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This opinion will be unpublished and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
A19-1771

State of Minnesota,
Respondent,

vs.

David Ronald Leonard,
Appellant.

Filed August 31, 2020
Affirmed
Cochran, Judge

Fillmore County District Court
File No. 23-CR-18-199

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

Brett A. Corson, Fillmore County Attorney, Preston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant contends that the district cour t made erroneous evidentiary rulings that
deprived him of his Confrontation Clause ri ghts as guaranteed by the United States and

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Minnesota Constitutions. Because the distri ct court’s evidentiary rulings were not
erroneous and did not violate appellant’s Confrontation Clause rights, we affirm.
FACTS
The state charged appellant David Ronald Leonard with one count of second-degree
criminal sexual conduct and two counts fifth-degree criminal sexual conduct. A jury found
Leonard guilty of all counts. At issue in this appeal is th e admission of two videotaped
forensic interviews of the then-eight-year-old victim, N.M., and the manner in which they
were introduced at trial.
It is undisputed that the trial evidence sh ows that, in the spring of 2016, N.M. lived
down the street from a family with three children, A.G., L.G., and T.G. N.M. often went
to the family’s house to play with T.G., the youngest of the three children. Leonard is
T.G.’s great uncle. Leonard occasionally helped with childcare at th e family’s house.
Leonard also did maintenance work at a near by cemetery. On one occasion, he brought
N.M., T.G., L.G., and another child to the cemetery to help with some work. In
November 2017, N.M. told her mother that she had been sexually abused by the person she
believed to be T.G.’s grandfather.
Near the beginning of trial, the state notified the court and Leonard that it intended
to call N.M. and several other child witnesses on the first day of tria l. Defense counsel
indicated that if the forensic interviews were introduced later at tria l, “it’s possible that
there would be further cross-questions based on those statements that the defense may need
to ask [N.M.].”

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In her trial testimony, N.M. identified Leonard in the courtroom, and explained that
she had previously believed that Leonard was T.G.’s grandfather. She proceeded to testify
about several incidents during which Leonard sexually abused her. The first incident that
N.M. testified about occurred at T.G.’s house. Leonard told her to move closer to him and
touched her on her thigh. He told her to take off her pant s, but N.M. refused and then
physically resisted Leonard’s attempts to re move her pants. Leon ard also touched her
chest.
In another incident, Leonard pushed N.M. into the family’s bathroom and made her
hold a towel. Leonard took off his pants and ejaculated.
In a third incident, Leonard placed N.M. on his lap, touched her hair and her thigh,
and told her that she had beautiful eyes. He to ld N.M. not to talk to her brother about the
incidents.
A fourth incident occurred at the cemetery where Leonard worked. Leonard drove
N.M., T.G., L.G., and another child to the cem etery to help do some w o r k t h e r e . I n
Leonard’s truck, N.M. saw a picture of a naked woman. When they arrived at the cemetery,
Leonard gave everyone except N.M. a bag to pick up flowers. Leonard told N.M. that she
could get a bag from a shed. When Leonard an d N.M. went into the shed, Leonard shut
the door. He looked down N.M.’s pants, t ouched her genitals, and tried to kiss her. He
also told N.M. to get on the tractor and pull her pants down so that he could take a picture.
When she sat on the tractor, he pulled her pants down and her legs apart. Then, after taking
pictures, he gave N.M. a bag a nd let her leave. Later that day, Leonard confronted N.M.
in the family’s garage and would not let her leave until she said she loved him.

