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This opinion will be unpublished and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
A19-1133

State of Minnesota,
Respondent,

vs.

Christopher Lee Rogers,
Appellant.

Filed April 6, 2020
Affirmed in part, reversed in part, and remanded.
Hooten, Judge

Becker County District Court
File No. 03-CR-18-2427

Keith Ellison, Attorney General, Edwin W. Stockmeyer , III, Assistant Attorney General,
St. Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from the judgment of conviction for domestic assault, appellant
Christopher Lee Rogers argues that the district court: (1) abused its discretion by admitting

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the victim’s out-of-court statement as an “excited utterance,” (2) committed plain error by
admitting hearsay statements that the complainant made several months after the charged
incident, and (3) erred in entering judgments of conviction for both counts of domestic
assault for which he was found guilty. We affirm in part, reverse in part, and remand.
FACTS
On November 18, 2018, an officer from the White Earth Police Department
responded to a report of domestic assault (the 2018 incident). Upon arrival at the residence,
the officer spoke with the victim who reported that Rogers, with whom she lived, assaulted
her. The victim stated that during an argument, Rogers got upset, picked up items around
the house, and threw them at her. The victim called her mother and asked to be picked up
from the residence. The victim’s mother told the victim to call the police. Within minutes,
the victim called her mother again, stating that Rogers would not let her call the police and
that he had punched her in the face. The victim’s mother immediately called the police.
Within three minutes of receiving the call from dispatch, an officer arrived at the
victim’s home. The officer’s body camera showed that as he walked through the open
front door, the victim informed him that she “just got beat up.” The footage showed that
the victim’s hand trembled as she lit a cigarette. She then told the officer through sobs that
Rogers pulled her hair, kicked her legs, and punched her in the forehead, left eye, nose, and
in the back of the head. She also admitted that he had been violent with her in the past but
she had not reported those prior incidents. The officer noticed swelling around the victim’s
left eye and that “her nose appeared to be misshaped.”

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Later that evening, law enforcement located and arrested Rogers. Rogers, who had
two prior gross misdemeanor domestic assault convictions, admitted that he and the victim
were in an argument but denied throwing anything at the victim or physically assaulting
her.
The state charged Rogers with one count of felony domestic assault (fear), and one
count of felony domestic assault ( harm), both in violation of Minn. Stat. § 609.2242,
subd. 4 (2018).
At trial, the victim testified that she did not remember what she had said to the
officer and that she did not remember if she had been hit. Although she acknowledged that
Rogers was the only other person present at the home, and that photographic and video
evidence existed of a red mark on her swollen face, the victim testified that she did not
know who hit her and that maybe she had just slipped.
The officer who responded to the victim’s home also testified at trial. He stated that
although there were eggs on the floor, the victim did not have any eggs on her and did not
mention slipping on eggs. The jury was shown the body camera footage that included the
victim’s statements to the officer made within 10 minutes of the argument.
The state presented evidence that, j ust over a week before trial, Rogers and the
victim were involved in another inciden t characterized by the victim as a “domestic” (the
2019 incident), which resulted in the arrest of Rogers. The district court admitted evidence
of the 2019 incident as evidence of domestic conduct admissible under Minn. Stat. § 634.20
(2018). The day after the 2019 incident, the victim met with a second officer for a victim
interview and was shown the body camera footage from the 2018 incident.

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At trial, both the victim and t he second officer testified regarding the 2019 victim
interview. Although the victim claimed that she did not remember the exact events of the
victim interview, the second officer testified that the victim was “very adamant that she
wanted to go to trial .” The second officer noted that the victim appeared “distraught” at
the meeting and was “bandaged up” and “shaken.”
The jury found Rogers guilty on both counts of felony domestic assault. At his
sentencing hearing, the d istrict court imposed a sentence on only one count of felony
domestic assault. The d istrict court did not impo se a sentence on the second count of
domestic assault, but stated that the jury verdict remained. Nevertheless, the warrant of
commitment listed Rogers as standing convicted of both offenses.
This appeal follows.
D E C I S I O N
Evidentiary rulings “rest within the sound discretion of the district court. State v.
Guzman, 892 N.W.2d 801, 812 (Minn. 2017). We will not reverse unless an appellant
demonstrates both an abuse of discretion and resulting prejudice. Id.
I. The district court did not abuse its discretion when it admitted the victim’s
out-of-court statement to the first officer as an “excited utterance.”

Rogers argues that the district court abused its discretion when it admitted the
victim’s statement to the first officer after the 2018 incident under the excited utterance
exception to the hearsay rule because it was not trustworthy and, in the alternative, was not
an excited utterance.

