, and the differences in the statements did not directly affect the elements of the
charged crime. The information that directly affected the elements of the charge of
domestic assault, namely that Kouba was the individual who assaulted E.H., was consistent
in the statements. We therefore discern no plain error.
II. The district court did not commit plain error by admitting testimony that
Kouba did not answer the door for law enforcement.

Kouba argues that the district court committed plain error by admitting evidence
that she “refused to allow the police to enter her home without a warrant.” Kouba did not
object to the testimony at trial, and therefore the plain -error test applies and Kouba must

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show error, that is plain, and affects her substantial rights. Griller, 583 N.W.2d at 740. An
error is plain if it “contravenes caselaw, a rule, or a standard of conduct.” State v. Webster,
894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted).
Kouba argues that the district court plainly erred by allowing Deputy Brault to
testify that she “refused to allow the police to enter her home without a warrant.” It is a
due-process violation to comment on a “defendant’s failure to consent to a warrantless
search.” State v. Jones, 753 N.W.2d 677, 687 (Minn. 2008). But Deputy Brault did not
testify that Kouba failed to consent to a warrantless search. Rather, Deputy Brault testified
that he repeatedly knocked on Kouba’s door and that he could hear a female voice inside
the residence but no one answered the door. The prosecutor similarly stated during closing
arguments that she did not answer the door when Deputy Brault knocked. Neither
statement involves law enforcement requesting to perform a search or Kouba refusing to
consent to a search.
Moreover, Deputy Brault made the statement while providing a general narrative of
events. He stated that no one answered the door, but he did not suggest that Kouba was
actively refusing to do so. Indeed, he stated that it sounded like the female inside the home
was talking to someone on the phone. The statement does not suggest that Kouba was
intentionally refusing to speak with the police. Deputy Brau lt therefore did not
impermissibly comment on Kouba’s failure to consent to a warrantless search because no
search was ever requested. Accordingly, the district court did not commit plain error by
admitting the statement.

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III. Kouba’s pro se arguments do not entitle her to relief.
Kouba filed a pro se supplemental brief that contains nine claims for relief and
includes an eighty -three page addendum. On July 17, 2019, the state filed a motion to
strike appellant’s pro se supplemental brief and adde ndum on the grounds that it was too
long, did not comply with applicable procedural rules, and contained information outside
the record. After reviewing the record, we grant the state’s motion to strike the addendum.
The addendum contains documents that were not filed with the district court and are
therefore not part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (stating that
the “documents filed in the trial court, the exhibits, and the transcripts of the proceedings,
if any, shall constitute the record on appeal”).
Finally, none of the nine issues raised entitle Kouba to relief. The first four claims
relate to her assertion that there is “no support” for various testimony from E.H. and Deputy
Brault. But the jury evaluated the credibility of the witness testimony, and we defer to the
jury’s credibility determinations. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013).
Four other claims relate to the exclusion of her testimony and evidence, but she waived her
right to testify and does not argue that the waiver was invalid. And the evidence that she
claims was excluded was never offered for admission to the district court. Kouba’s final
assertion is that she received an inadequate defense because her attorney did not notify her
of a possible plea deal prior to trial, but there is no evidence in the record to support this
argument. We therefore conclude that Kouba is not entitled to relief.
Affirmed; motion granted.