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Finally, N.M. testified about a fifth incident. While changing clothes after a water
fight, she saw Leonard looking at her through a crack in the door.
At some point, T.G.’s mother asked N.M. if Leonard had done anything to her, but
N.M. said that nothing had happened. N. M. eventually told her own mother about
Leonard’s abuse. The prosec utor asked N.M. if she had talked to anyone about the
incidents after she told her mother. N.M. confirmed that she spoke with someone—a “lady
or somebody from the police department”—about what had happened. She said that she
did not tell that person everything that Leonard had done because she was scared.
Defense counsel cross-examined N.M. by asking about her memory, whether she
had talked to anyone ab out the incident, and if anyone had told her that they believed
something had happened to he r. While defense counsel did not ask questions about the
substance of the forensic inte rviews that were later introduced, defense counsel did ask
N.M. some questions about whether she had talked to a social worker about the incidents.
Later in the trial, the state called the so cial worker who conducted the forensic
interviews at issue in this appeal. Before the social wo rker testified, the district court
watched the video recording of the interviews. The district court concluded that N.M.’s
statements in the forensic in terviews were admissible unde r Minn. R. Evid. 801(d)(1)(B)
as prior consistent statements. The state introduced the forensic interview videos through
the social worker and played them for the jury.
In the first forensic interview, N.M. told the social worker about the incident at the
cemetery. She also discussed a time when she was at T.G.’s house and she ran away
because she was afraid of Leonard.

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In the second forensic in terview, which occurred on a later date, N.M. again
discussed the cemetery incident. She described other incidents, including an incident when
Leonard grabbed her and asked if she loved him while they were in the family’s garage.
She told the social worker ab out another incident that occu rred in T.G.’s parents’ room
when Leonard attempted to “go in her pants. ” She physically resisted Leonard’s attempt
to put his hands in her pants. She eventually ran away.
Other witnesses corroborated aspects of N.M .’s testimony. T.G.’s father testified
that Leonard told him that he had helped N.M. change after a water fight. T.G.’s mother
testified that she had asked N.M. if Leonard had done anything to her. T.G. saw Leonard
and N.M. go into a room by themselves on tw o different occasions. Both T.G. and L.G.
testified that Leonard brought them to the ce metery with N.M. Th ey testified, however,
that they did not see N.M. and Leonard go into a shed. N.M.’s mother testified about when
N.M. told her about Leonard’s abuse.
After the state rested, Leonard asked the state to recall N.M. for further
cross-examination about her statements during the forensic interviews. The district court
did not require the state to recall N.M. and suggested that Leonard subpoena N.M. to have
her testify.
Leonard testified in his case-in-chief. He asserted that he did not sexually abuse
N.M. But he also admitted that he brought the children to the ceme tery, that there was a
riding lawn tractor at the cemetery, and that there was a calendar with a picture of a naked
woman in his truck.

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The jury found Leonard guilty of all counts. After trial, Leonard brought a motion
for a new trial, arguing that he was denied his right to confrontation because he was denied
an opportunity to confront N.M. after the fo rensic interviews were introduced. After a
motion hearing, the district court issued a written order denying Le onard’s motion. The
district court sentenced Leonard to 91 months in prison.
Leonard appeals.
D E C I S I O N
Leonard’s appeal concerns the admission of the forensic interview videos and the
manner in which they were introduced. He first argues that, because N.M. testified before
the videos were introduced, and because the district court did not require the state to recall
N.M. after they were introduced, the distri ct court deprived him of his Confrontation
Clause rights. Second, he argues that the di strict court abused its discretion by admitting
the forensic interview videos as prio r consistent statements under Minn. R.
Evid. 801(d)(1)(B). We address each issue in turn.
I. There is no Confrontation Clause vi olation because N.M. testified and was
subject to cross-examination.

Leonard first argues that he was deprived of his Confrontation Clause rights because
he was allowed to cross-examin e N.M. before, but not after, the state introduced N.M.’s
prior statements. An alleged denial of a defendant’s rights under the Confrontation Clause
is a question of law that is subject to de novo review. State v. Holliday, 745 N.W.2d 556,
565 (Minn. 2008); State v. Warsame, 735 N.W.2d 684, 689 (Minn. 2007).