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The rules of evidence generally exclude as hearsay any statement made out of court
and offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c), 802. But there
are numerous exceptions to this rule, including one for excited utterances. Minn. R. Evid.
803(2). A statement is admissible as an excited utterance if: (1) there was “a startling event
or condition,” (2) the statement related to the startling event or condition, and (3) “the
declarant [was] under a sufficient aura of excitement c aused by the event or condition to
insure the trustworthiness of the statement.” State v. Daniels, 380 N.W.2d 777, 782 (Minn.
1986). There are no strict temporal requirements when a district court determines whether
a “sufficient aura of excitement” affe cted the declarant at the time of the statement in
question; thus a court must consider “all relevant factors including the length of time
elapsed, the nature of the event, the physical condition of the declarant, [and] any possible
motive to falsify.” Id. at 782–83.
The district court admitted the victim’s 2018 statement to the first officer under the
excited utterance exception to the hearsay rule because the victim was “under the stress of
the incident that allegedly occurred between her and Defendant” when she spoke with the
first officer.
When considering all relevant factors, we conclude that the district court did not
abuse its discretion by determining that t he victim’s 2018 statement to the first officer
constitutes an excited utterance. The victim’s discussion with the officer occurred after a
stressful and scary event. She told the officer how her hair was pulled, how she had been
kicked, and how she had been punched in the face. The body camera footage shows the
victim searching to find a cigarette and light it, crying, and gingerly touching her nose, jaw,

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and left eye. The officer noticed visible swelling around the victim’s left eye and that “her
nose appeared to be misshaped.” This evidence supports admission under the first two
prongs of the excited utterance analysis. Finally, the officer arrived at the victim’s home
within a few minutes after dispatch received the victim’s mother’s 911 call , and the
victim’s statement occurred only minutes after the officer arrived. Although there is no
specified temporal requirement related to when an individual is under the “aura of
excitement,” this short period of time , and the officer’s observations tha t the victim was
crying and shaken, sufficiently support that the victim was under an “aura of excitement”
so as to assure the “trustworthiness” of her statements and render the evidence admissible.
See Daniels, 380 N.W.2d at 782–83 (determining that a statement made about an hour after
a startling event was still within the “aura of excitement”).
Rogers argues that the victim’s 2018 statement to the first officer did not constitute
an excited utterance because the victim did not make eye contact with the officer (and thus
was lying) and she was not under the “aura of excitement” because Rogers had already left
the residence when the officer arrived. However, it is not necessary that the danger still be
present for a district court to determine that stat ements were made under the “aura of
excitement” as the district court must consider all relevant factors. Not only did the victim
admit at trial that Rogers was the only person in the house when she was hit, but the
exceptionally short period of time that elapsed between the event and the victim’s statement
to the first officer, the intensity of the argument as corroborated by the victim’s mother,
and the victim’s tears and physical condition all support the district court’s determination.

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Therefore, we conclude that the district court did not abuse its discretion when it
determined that the victim’s statement to the officer immediately after the 2018 event was
admissible under the excited utterance exception to the hearsay rule. As we hold that the
2018 statement is admissible, we need address neither prejudice nor the statement ’s
admissibility under the residual exception to hearsay.
II. The district court did not commit plain error when it admitted the victim’s
out-of-court statement regarding the 2019 incident.

Rogers argues that the district court committed plain error when it admitted the
second officer’s testimony relaying the victim’s 2019 statement made to him during an
interview. Rogers only contests the admissibility of the second officer’s statem ents with
regard to the 2019 interview and claims that the second officer’s testimony should be
excluded because it is inadmissible hearsay.
Despite vigorous objections to hearsay throughout the proceeding, Rogers did not
object to the testimony of the o fficer who interviewed the victim following a subsequent
“domestic” with Rogers just over a week before the trial began. See State v. Manthey, 711
N.W.2d 498, 504 (Minn. 2006) (noting that “[t]he complexity and subtlety of the operation
of the hearsay rule and its exceptions make it particularly important that a full discussion
of admissibility be conducted at trial” because “[i]n the absence of an objection, the state
[is] not given the opportunity to establish that some or all . . . statements were admis sible
under one of the numerous exceptions”). Furthermore, Rogers did not move to strike the
second officer’s testimony. Accordingly, we review only for plain error. See Minn. R.
Crim. P. 31.02 (providing that appellate courts may review for plain error even if the issue

