State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0896

State of Minnesota,
Respondent,

vs.

Patrick Lamar Newsom, Jr.,
Appellant.

Filed April 20, 2020
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-18-17385

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi L. Proulx, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions of first -degree criminal sexual conduct and
unlawful possession of a firearm. He argues that (1) the district court abused its discretio n

2
by admitting a video of the victim’s forensic interview as a prior consistent statement ,
(2) the district court plainly erred by admitting other out-of-court statements, and (3) the
evidence was insufficient to support his unlawful-possession conviction. We affirm.
FACTS
Respondent State of Minnesota charged appellant Patrick Lamar Newson, Jr., 1 with
one count of first-degree criminal sexual conduct and two counts of second-degree criminal
sexual conduct. The complaint alleged that, in 2015, Newson engaged in numero us
instances of sexual penetration with his then 12 -year-old nephew. It also alleged that,
starting in 2016, Newson had sexual contact with two of his cousin’s sons who were under
the age of 13. The state later amended the complaint to add a charge of unlawful possession
of a firearm.
The following facts were established at trial. In June 2018, Newson’s former
boyfriend, A.F., called Newson’s cousin . A.F. informed Newson’s cousin that he saw
inappropriate videos and photos on Newson’s phone. The photos showed the private parts
of her sons, K.W. and X.W. The video showed Newson sexually penetrating a third boy.
Newson’s cousin questioned her sons; both admitted that Newson had taken photos of their
private parts while they were traveling together on an airplane.

1 The captions in the district court and this court identify appellant by the last name
“Newsom.” See Minn. R. Civ. App. P. 143.01 (indicating that the title of an action shall
not be changed on appeal). But appellant spells his last name “Newson” in his pro se
supplemental brief, and the parties used that spelling during the trial. Therefore, we use
that spelling in this opinion.

3
Newson’s cousin eventually told Newson’s sister about the allegations, suspecti ng
that the third boy was the sister’s son, N.J. Newson’s sister confronted N.J. about the
alleged videos and photos. After some hesitation, N.J. indicated that there had been a
video, but he refused to provide any details. The sister brought N.J. to CornerHouse, a
children’s advocacy center. A forensic interviewer questioned N.J., who stated that
Newson had engaged in oral and anal sex with him three years earlier.
Newson’s cousin and sister contacted the police. Officers searched Newson’s
apartment, seizing numerous items, including various electronic devices. During the
search, the police found a handgun in a bag on a shelf near the top of Newson’s closet.
Newson was not permitted to possess a firearm because of a prior conviction.
The case proceeded to a one-week jury trial. At the outset, defense counsel objected
to the state’s proposed admission of the video of the CornerHouse interview as a prior
consistent statement, arguing that N.J.’s credibility had not yet been challenged. The
district court deferred ruling on the issue. After N.J. testified, the state renewed its request
to admit the C ornerHouse video. Defense counsel again objected, stating that he had not
challenged N.J.’s credibility and that the video was not a consistent statement because it
was more detailed than N.J.’s actual testimony. The district court granted the state’s
request but redacted portions of the video at defense counsel’s request.
Defense counsel also objected to the admission of A.F.’s out-of-court statements to
Newson’s cousin about the photos and video on Newson’s phone. The state argued that
the statements were not offered to show the truth of the matter asser ted, but rather to show
why Newson’s cousin asked her children about the allegations. Defense counsel contended

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that the statements were unfair ly prejudicial. The district court admitted the statement s,
reasoning that the y were offered to show “what prompted the domino e ffect in this case
and why [Newson’s cousin] initially confronted her children.”
N.J. testified that Newson engaged in sexual acts with him in 2015, when he was 12
years old, at Newson’s apartment. He stated that Newson performed oral sex on him once
and had anal sex with him on two separate occasions. N.J. also acknowledged being
interviewed at CornerHouse in 2018, after his mother found out about the incidents. On
cross-examination, N.J. admitted that he did not tell his mother about the incidents when
they occurred, initially told his mother nothing happened when she inquired, and did not
report the abuse to a doctor.
The CornerHouse interviewer testified, and the redacted video was played for the
jury. Among other things, N.J. told the interviewer that Newson licked his “butt,” tried to
convince N.J. to perform oral sex on him, performed oral sex on N.J. multiple times,
recorded multiple videos of their sexual acts, and took pictures of them showering together.
Both K.W. and X.W. testified that they saw Newson holding a handgun in his
apartment. X.W. described the firearm as silver and black, and testified that he told the
police that Newso n kept it in a green Nike bag at the top of his closet. The officer who
found the handgun testified that he found it in a white Lacoste bag near the top of Newson’s
closet. The firearm, which was admitted as evidence, is silver and black.
A forensic scientist at the Minnesota Bureau of Criminal Apprehension tested DNA
from the firearm and Newson’s DNA sample. Testing of the firearm revealed a mixture of
three or more individuals and a partial major male profile that matched Newson. The