7
Both the United States and the Minnesota Constitutions provide that a criminal
defendant has the right to confront the witnesses against him. Holliday, 745 N.W.2d at
564 (citing U.S. Const. amend. VI (“In all cr iminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him . . . .”)); Minn. Cont. art. I, § 6
(“The accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . .”). The “ultimate goal [of the Confrontation Clause ] is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not that
evidence be reliable, but that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354,
1370 (2004). “The Clause thus reflects a judgment, not only about the desirability of
reliable evidence (a point on which there could be little dissent), but about how reliability
can best be determined.” Id. We apply the same analysis to a Confrontation Clause claim
under both the United States and Minnesota Constitutions. Holliday, 745 N.W.2d at 564.
In Crawford, the United States Supreme Court de termined that the Confrontation
Clause precludes the “admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.” 541 U.S. at 53-54, 124 S. Ct. at 1365. The United States Supreme
Court emphasized:
[W]e reiterate that, when the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.
It is therefore irrelevant that the reliability of some out-of-court
statements cannot be replicated, even if the declarant testifies
to the same matters in court. The Clause does not bar
admission of a statement so long as the declarant is present at

8
trial to defend or explain it. (The Clause also does not bar the
use of testimonial statements for purposes other than
establishing the truth of the matter asserted.)

Id. at 59 n.9, 124 S. Ct. at 1 369 n.9 (quotations and citations omitted) (emphasis added).
Relying on Crawford, the Minnesota Supreme Court has stated that “[a] successful
Confrontation Clause claim has three prer equisites: the statem ent in question was
testimonial, the statement was admitted for the truth of the matte r asserted, and the
defendant was unable to cross-examine the declarant.” Andersen v. State, 830 N.W.2d 1,
9 (Minn. 2013). The prerequisite at issu e here is whether Leonard was unable to
cross-examine the declarant, N.M.
1
We conclude that Leonard’s Confrontation Clause claim is not successful because
he was able to cross-examine N.M. “[A] declarant’s appearance for cross-examination at
trial removes all Confrontation Clause barri ers to the admission of his or her prior
statements.” Holliday, 745 N.W.2d at 565 (citing Crawford, 541 U.S. at 59 n.9, 124 S. Ct.
at 1369 n.9). In Holliday, the Minnesota Supreme Court sp ecifically held that “[t]he
admission of a witness’s prior out-of-court statements did not violate appellant’s
Confrontation Clause rights as gua ranteed by the United States and
Minnesota Constitutions where the witness appe ared for cross-examin ation at trial.”
Id. at 559. In this case, N.M. testified at trial and Leonard cross-examined her. Thus, there

1 The parties do not address whether N.M.’s statements were introduced to prove the truth
of the matter asserted. And while Leonard argues that N.M.’s statements were testimonial,
the state does not address the issue. Because we ultimately conclude that Leonard was able
to cross-examine N.M., satisfying the Confrontation Clause, we do not address whether the
statements were testimonial or whether they were introduced to prove the truth of the
matter asserted.

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was no Confrontation Clause barrier to the ad mission of the two forensic interviews later
in trial.
Leonard argues that Holliday is distinguishable and, therefore, its holding does not
apply to this case. Leonard notes that, in Holliday, the declarant was asked about the prior
statements at issue and the declarant testified that he did not recall making the statements.
See id. at 561. Leonard contends that he was not afforded a similar opportunity to
cross-examine N.M. about her statements because the forens ic interview videos were
introduced and admitted after N. M. testified. We are not pe rsuaded. Under the rules of
evidence, Leonard could have cross-examined N.M. about the cont ent of the forensic
interviews prior to the admission of the videos because N.M.’s credibility was at issue. See
Minn. R. Evid. 611(b) (“Cross-examination should be limited to the subject matter of the
direct examination and matters affecting the credibility of the witness. The court may, in
the exercise of discretion, permit inquiry into additional matters as if on direct
examination.”) (Emphasis added.). And the r ecord clearly establishes that Leonard was
aware of the state’s intent to introduce the forensic interview videos before trial. Leonard
did not have to wait until the state introduced the videos to cross-examine N.M. about their
contents. Leonard had the opportunity to cross-examine N.M. about the prior statements,
but opted not to. Leonard’s efforts to distinguish the holding in Holliday are unavailing.
Leonard also relies on the United Stat es Supreme Court’s statement in Crawford
that the Confrontation Clause “does not bar admission of a statem ent so long as the