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was not brought to the district court’s attention) ; State v. Griller , 583 N.W.2d 736, 740
(Minn. 1998) (stating that appellate courts have discretion to consider plain error affecting
substantial rights).
Under the plain -error test, we will reverse a district court’s decision to admit
testimony only if the appellant can demonstrate that: (1) the district court committed an
error, (2) the error is plain, and (3) the plain error affected the defendant’s substantial rights.
Griller, 583 N.W.2d at 740. “An error is plain if it is clear or obvious, which is typically
established if the error contravenes case law, a rule, or a standard of conduct.” State v.
Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). An error affects a
defendant’s substantial rights “if the error was prejudicial and affected the outcome of the
case.” Griller, 583 N.W.2d at 741. Even if all three elements of plain error are satisfied,
an appella nt also must demonstrate that the error “seriously affects the fairness and
integrity of the judicial proceedings.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).
If any requirement of the plain -error test is not satisfied, the appellate court need n ot
consider the other requirements. State v. Brown , 815 N.W.2d 609, 620 (Minn. 2012).
When a reviewing court assesses plain error in the context of an evidentiary decision, “the
real question . . . is not whether the trial court erred in admitting the evidence, but instead
whether the trial court’s failure to sua sponte strike the testimony or provide a cautionary
instruction was plain error.” State v. Vick, 632 N.W.2d 676, 678 (Minn. 2001).
Therefore, the only issue we need to decide on appeal is wheth er or not the district
court committed plain error when it failed to sua sponte strike the testimony of the second
officer relaying the victim’s statements at the victim interview following the 2019 incident.

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A. The second officer’s statements are admissibl e under Minn. R. Evid.
801 (d)(1)(B).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted
and is admissible only in certain instances. Minn. R. Evid. 801(c), 802. A statement is not
hearsay if it is offered for corroborative purposes, rather than to prove the truth of the matter
asserted. State v. Smith, 384 N.W.2d 546, 548 (Minn. App. 1986), review denied (Minn.
May 29, 1986). Additionally, a statement is not hearsay if, among other things, “[t]he
declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is . . . consistent with the declarant’s testimony and helpful to
the trier of fact in evaluating the declar ant’s credibility as a witness .” Minn. R. Evid.
801(d)(1)(B). However, before a prior consistent statement can be admitted, “the witness’
credibility must have been challenged, and the statement must bolster the witness’
credibility with respect to that aspect of the witness’ credibility that was challenged.” State
v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).
As no hearsay objection was made, the district court did not determine whether or
not the statements were admissible under rule 801(d)(1)(B). Accordingly, this court must
determine if the testimony was admissible and thus not plain error for the district court to
fail to sua sponte strike the testimony. See State v. Hallmark , 927 N.W.2d 281, 294 –95
(Minn. 2019) (examining a hearsay exception when the district court failed to do so).
At trial, the victim testified and was subject to cross-examination regarding both of
her interviews after the 2018 and 2019 incidents. During her testimony, both the state and
defense counsel questioned her regarding her inconsistent statements about the incidents.

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Rogers’ counsel concentrated on her accusations of abuse to the first officer following the
2018 incident and to the second officer following the 2019 incident, in the cross-
examination and closing so as to challenge and undermine the victim’s credibility. After
the victim’s credibility was attacked, and the door was opened regarding testimony related
to the victim’s interview by both parties in their examinations of the victim , the second
officer merely testified in greater detai l regarding the victim’s statements during the
victim’s second interview and about his impressions of the victim at that interview. The
second officer testified that the victim had been shown the body camera footage from the
2018 incident.
As the second officer’s testimony was consistent with th e victim’s testimony
regarding her 2019 interview, and the district court had previo usly ruled that evidence of
that incident was admissible under Minn. Stat. § 634.20, we hold that the second officer’s
testimony is admissible as a prior consistent statement of the victim’s under Minn. R. Evid.
801(d)(1)(B). Therefore, the district court did not commit plain error when it failed to sua
sponte object to the admission of the second officer’s testimony relating to the victim’s
statement at the interview following the 2019 incident.
As we have concluded the di strict court’s failure to sua sponte strike the second
officer’s testimony was not plain error, we need not consider whether the second officer’s
statements prejudiced Rogers. See Brown , 815 N.W.2d at 620 (noting that if any
requirement of the plain-error test is not satisfied, an appellate court need not consider the
other requirements).

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B. The second officer’s statements are also admissible under Minn. R. Evid. 807.
An additional exception to the general prohibition against the admission of hearsay
is the residual exception. Minn. R. Evid. 807. Hearsay is admissible under the residual
exception when the testimony has “circumstantial guarantees of trustworthiness,” and:
[T]he court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative
on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of
justice will best be served by ad mission of the statement into
evidence.

