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This opinion will be unpublished and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
A20-0034

State of Minnesota,
Respondent,

vs.

Kyle Wally Hilborn,
Appellant.

Filed December 14, 2020
Affirmed
Worke, Judge

Becker County District Court
File No. 03-CR-18-1469

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Reilly , Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his felony domestic -assault conviction, arguing that the
district court abused its discretion by admitting hearsay as substantive evidence. We
affirm.
FACTS
On July 25, 2018, appellant Kyle Wally Hilborn and his girlfriend, J.B., got into a
physical fight after a day spent drinking with Hilborn’s brother . The next day, J.B. went
to the hospital. She had bruises, tenderness, and a fractured rib. While J.B. was in the
hospital, a deputy interviewed her and she detailed the incident and five other instances of
physical assaults that occurred during her relationship with Hilborn.
On July 27, 2018, J.B. filed an affidavit and petition for a harassment restraining
order (HRO). J.B. stated that on July 25, 2018, Hilborn was “physically aggressive,” and
encouraged and watched her engage in sexual intercourse with his brother. J.B. also
detailed two past incidents in which she was injured during fights with Hilborn and claimed
that Hilborn broke her property and showed nude photographs of her to others.
Hilborn was charged with three counts: third-degree assault —substantial bodily
harm; felony domestic assault—harm ; and felony domestic assault— fear. Hilborn moved
to prohibit the state from introducing J.B.’s statement to the deputy and the HRO petition
and affidavit. The district court reserved ruling until after it had the opportunity to hear
J.B.’s trial testimony.
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At Hilborn’s jury trial, J.B. testified that on July 25, 2018, she and Hilborn had his
brother and a friend over to their place. She did not “remember very much” be cause she
“drank a lot.” She had sex with Hilborn’s brother and went to sleep. When she woke up,
Hilborn was upset that she had sex with his brother but not with him. She told Hilborn to
sleep on the couch. Hilborn would not leave the bedroom and they engaged in a “shoving
match.” Hilborn pushed her on the bed and she followed him into the kitchen and grabbed
a knife. J.B. “went for a swipe,” and Hilborn attempted to disarm her by grabbing her
wrists and pushing her to the ground. Hilborn pinned J.B. down and she felt a sharp pain
in her rib.
J.B. testified that she and Hilborn “very frequently g[ot] violent.” J.B. testified
about two incidents that she described to the deputy when interviewed at the hospital.
When asked if there were other incidents, J.B. replied, “I’m sure there were, but I don’t
remember all of them.” J.B. testified that if she forgot details, her statement to the deputy
was accurate. But J.B. also claimed that she lied to the deputy “about several aspects.”
The prosecutor provided J.B. a transcript of her statement to refresh her recollection. The
district court also ruled that the audio recording of J.B.’s statement to the deputy was
admissible to assist the jury in judging J.B.’s credibility because she testified that she lied
or made misrepresentations.
The district court ruled that the HRO petition and affidavit was also admissible. The
district court instructed the jury that the evidence of Hilborn’s conduct on other occasions
had the limited purpose of demonstrating the nature of his relationship with J.B.
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Hilborn testified that on July 25, 2018, he had only a couple drinks, but J.B.
continued to drink after he stopped. After J.B. and Hilborn’s brother had sex, he and J.B.
went to bed. S oon after, J.B. pushed him off the bed and told him to sleep on the couch.
He asked if they could just go to bed, but J.B. hit him until he agreed to sleep on the couch.
He then heard J.B. rumbling through a drawer and saw that she “was very, very drunk . . .
[and] kind of stumbling around, holding [a] knife.” Hilborn threw a blanket over J.B.’s
head and she took a swipe. He grabbed J.B.’s wrists and tried to pull her down. They
eventually fell down and J.B. got injured when he held her down to get the knife away.
Hilborn also testified about two past incidents. Hilborn testified that during each
incident, he was sober and J.B. was intoxicated, and J.B.’s injuries were caused by him in
self-defense or were accidentally self-inflicted.
The jury found Hilborn not guilty of third-degree assault and domestic assault—
harm. But the jury found Hilborn guilty of domestic assault—intent to cause fear. The
district court sentenced Hilborn to 36 months in prison. This appeal followed.
D E C I S I O N
Hilborn argues that the district court abused its discretion by admitting hearsay as
substantive evidence. This court reviews a district court’s admission of evidence for an
abuse of discretion. State v. Vasquez, 912 N.W.2d 642, 648 (Minn. 2018). A district court
abuses its discretion when it bases its decision on a conclusion of law that is clearly
erroneous or when its decision is contrary to logic or the facts in the record. Id. An
appellant must show that the district court abused its discretion by admitting the evidence
and that he was prejudiced thereby. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
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Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Minn. R. Evid. 801(c). Hearsay is generally inadmissible. Minn. R. Evid. 802. But certain
out-of-court statements are not hearsay. Minn. R. Evid. 801(d). And there are exceptions
to the rule that hearsay is inadmissible. See Minn. R. Evid. 803-804. A statement that is
not covered by a specific exception may still be admissible under the “residual exception.”
See Minn. R. Evid. 807.
HRO petition and affidavit
Hilborn first challenges the admission of the HRO petition and affidavit. The
district court admitted the HRO petition and affidavit as a prior consistent statement, a prior
inconsistent statement, and under the residual exception.
Prior consistent statement
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 trial and is subject to cross-examination concerning the statement, and (2) the
statement is “consistent with the declarant’s testimony and helpful to the trier of fact in
evaluating the declarant’s credibility .” Id. In considering whether a prior consistent
statement is admissible, the district court must make a threshold determination that the
witness’s credibility has been challenged, and “the statement must bolster the witness’
credibility with respect to that aspect of the witness’ credibility that was challenged.” See
State v. Bakken, 604 N.W .2d 106, 109 (Minn. App. 2000) (quotation omitted), review
denied (Minn. Feb. 24, 2000).
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Hilborn argues that he never challenged J.B. ’s credibility, thus the HRO petition
and affidavit is not admissible as a prior consistent statement. But Hilborn did challenge
J.B.’s credibility. In his opening statement, Hilborn’s attorney stated,
[T]here’s two sides to every story. In this particular
circumstance, there’s also two people who know that
story. . . . The difference is that [Hilborn] wasn’t drinking; [he]
was sober that night. He remembers everything. He’s going
to take the stand . . . and he is going to testify. . . . He’s going
to look you guys in the eyes, he’s going to tell you exactly what
happened. The only other person who was in the room that
knows what happened is [ J.B]. [J.B.] will admit she had a lot
to drink that night and she barely remembers anything. At
points of that night, she was blacked out drunk.

