State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1511

State of Minnesota,
Respondent,

vs.

Joshua James Allen,
Appellant.

Filed January 11, 2021
Affirmed
Florey, Judge

Freeborn County District Court
File No. 24-CR-18-1015

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

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Florey, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant challenges his aggravated-robbery conviction, arguing that the prosecutor
committed misconduct by eliciting t estimony from the responding officer about the
victim’s prior out -of-court statement s and that the district court erred in determining it
lacked jurisdiction to consider his untimely motion for a new trial. We affirm.

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FACTS
Appellant Joshua James Allen was charged with aggravated robbery, ineligible
person in possession of a firearm, and fleeing a peace officer in a motor vehicle. During
appellant’s three -day trial, the state called five witnesses: (1) the victim, C.S.; (2) the
victim’s brother and hous emate, J.S.; (3) Officer Nathan Idstein who was the responding
officer that interviewed the victim shortly after the 911 call; (4) Detective Julie Kohl, who
investigated the victim’s home, photographed his injuries, and later searched the car
appellant had been driving; and (5) Officer Adam Hamberg who was involved in the squad-
car pursuit and subsequent arrest of appellant.
The victim testified that on the night of the robbery , appellant and a mutual friend,
Tony Viramonh, knocked on the victim’s back door around 9:00 p .m. When he opened
the door, Viramonh “rushed” him, grabbed his neck, and pushed him up again st the wall
while appellant hit him with a handgun. At some point, the men took “more than a couple
hundred bucks” from the victim’s pockets. The victim claimed he could not remember
what either assailant said during the assault but denied that there was any “talk of drugs”
or “money owed for drugs.” The men eventually went to the living room , and appellant
told the victim to take the mounted televi sion off the wall and to put it into the vehicle
outside, a white SUV. According to the victim, he was “not listening,” so appellant fired
a shot into the floor. The victim then unhooked the television and loaded it into the SUV.
After hearing the gunshot, the victim’s brother, who was upstairs, called 911.
According to the victim’s brother, after coming downstairs he noticed the large television
was missing from the living room and, through the window, saw people outside loading it

3
into the back o f a white SUV. Shortly thereafter, the victim came back through the
backdoor looking “shell shocked” and told his brother, “Josh and Tony just robbed me.”
Based on the 911 report from the victim’s brother , law enforcement attempted to
initiate a traffic stop of the white SUV. After a 25-mile pursuit, the SUV pulled over. The
car’s occupants —appellant and Viramonh —were arrested. Later, when the impounded
SUV was searched, officers found the missing television, a generic gun holster, a drug pipe,
plastic baggies, and a scale with white powder residue on it, as well as a spiral -bound
notebook with a page heading of “pay up” followed by a list of names and numbers,
including one entry with the same first name as C.S. with “30” next to it.
Shortly after the robbery, t he victim was interviewed by law enforcement. The
victim testified that he could “faintly remember” his conversation with responding Officer
Idstein but could provide no details on what was said. Officer Idstein, however, testified
that during that conversation, the victim admitted “there had been a drug deal in Austin
that had gone bad from a party . . . . And that’s why [appellant and Viramonh] had come
over to rob him.” Officer Idstein’s testimony regarding the victim’s initial report, and the
change in the victim’s version of events during the interview itself and later at trial , was
referenced by both the state and defense counsel during closing argument.
In a mixed verdict, appellant was found guilty of first -degree aggravated robbery
but not guilty of being an ineligible person in possession of a firearm. 1 Appellant later

1 Before trial, appellant pleaded guilty to the fleeing-an-officer charge.

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moved for a new trial based on newly discovered evidence . The district court denied
appellant’s motion as untimely. This appeal follows.
DECISION
I. Prosecutorial misconduct
Appellant argues that the prosecutor committed misconduct by eliciting and later
referencing inadmissible testimony from the responding officer. We review unobjected-to
prosecutorial misconduct under a modified plain -error standard. State v. Ramey , 721
N.W.2d 294, 297-99 (Minn. 2006). This type of plain-error review has three requirements:
(1) the prosecutor’s unobjected-to act must constitute error; (2) the error must be plain; and
(3) the error must affect the defendant’s substantial rights. Id. at 302. An error is plain if,
under current law, it is clear or obvious. Johnson v. United States , 520 U.S. 461, 467
(1997). The defendant has the burden of showing error that is plain. Ramey, 721 N.W.2d
at 302. If plain error is established, the burden shifts to the state to show that the error did
not affect the defendant’s substantial rights. Id.
The testimony in dispute concerns the victim’s prior statements to Officer Idstein
during an interview in his squad car regarding the possible motive for the robbery:
[Prosecutor:] And what did [the victim] tell you about what had
happened? Do you recall that?

[Officer Idstein:] He told me a pretty detailed story about what
had occurred. He started off by telling me that he didn’t know
why Josh Allen or Tony Viramonh had come over to his house,
and I instantly called his bluff on that. That is not typical;
people don’t just come over to a house and rob somebody at
gunpoint and not know what is going on. So I told [C.S.] I
didn’t – right away, I didn’t believe what he was saying. And
if he was going to tell me what happened, then he needed to be

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honest. So he said that –he acknowledged that he was being
untruthful, and then he started over the narrative. And he
talked about that there had been a drug deal in Austin that had
gone bad from a party that Tony Viramonh and Josh Allen–as
well as he knew. And this individual’s name was “Ben.” Ben
had apparently sold them bad–Josh and Tony bad drugs. And
that’s why Josh and Tony had come over to his house to rob
him.