Id.
“The decision to admit hearsay statements under Rule 807 has two steps. First, the
district court must look at the totality of the circumstances to determine whether the hearsay
statement has circumstantial guarantees of trustworthiness.” Hallmark, 927 N.W.2d at 292
(quotation omitted). A district court is to “use a totality of the circumstances test to
determine whether the statement has equivalent circumstantial guarantees of
trustworthiness.” State v. Davis, 820 N.W.2d 525, 537 (Minn. 2012) (quotations omitted).
“The second step . . . requires the district court to determine whether the three enumerated
requirements of Rule 807 are met.” Hallmark, 927 N.W.2d at 293 . Only the
trustworthiness of the victi m’s statements to the second officer made just over one week
before trial regarding the 2019 incident are disputed here.
There is not a defined list of fact ors necessary for a court to consider to decide
whether or not a hea rsay statement has circumstantial guarantees of trustworthiness.
However, the supreme court identified a number of circumstances that might be considered

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among the totality of the circumstances necessary to determine trustworthiness. Davis, 820
N.W.2d at 537. These circumstances include:
[W]hether the statement was given voluntarily, under oath, and
subject to cross -examination and penalty of perjury; the
declarant’s relationship to the parties; the declarant’s
motivation to make the statement; the decla rant’s personal
knowledge; whether the declarant ever recanted the statement;
the existence of corroborating evidence; and the character of
the declarant for truthfulness and honesty.
Id.
Rogers claims that the second officer’s testimony regarding the victim’s statements
does not contain circumstantial guarantees of trustworthiness because the victim’s
statements to the officer were not under oath, not against her own interests, and made only
to guarantee that Rogers would remain “locked up.” However, whe n considering the
factors described in Davis, we hold that Rogers has failed to demonstrate that the totality
of the circumstances necessitates a determination that it was plain error for the district court
to fail to sua sponte strike the testimony.
The victim spoke to the second officer vo luntarily at a victim interview. S he
subsequently testified under oath and was cross -examined by defense counsel regarding
her statements during the interview with the second officer. Although the second officer
was not present for what the victim called the “domestic,” and there was testimony about
an ongoing romantic relationship between the victim and Rogers, both the mother and the
victim testified about Rogers’ violent history. Additionally, the second officer observed
that the victim was “bandaged up,” “shaken,” and “distraught” during this interview. He
testified that the victim was “adamant” that she wanted to testify and that the officer

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showed the victim the body camera footage from the 2018 incident. Finally, Rogers
stipulated to two prior domestic assault charges and the district court offered a curative
instruction that evidence of the 2019 incident was “being offered for the limited purpose
of demonstrating the nature and extent of the relationship” between the parties.
Therefore, we conclude that Rogers has failed to demonstrate that the victim’s
statements to the second officer lack sufficient guarantees of trustworthiness so as to be
inadmissible under rule 807. Thus, we need not consider whether th e second officer’s
statements prejudiced Rogers. See Brown, 815 N.W.2d at 620 (noting that if any
requirement of the plain-error test is not satisfied, an appellate court need not consider the
other requirements).
III. The warrant of commitment erroneously entered two judgements of
conviction.

Rogers argues that the district court erroneously adjudicated two counts of felony
domestic assault even though both counts arose from the same behavioral incident.
Even though a defendant may be convicted of multiple counts arising from a single
incident, the district court must “adjudicate formally and impose sentence on one count
only.” State v. LaTourelle , 343 N.W.2d 277, 284 (Minn. 1984). When the written
sentencing order conflicts with the district court’s oral pronouncement, the district court’s
unambiguous oral pronouncement on sentencing controls. State v. Staloch , 643 N.W.2d
329, 331 (Minn. App. 2002). Additionally, when an official judgment order or a warrant
of commitment incorrectly notes that a party has been “convicted of or sentenced for more

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than one included offense,” this court will vacate the erroneous conviction. State v.
Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999).
At the sentencing hearing, the district court acknowledged that because Rogers had
been found guilty of two counts of domestic assault arising from the same incident, a
conviction should only be entered on one of the counts. Accordingly, the district court
pronounced that Rogers was convicted of, and sentenced on, one count of felony domestic
assault (fear), in violation of Minn. Stat. § 609.2242, subd. 4. The district court stated that
it would not impose a sentence on the second count “but the jury verdict remains.”
Nevertheless, Roger’s warrant of commitment listed convictions on both counts.
Because the district court only entered a conviction on the first count of felony
domestic assault, and the district court’s unambiguous oral pronouncement controls,
Staloch, 643 N.W.2d at 331, the district court did not impermissibly adjudicate Rogers on
both counts. However, because the warrant of commitment incorrectly indicates entries of
conviction on two counts of domestic assault, we remand to the district court for correction
of the warrant of commitment to reflect a conviction only on the first offense.
Affirmed in part, reversed in part, and remanded.