Hilborn implied that J.B.’s testimony was not credible about what happened during the
incident because she drank too much to recall it accurately. Thus, the HRO petition and
affidavit was helpful to the jury in evaluating J.B.’s credibility.
In continuing our analysis regarding whether the HRO petition and affidavit
qualifies as a prior consistent statement, the requirements that J.B. testified at trial and was
subject to cross-examination concerning the statement have been met. See Minn. R. Evid.
801(d)(1). Finally, we must decide whether the statement is “consistent with the
declarant’s testimony.” See id., 801(d)(1)(B). Hilborn argued that J.B.’s testimony was
not credible about what occurred on the night of July 25 because she was intoxicated that
night. But the HRO petition and affidavit is consistent with J.B.’s testimony regarding the
incident. In the HRO petition and affidavit, J.B. stated that Hilborn was “physically
aggressive towards [her] and encouraging [her] to have sexual intercourse with [his]
brother.” And J.B. testified that she had sex with Hilborn’s brother and then got into a
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“shoving match” with Hilborn when he would not sleep on the couch. Th ese statements
are consistent. Thus, the district court did not abuse its discretion by admitting the HRO
petition and affidavit as a prior consistent statement.
Prior inconsistent statement
An out-of-court statement is not hearsay when it is a prior inconsistent statement.
Minn. R. Evid. 801(d) (1)(A). A prior inconsistent statement is not hearsay if (1) the
declarant testifies and is subject to cross-examination concerning the statement, and (2) the
statement is inconsistent with the declarant’s testimony and was given under oath. Id. J.B.
testified and was subject to cross-examination. And the HRO petition and affidavit is a
sworn statement made just two days after the incident. Finally , J.B.’s testimony was
inconsistent with her sworn statement in some ways.
In the HRO petition and affidavit, J.B. stated that on July 25, 2018, Hilborn
encouraged her to engage in sexual intercourse with his brother. But when J.B. testified,
the prosecutor showed her the HRO petition and affidavit and asked if Hilborn encouraged
her to have sexual intercourse with his brother, and she replied: “No. . . . [T]hat would be
a lie.” In the HRO petition and affidavit, J.B. detailed an incident that occurred in June
2018, when she “may have been under the tire of [Hilborn]’s vehicle.” But J.B. testified
that she could not remember “very much” about that incident. In the HRO petition and
affidavit, J.B. also described an incident that occurred in July 2017, when Hilborn “flung”
her into a baseboard and she hit her head, and claimed that Hilborn showed nude
photographs of her to others. But when J.B. testified, she read through the HRO petition
and affidavit and stated that it was not “consistent with the past,” and she could not recall
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claiming that Hilborn shared photographs of her. In some areas, J.B.’s testimony was
inconsistent with the HRO petition and affidavit. Thus, the district court did not abuse its
discretion by admitting the HRO petition and affidavit as a prior inconsistent statement.
Residual exception
A statement not specifically covered by [an exception]
but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the 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 admission of the statement into evidence.