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scientist testified that the partial profile matched approximately one in 2.7 million members
of the general population.
Newson denied engaging in sexual conduct with any of the boys. And he testified
that the handgun belonged to another person, T.D., who had a license to carry it and was
living with him at the time the police searched his apartment. Newson claimed that K.W.
and X.W. knew about the firearm because T.D. showed it to them . A receipt entered as
evidence shows that T.D. purchased the firearm in 2013.
The jury found Newson guilty of first-degree criminal sexual conduct and unlawful
possession of a firearm. But it acquitted him on both counts of second-degree criminal
sexual conduct. Newson appeals.
D E C I S I O N
I. The district court did not abuse its discretion in a dmitting the video of N.J.’s
forensic interview as a prior consistent statement.
Appellate courts review a district court’s evidentiary ruling for an abuse of
discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997). A defendant challenging
the admission of evidence must show that the district court abused its discretion and that
he was prejudiced as a result. Id. at 907.
Hearsay is an out-of-court statement that is offered in evidence to prove the truth of
the matter asserted. Minn. R. Evid. 801(c). Such statements are g enerally inadmissib le.
Minn. R. Evid. 802. An out-of-court statement is not hearsay when it is a prior consistent
statement. Minn. R. Evid. 801(d)(1)(B). A prior statement is consistent when: (1) the
declarant testifies at the trial, (2) the declarant is subject to cross-examination concerning

6
the statement, and (3) the statement is “consistent with the declarant’s testimony and
helpful to the trier of fact in evaluating the declarant’s credibility as a witn ess.” Id. But
prior statements are not automatically admissible under the rule. Rather, the district court
must make a threshold determination that the witness’s credibility has been challenged ,
and “the statement must bolster the witness’ credibility w ith respect to that aspect of the
witness’ credibility that was challenged.” Nunn, 561 N.W.2d at 909 ; see State v. Bakken,
604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 23, 2000) (following
Nunn). We have indicated that “videotaped sta tements of children who allegedly have
suffered sexual abuse ,” such as the CornerHouse video, are commonly admitted as prior
consistent statements. State v. Wembley, 712 N.W.2d 783, 789 (Minn. App. 2006), aff’d,
728 N.W.2d 243 (Minn. 2007).
It is undisputed that the out -of-court declarant, N.J., testified at trial. But Newson
contends that the remaining requirements for admission of a prior consistent statement
were not satisfied. We address each in turn.
A. Challenge to Credibility
At trial, the prosecutor argued that defense counsel had challenged N.J.’s credibility
during his opening statement by characterizing the accusations as rumors created “because
the family was uneasy that we had a flamboyant gay black man.” Newson aptly observes
that statements of counsel are not evidence. But defense counsel did more than comment
on N.J.’s credibility during his opening statement. Defense counsel’s cross-examinatio n
prompted N.J. to admit that he did not tell his mother about the incidents of abuse for three
years, initially denied that anything had happened when his mother confronted him with

7
A.F.’s report, and never sought medical treatment. Implicit in this line of questioning is
the suggestion that N.J. fabricated the abuse. We are satisfied that N.J.’s credibility was
challenged.
B. Subject to Cross-Examination
Newson argues that N.J. was not subject to cross -examination regarding his
CornerHouse interview because the district court did not rule on the admissibility of the
video until after N.J. ’s testimony. According to Newson, this situation created an “unfair
dilemma”; cross -examining N.J. before knowing whether and how much of the video
would be admitted made it difficult to determine how to combat the prejudicial evidence.
He also points o ut that he would have had to serve N.J. with a subpoena in order to recall
him as a witness. We are not persuaded.
As noted above, a prior consistent statement cannot be admitted unless the witness’s
credibility has been challenged. Nunn, 561 N.W.2d at 909. Accordingly, the district court
could not have ruled on the admissibility of the CornerHouse video until after N.J. testified.
Defense counsel expressly questioned N.J. about the CornerHouse interview during cross-
examination. Although Newson may have faced a difficult situation in determining how
to cross-examine N.J. about the interview before the video was admitted, that difficulty is
inherent in the rule regarding prior consistent statem ents. It does not change the fact that
N.J. was subject to cross-examination concerning the statement.
C. Consistency with Trial Testimony
Consistency does not require a trial witness to recite his prior statement verbatim.
Bakken, 604 N.W.2d at 109. It is sufficient if the prior statement simply is “reasonab ly