Appellant argues that these prior out -of-court statements regarding what the victim
reported to Officer Idstein are hearsay and do no t meet the threshold trustworthiness
requirement of the residual exception under Minn. R. Evid. 807.
Even if we assume that this testimony by the responding officer constituted hearsay,
the admission of hearsay does not always constitute plain error. See State v. Manthey, 711
N.W.2d 498, 504 (Minn. 2006). There are a multitude of exceptions to the hearsay rule
and “[i]n the absence of an objection, the state [is] not given the opportunity to establish
that some or all of the statements were admissible under one of the numerous exceptions
to the hearsay rule.” Manthey, 711 N.W.2d at 504. We need not determine whether the
admission of these prior out-of-court statements was erroneous because any error here was
not plain, nor did it affect appellant’s substantial rights.
The responding officer’s brief testimony regarding the victim’s statements about
prior drug involvement went only to appellant’s motive, not an element of the convicted
offense. Further, there was other significant evidence suggesting that this was a drug -
motivated crime—namely the notebook with the victim’s name and an amount due under
the heading “pay up” along with a list of other names, dates, and amounts due, all found in
the same vehicle driven by app ellant where a scale with whit e powder residue and other

6
drug paraphernalia was discovered . This evidence was presented at trial in conjunction
with repeated references to the victim’s ongoing methamphetamine use and prior drug -
possession convictions, both of which were utilized by de fense counsel to attack the
victim’s credibility and bolster appellant’s own theory of the case. Indeed, defense
counsel’s failure to object to Officer Idstein’s testimony and repeated references to the
victim’s inconsistent statements to law enforcement may have been trial strategy. See State
v. Washington, 693 N.W.2d 195, 205 (Minn. 2005) (“We do not agree that the district court
must, or even should, interfere with the trial strategy of the defendant.”).
Given the extensive references by both parties to the victim’s prior drug
involvement and the substantial evidence linking appellant to the robbery —including two
eye witnesses to the incident, a bullet hole and facial injury matching the victim’s
description of events, and drug paraphernalia found in the car appellant was driving—it is
highly unlikely that any error by the prosecutor in eliciting testimony about the victim’s
initial report suggesting that this was a drug -deal-related robbery affected appellant’s
substantial rights.
II. Motion for new trial
Appellant also argues that the district court abused its discretion in denying his
motion for a new trial on the basis of newly discovered evidence. A district court may
grant a new trial in the interests of justice or any of the other six grounds for a new trial
articulated in Minnesota Rule of Criminal Procedure 26.04, subd. 1(1). The motion “must
be based on the record” or a party may submit an affidavit or sworn statement containing
pertinent facts not in the record. Minn. R. Crim. P. 26.04, subd. 1(2). The motion for a

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new trial must be served within 15 days after the verdict and must be heard within 30 days
after the verdict, unless the court extends the period for good cause. Id., subd. 1(3). The
rules of criminal procedure do not allow a district court to extend the deadline for serving
a new-trial motion. Minn. R. Crim. P. 34.02. We review a district court’s denial of a new-
trial motion for an abuse of discretion. State v. Green, 747 N.W.2d 912, 917 (Minn. 2008).
Here, the jury returned its verdict in September , 2018, and appellant moved for a
new trial in March, 2019. As the district court observed, “[Appellant] ’s motion was filed
194 days after the guilty verdict.” The district court denied appellant’s motion as untimely
under rule 26.04, noting that it lacked discretion to extend the deadline . Appellant
concedes that his motion was filed “after the 15-day deadline in Minn. R. Crim. P. 26.04,
subd.1(3), had passed” but argues that the district court nevertheless erred by determining
that “the late filing meant it no longer had jurisdiction to adjudicate the motion” by
misinterpreting this court’s prior decision in DeLaCruz.
In its order denying appellant’s motion, the district court stated:
Close review of State v. DeLaCruz shows that the Court has no
discretion to extend the filing deadline. Because Minn. R.
Crim. P. 26.04 subd. 1 grants a 15 -day period to file a motion
for a new -trial, and Defendant’s motion was file d 194 days
after the guilty verdict, the Court denies the motion for a new-
trial. The Court reviewed State v. DeLaCruz , the sole cases
distinguishing DeLaCruz, and Minn. R. Crim. P. 34.02; which
conclusively denies the Court any discretion to expand the 15-
day period for the Defendant in this case.

The above analysis by the district court is consistent with relevant case law and governing
procedural rules. “The rules of criminal procedure do not permit the district court to extend
the deadline for serving a new-trial motion.” State v. DeLaCruz , 884 N.W.2d 878, 884

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(Minn. App. 2016). While rule 34.02 allows the district court to extend some deadlines,
the rule “specifically excludes the deadline for a defendant’s new-trial motion.” Id. (citing
Minn. R. Crim. P. 34.02 (providing that a court “may not extend the time for taking any
action under Ru le [. . . 26.04, subd. 1(3) ]”)). Because appellant’s new -trial motion was
undisputedly untimely, the district court did not abuse its discretion in denying the motion.
Affirmed.