10
declarant is present at trial to defend or explain it.” 541 U.S. at 59 n.9, 124 S. Ct. at 1369
n.9. The Minnesota Supreme Court explicitly discussed this passage in Holliday:
We recognize that the Supreme Court’s conclusion that
the Confrontation Clause does not bar admission of a prior
testimonial statement “so long as the declarant is present at trial
to defend or explain it,” [ Crawford, 541 U.S. at 59 n.9, 124
S. Ct. at 1369 n.9], could be interpreted to require that the
declarant actually defend or expl ain the statement. But such
an interpretation both ignores the fact that the Court’s
“language still focuses on presence and ability to act without
requiring that the record show the declarant actually did defend
or explain the statemen t,” Roger W. Kirst, Does Crawford
Provide a Stable Foundation for Confrontation Doctrine? ,
71 Brook. L. Rev. 35, 76 (2005), and is at odds with the Court’s
more explicit assertion that “when the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements,”
Crawford, 541 U.S. at 59 n.9, 124 S. Ct. [at 1354 n.9].

745 N.W.2d at 565-66. Considering this di scussion, we find Leonard’s reliance on this
passage to be misplaced.
Leonard also points to two pre- Holliday court of appeals opinions as further support
for his argument that his Confrontation Clau se rights were violated. These cases are
inapposite. The cases tangentially reference th e premise that the Confrontation Clause is
satisfied where the declarant testifies at trial and is subject to cross-examination concerning
a prior statement. See State v. Tate, 682 N.W.2d 169, 176 n.1 (Minn. App. 2004), review
denied (Minn. Sept. 29, 2004); see also State v. Courtney , 682 N.W.2d 185, 196 (Minn.
App. 2004), rev’d on other grounds , 696 N.W.2d 73 (Minn. 20 05). But neither case
addresses whether a defendant’s Confrontation Clause rights are violated where a declarant

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is subject to cross-examinati on before the declarant’s prior statement is admitted. These
pre-Holliday cases shed no light on the issue raised by Leonard in this case.
Finally, Leonard argues that the district court’s invitation to subpoena and recall
N.M. in his case-in-chief for further cross-examination violates the principle established in
Melendez-Diaz v. Massachusetts that the ability to subpoena a declarant does not alleviate
Confrontation Clause issues when the declarant’s prior statemen t is introduced at trial.
557 U.S. 305, 324, 129 S. Ct. 2527, 2540 (2009). But in Melendez-Diaz, the declarant—a
forensic analyst who drafted an affidavit reporting the results of a forensic analysis that
was admitted at trial—did not testify at trial. Id. at 307-09, 129 S. Ct. at 2530-31. Here,
the state subpoenaed N.M., and N.M. testified and was cross-examined. Melendez-Diaz is
inapplicable.
Ultimately, the Confrontation Clause guarantees a criminal defendant the
“opportunity for effectiv e cross-examination, not cross-ex amination that is effective in
whatever way, and to whatever extent, the defense might wish.” Holliday, 745 N.W.2d
at 566 (quoting Delaware v. Fensterer , 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985)).
Leonard cross-examined N.M. and had the op portunity to cross-examine her about her
prior statements, but opted not to. We are not persuaded that Leonard was denied an
opportunity to cross- examine N.M. Because N.M. testified and wa s subject to
cross-examination, the Confrontation Clause was satisfied.

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II. The district court did not abuse it s discretion by admitting the forensic
interview videos as prior consis tent statements under Minn. R.
Evid. 801(d)(1)(B).

Leonard also argues that the district court abused its discretion by allowing the state
to introduce N.M.’s forensic interview statem ents as prior consiste nt statements under
Minn. R. Evid. 801(d)(1)(B).
We will not reverse a district court’s evid entiary rulings absent a “clear abuse of
discretion.” Dolo v. State, 942 N.W.2d 357, 362 (Minn. 2020) ( quotations omitted); see
also Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009) (reviewing district court’s ruling on
hearsay evidence for an abuse of discretion). A district cour t abuses its discretion if its
ruling is “based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019).
Rule 801 defines hearsay as “a statemen t, other than one made by the declarant
while testifying at the trial or hearing, offe red in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 801( c). Generally, hearsay is in admissible at trial unless an
exception to the general rule applies. Minn. R. Evid. 802. But a witness’s prior statement
is not hearsay if “[t]he decl arant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, a nd the statement is . . . consistent with the
declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility
as a witness.” Minn. R. Evid. 801(d)(1)(B).
The district court admitted N.M.’s forensic interview statements as prior consistent
statements under Rule 801(d)(1)(B). Leonard argues that the forensic interview statements
were inadmissible as prior consistent stat ements because (1) N.M. was not subject to