8
consistent” with the trial testimony. State v. Zulu, 706 N.W.2d 919, 924 (Minn. App. 2005)
(quoting In re Welfare of K.A.S. , 585 N.W.2d 71, 76 (Minn. App. 1998)). But a p rior
statement is not reasonably consistent with trial testimony when the “inconsistencies
directly affect the elements of the criminal charge.” Bakken, 604 N.W.2d at 110. In
Bakken, the child complainant’s prior statements to police contained additional details that,
if believed by the jury, would escalate the criminal conduct from third -degree to first -
degree criminal sexual conduct. Id. This court concluded that the district court erred by
admitting the prior statements because the “inconsistencies were not minor discrepa ncies. ”
Id.
Newson contends that N.J.’s statements to the CornerHouse interviewer are not
consistent with his trial testimony because they contain additional allegations: that Newson
licked N.J.’s “butt,” performed oral sex on him multiple times, made multiple videos of the
sexual acts, took pictures while they were in the shower together, and asked N.J. to perform
oral sex on him. He also takes issue with the statements elicited by the forensic
interviewer’s background questions.
We are not persuaded that N.J.’s statements to the CornerHouse interviewer and his
trial testimony diverged to such an extent that they were not reasonably consistent. To
convict Newson of first-degree criminal sexual conduct , the state had to prove that he
engaged in sexual penetration or sexual contact with a person who was under the age of 13
and more than 36 months younger than him. Minn. Stat. § 609.342, subd. 1(a) (2014). N.J.
established those elements (except for Newson’s age) when he testified a s to his own age
and that Newson engaged in oral and anal sex with him. The additional details that N.J.

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described in the CornerHouse video, if true, did not raise Newson’s conduct to a higher
level of criminality. For the same reason, the inclusion of the forensic interviewer’s
background questions was not error, as that information did not affect the elements of the
criminal charges.
Because all the requirements of rule 801(d)(1)(B) were satisfied , the district court
did not abuse its discretion in admi tting the CornerHouse video as a prior consistent
statement.
II. The district court did not plainly err in admitting A.F. ’s out-of-court
statements to Newson’s cousin.
Newson challenges the admission of his cousin’s testimony that A.F. told her that
he saw a video of Newson sexually penetrating a boy. At trial, defense counsel objected
to this statement as unfairly prejudicial under Minn. R. Evid. 403. He now contends, for
the first time, that the statement is inadmissible hearsay.
Generally, “[a] defendant’s objection to the admission of evidence preserves review
only for the stated basis for the objection.” State v. Vasquez, 912 N.W.2d 642, 649 (Minn.
2018). But we may review otherwise forfeited arguments for plain error. Id. at 650. To
obtain relief based on plain error, a defendant must demonstrate that (1) there was an error,
(2) the error was plain, and (3) the error affected substantial rights. State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). If the defendant establishes all three prongs of the plain-
error test, we will order a new trial only if it is “necessary to ensure fairness and the
integrity of judicial proceedings.” Id. at 742. But if we conclude that the defendant has

10
failed to satisfy any one of the three prongs, we need not consider the other plain -error
requirements. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
We note the inherent difficulty of establishing plain error when the challenge is
based on hearsay. Our supreme court has stated that the “complexity and subtl ety of the
operation of the hearsay rule and its exceptions make it particularly important that a full
discussion of admissibility be conducted at trial.” State v. Manthey, 711 N.W.2d 498, 504
(Minn. 2006). Without an objection at trial, the state does n ot have the opportunity to
establish the admissibility of the statements “under one of the numerous exceptions to the
hearsay rule.” Id.
Here, we need not consider whether admission of A.F.’s statement was error that
was plain because Newson cannot show t hat the claimed error affected his substantial
rights. First, the evidence against Newson was strong. N.J. testified that Newson sexually
penetrated him. The CornerHouse video and testimony from the forensic interviewer
corroborated this finding. Secon d, the record does not convince us that the jury gave the
challenged statement particular weight. Newson’s cousin also testified that A.F. told her
he saw photos of K.W.’s and X.W.’s private parts, describing those out-of-court statements
in more detail. And the prosecutor emphasized A.F.’s statements regarding the photos
during his closing argument, and did not mention the statements regarding the video of N.J.
But the jury acquitted Newson on the counts related to K.W. and X.W. Based on the record,
the jury clearly based its guilty verdict for first -degree criminal sexual conduct on N .J.’s
testimony, and not on Newson’s cousin ’s cursory reference t o A.F.’s out -of-court
statement.

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In sum, the record convinces us that there is no reasonable likelihood that Newson’s
cousin’s brief reference to A.F.’s out -of-court statement had a significant impact on the
verdict.2 Newson is not entitled to relief on evidentiary grounds.
III. Sufficient evidence supports Newson’s unlawful-possession conviction.
When e valuating a sufficiency-of-the-evidence challenge, we “carefully examine
the record to determine whether the facts and the legitimate inferences drawn from them
would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Boldman, 813 N.W.2d
102, 106 (Minn. 2012). We view the evidence in the light most favorable to the verdict
and will not overturn the verdict if the jury could reasonably have found the defendant
guilty of the charged offense, consistent with the presumption of innocence and the state’s
burden of proof beyond a reasonable doubt. Bernhardt v. State , 684 N.W.2d 465, 476 -77
(Minn. 2004).
A conviction based on circumstantial evidence is subject to heightened scrutiny.
State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). The heightened standard applies
when direct evidence of guilt on a particular element is not sufficient to support the verdict
by itself. Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017).