Minn. R. Evid. 807. To determine whether a statement possesses circumstantial guarantees
of trustworthiness requires an examination of the totality of the circumstances. State v.
Hallmark, 927 N.W.2d 281, 292 (Minn. 2019). Relevant circumstances include
(1) whether the declarant made the statement voluntaril y, under oath, and was subject to
cross-examination; (2) the relationship between the declarant and the party; (3) whether
the statement is against the declarant’s penal interest; (4 ) whether the declarant had
personal knowledge of the incident; (5) whether the declarant recanted the statement;
(6) the existence of corroborating evidence; (7) the declarant’s truthfulness; (8) whether
the statement is recorded; and (9) the declarant’s motivation for making the statement. Id.
at 292-93.
Here, J.B. made the statement voluntarily, under oath, and she was subject to cross-
examination. J.B. had personal knowledge. J.B.’s injuries corroborated her statement.
And J.B.’s motivation for making the statement was to secure a protective order against
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Hilborn. These circumstances support the determination that the statement had
circumstantial guarantees of trustworthiness. Further, the district court curbed any
prejudice to Hilborn by instructing the jury that evidence of Hilborn’s conduct on other
occasions served the limited purpose of demonstrating the nature of his relationship with
J.B.
Finally, the interests of justice were served by admission of the HRO petition and
affidavit. J.B.’s testimony was inconsistent with the HRO petition and affidavit; she
testified that she lied in the HRO petition and affidavit and could not remember certain
incidents or making claims in her statement. J.B.’s memory difficulties could be due to the
lapse of time between the incident and the trial, in which case the HRO petition and
affidavit would be reliable because it was made just two days after the incident. But J.B.’s
testimony that she lied in the HRO petition and affidavit could be due to “counterintuitive
victim behavior.” A counselor at a rape and abuse crisis center testified as an expert on
domestic violence and stated that “counterintuitive victim behavior” is behavior opposite
of how you expect a person to act and leads to victims recanting, changing, and minimizing
their stories, and taking on responsibility for the abuse. Because J.B. may have recanted
or changed the claims she made in the HRO petition and affidavit due to this victim
behavior, the interests of justice were served by admission of the HRO petition and
affidavit. Thus, the district court did not abuse its discretion by admitting the HRO petition
and affidavit under the residual exception.

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Statement to law enforcement
Hilborn also argues that the district court abused its discretion by admitting J.B.’s
statement to the deputy. J.B.’s statement to the deputy was admitted in more than one way:
the prosecutor used the statement during J.B.’s direct examination to refresh her memory,
and the district court admitted the audio recording to assist the jury in judging J.B.’s
credibility because J.B. testified that she had lied or made misrepresentations to the deputy.
Under the rules of evidence, a statement is admissible if it is a “record concerning a
matter about which a witness once had knowledge but now has insufficient recollection to
testify fully and accurately, shown to have been made or adopted by the witness when the
matter was fresh in the witness’ memory and to reflect that knowledge correctly.” Minn.
R. Evid. 803(5). In State v. Stone, this court stated that a victim’s prior audio-recorded
statement to police “may be used to supplement incomplete memory when a witness cannot
fully remember an incident and, therefore, cannot ‘testify fully and accurately’ about it.”
767 N.W.2d 735, 740 (Minn. App. 2009), aff’d 784 N.W.2d 367 (Minn. 2010).
Here, J.B. testified several times that she could not remember details. And she
testified that if she f orgot details in her testimony , the recorded statement she gave the
deputy provided an accurate description of events. Based on this record, the district court
did not abuse its discretion by admitting J.B.’s statement to the deputy.
Affirmed.