13
cross-examination concerning th e statements, and (2) N.M.’s prior statements were not
consistent with her trial testimony.
A. N.M. was subject to cross-examin ation concerning the statements.
“Rule 801(d)(1) requires that a witness be testable about the statement, meaning that
he must be reasonably responsive to questions on the circumstances in which he made it.”
State v. Morales , 788 N.W.2d 737, 759 (Minn. 2010) (addressing a prior inconsistent
statement introduced under ru le 801(d)(1)(A)). Thus, in Morales, a witness’s prior
inconsistent statement was not admissible under rule 801(d)(1)(A) because the witness
refused to answer questions about his prior statement, and was ther efore not “subject to
cross-examination concerning the statement” as contemplated by the rule. Id.
Leonard’s argument that N.M. was not subject to cross-examination concerning the
statements made in the forensic interview vi deos is not persuasive . As discussed above,
Leonard had an opportunity to cross-examine N.M. about her statements. And as the state
points out, Leonard in fact asked N.M. about the circumstances under which she made the
forensic interview statements. On cross-examination, Leonard asked N.M. about whether
she had spoken to a social worker about the incidents, and asked N.M. a series of questions
regarding whether her memory of the incidents had been influenced by others.
We recognize the difficulty a defendant f aces in determining whether and how to
cross-examine a declarant about statements not yet in ev idence, but that does not change
the fact that N.M. was subject to cross-examination concerning the statements.

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B. N.M.’s forensic interview statements are reasonably consistent with her
trial testimony.

A prior statement need only be “reasonabl y consistent” with trial testimony to be
admissible under rule 801(d)(1)(B). State v. Bakken , 604 N.W.2d 106, 109 (Minn.
App. 2000) (quotation omitted), review denied (Minn. Jan. 4, 2000); see also In re Welfare
of K.A.S. , 585 N.W.2d 71, 76 (Minn. App. 1998 ). “The trial testimony and the prior
statement need not be identical to be consistent.” State v. Zulu , 706 N.W.2d 919, 924
(Minn. App. 2005). But a prior statement is not consistent with trial testimony if
inconsistencies “directly affect the elements of the criminal charge.” Bakken, 604 N.W.2d
at 110. For example, the declarant in Bakken testified that he di d not remember whether
the defendant used a knife durin g a criminal-sexual-conduct o ffense, but he alleged in a
prior statement that the de fendant did use a knife. Id. We concluded that the prior
statement was not consistent because “if the jury believed the inconsistent videotaped
statements, the criminal conduct would legally escalate from third-degree to first-degree.”
Id.
Leonard argues that N.M.’s forensic interv iew statements are inconsistent with her
trial testimony because the statements omitted certain incidents and details that N.M. later
testified about at trial. After reviewing the statements, we conclude that the district court
did not abuse its discretion by concluding that they are reasonably consistent with N.M.’s
trial testimony. It is true that N.M.’s forensic interview st atements are not as
comprehensive as her trial testimony in that th ey do not describe a ll of the incidents or
details that she testified to at trial. But with regard to the incidents that she described both

15
at trial and during the forensic interviews, he r statements are reasonably consistent. And
her trial testimony added to her prior statements. Thus, unlike in Bakken, there is no danger
that if the jury believed N.M.’s prior statements and not her trial testimony, that Leonard’s
criminal conduct would rise to a more serious crime.
Because N.M.’s forensic interview statem ents were reasonably consistent with her
trial testimony, and because N.M. was subject to cross-examination about the statements,
we conclude that the district court did not abuse its discretion by admitting the forensic
interview videos as prior consistent statements.
In sum, we conclude that the district court neither violated Leonard’s rights as
guaranteed under the Confrontation Clause nor abused its discretion by admitting
N.M.’s forensic interview statements as pr ior consistent statements under Minn. R.
Evid. 801(d)(1)(B).
Affirmed.