2 Alternatively, Newson contends that A.F.’s statements were inadmissible under Minn. R.
Evid. 403 because their probative value was substantially outweighed by the danger of
unfair prejudice. Because we have already established that the out -of-court statements did
not prejudice Newson, we need not consider this alternative ground for excluding the
evidence.

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We apply a two -step analysis when reviewing the sufficiency of circumstantial
evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). The first step is to
identify the circumstances proved. Al-Naseer, 788 N.W.2d at 473. In doing so, we defer
to the jury’s acceptance of the proof of those circumstances and rejection of conflicting
evidence. Id. The second step is to examine the inferences that might be drawn from the
circumstances proved. Id. at 473-74. Circumstantial evidence is sufficient if there are “no
other reasonable, rational inferences that are inconsistent with guilt.” Id. at 474 (quotatio n
omitted). We give no deference to the jury’s choice between reasonable inferences. Id.
A person may not possess a firearm if he has been convicted of a crime of violence.
Minn. Stat. § 624.713, subd. 1(2) (2016).3 “Possession of a firearm may be proved through
actual or constructive possession.” State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015).
Actual possession requires proof that the defendant physically had the firearm on his
person. State v. Smith , 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn.
Jan. 16, 2001). Constructive possession requires proof that either (1) the firearm was found
“in a place under [the] defendant’s exclusive control to which other people did not normally
have access,” or (2) if the firearm was found in a place to which other people had access,
“there is a strong probability (inferable from other evidence) that [the] defendant was at
the time consciously exercising dominion and control over it.” Salyers, 858 N.W.2d at 159
(quoting State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975)). “Proximity is an important

3 Newson stipulated at trial that he had a prior conviction that made him ineligible to
possess a firearm.

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consideration in assessing constructive possession ,” and such possession may be shared.
Smith, 619 N.W.2d at 770.
The state proved the following circumstances at trial. K.W. and X.W. saw Newson
holding a silver and black handgun in his apartment. X.W. saw Newson place the handgun
in a bag and place the bag at the top of his closet. The police found a silver and black
handgun in a bag near the top of Newson’s closet. The handgun matched the descriptio n
the two boys gave to the police. The bag also contained pornography. DNA obtained from
the handgun reveals a partial major male profile that matches Newson a nd approximately
one in every 2.7 million people. A receipt shows T.D. purchased the handgun in 2013.
Newson does not dispute that the circumstances proved support the rational
inference that he possessed the firearm. We agree. But he contends that the circumstances
also support a rational inference that he did no t exercise dominion and control over the
firearm. This argument is unavailing.
We consider the totality of the circumstances in determining whether constructive
possession has been proved. State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000),
review denied (Minn. June 13, 2000). Newson’s reliance on the handgun receipt to support
his contention that the circumstances proved are consistent with rational inferences other
than guilt ignores the totality of the circumstances. The firearm’s presence in a closet in
Newson’s apartment is strong evidence that Newson constructively possessed it . The fact
that K.W. and X.W. saw Newson holding the firearm in the apartment and X.W.’s
testimony that he saw Newson put the firearm into a bag that he placed at the top of the
closet—where police found it —further demonstrate Newson’s constructive possession .

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Two people may have joint constructive possession of a handgun. Accord ingly, t he fact
that T.D. originally purchased the handgun, when viewed in light of all the circumstances,
does not support a reasonable inference that Newson did not possess the handgun.
Newson’s arguments regarding the DNA e vidence likewise do not persuade us that
the circumstances proved support a reasonable inference other than guilt. Newson notes
that the DNA profile from the handgun matched Newson and approximately one in 2.7
million people. He contends that more than 100 random people in the United States would
match the DNA profile found on the firearm. But the firearm was located in a bag in
Newson’s apartment, not in public where anyone could have touched it. This case is not
like State v. Harris, where the defendant’s conviction was reversed because , among other
things, approximately 25% of the general population could not be ex cluded as a source of
the DN A on the firearm. 895 N.W.2d 592, 603 (Minn. 2017) . In contrast, t he DNA
evidence here rules out all but 100 members of the total United States population as
contributors. We are satisfied that the DNA evidence, when considered in context of all
the circumstances proved, does not support a rational inference inconsistent with guilt.
When viewing the totality of the circumstances proved, the only reasonable
inference is that Newson consciously exercised dominion and co ntrol over the firearm.
The evidence is sufficient to support Newson’s unlawful-possession conviction.
Affirmed.