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This opinion is nonprecedential except as provided by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
A20-0922

State of Minnesota,
Respondent,

vs.

Ronald James Cartharn,
Appellant.

Filed August 23, 2021
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-19-21587

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

Michael O. Freeman, Hennepin County Attorney, Nicole S. Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellat e Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
In this direct appeal from the judgment of conviction for first-degree criminal sexual
conduct, appellant Ronald James Cartharn argues that the district court erred in concluding
that the state had provided sufficient foundation to introduce four audio clips from a
2
recorded phone call. Because we conclude that the district court did not abuse its discretion
in making this evidentiary ruling, we affirm.
FACTS
The state charged appellant Ronald James Cartharn with first-degree criminal sexual
conduct, third-degree criminal sexual conduct, and domestic assault by strangulation. The
complaint alleged that Cartharn violently and sexually assaulted the victim, who had been
living in a hotel room with him, by strangling her and forcing intercourse upon her.
The case proceeded to a ju ry trial. The victim testified to her memory of the
purportedly hours -long incident, which was consistent with the allegations in the
complaint. She also claimed that her friend, B.M ., was on the phone with her during the
assault and that she had placed the phone under a pillow while her friend recorded the
audio. Later, the victim testified, her friend sent her four audio recordings of portions of
the phone call through Instagram. She testified that she had listened to the recordings and
that they depicted “what happened in that hotel room.”
The victim played the four recordings for a Hennepin County Attorney’s Office
investigator during a recorded interview. At trial, the state introduced an audio recording
of that interview —including the portion of the interview in which the victim played the
Instagram recordings. Cartharn objected to the evidence, asserting that the state had failed
to establish a sufficient foundation to introduce it. The district court, however, overruled
the objection, concluding that the victim’s testimony was sufficient to establish an adequate
foundation.
3
The jury ultimately found Cartharn guilty of all three counts. 1 The district court
entered a judgment of conviction on the first-degree criminal-sexual-conduct count and the
domestic-assault count. The court sentenced Cartharn to 168 months’ imprisonment. This
appeal follows.
DECISION
Cartharn argues that the district court erred by allowing the state to in troduce the
Instagram recordings at trial. We review a district court’s evidentiary rulings, including a
ruling on foundation, for an abuse of discretion. Dolo v. State, 942 N.W.2d 357, 362 (Minn.
2020); Turnage v. State, 708 N.W.2d 535, 542 (Minn. 2006); State v. Farah, 855 N.W.2d
317, 320 (Minn. App. 2014), review denied (Minn. Dec. 30, 2014).
The proponent of evidence must establish an adequate foundation for the evidence
to be admissible. See Turnage, 708 N.W.2d at 542; see also Minn. R. Evid. 901(a). The
supreme court has identified seven “foundational elements” that the proponent of an audio
recording must establish before the audio recording may be admitted:
(1) [A] showing that the recording device was capable of taking
testimony; (2) a showing that the operator of the device was
competent; (3) establishment of the authenticity and
correctness of the recording; (4) a showing that changes,
additions and deletions have not been made; (5) a showing of
the manner of the preservation of the recording ;
(6) identification of the speakers; and (7) a showing that the
testimony elicited was voluntarily made without any kind of
inducement.

1 Because the only issue raised in this appeal is the sufficiency of the foundation for the
Instagram recordings, we have omitted a full description of the voluminous evidence
introduced in this case and only focus on the circumstances relevant to that issue.
4
Turnage, 708 N.W.2d at 542 (quotation omitted). One method of establishing a foundation
for evidence is by the testimony of a witness that the evidence is what the proponent claims
it to be. See Minn. R. Evid. 901(b)(1).2
Cartharn argues that the district court abused its discretion because the state failed
to establish the seven foundational elements required to introduce the recordings. 3 The
state argues that the foundational elements did not apply, and that even if they did, the state
laid a sufficient foundation.
We are not persuaded by the state’s argument that the foundational elements
discussed in Turnage did not apply to the audio recordings at issue here. The state’s
argument is easily dismissed after a close read ing of the case it primarily relies upon. In
In re Welfare of S.A.M. , 570 N.W.2d 162, 165-67 (Minn. App. 1997), we concluded that
the foundational elements did not apply to a video recording, noting that video recordings
are inherently more reliable than audio recordings. And although we may have questioned

2 The parties agree that the recordings at issue here —the Instagram recordings —were
duplicate recordings of the original audio recordings. “A duplicate is admissible to the
same extent as an original unless (1) a genuine question is raised as to the a uthenticity of
the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of
the original.” Minn. R. Evid. 1003. Although Cartharn argues that the Instagram
recordings might not have been authentic, he does not expressly contend that this duplicate
recording was inadmissible under rule 1003.
3 Cartharn also argues that the district court abused its discretion by entirely failing to
consider the foundational elements when it ruled on the admissibility of the recordings.
We do not address this argument because even if the district court abused its discretion in
this way, we would only reverse if the error was prejudicial —necessarily requiring a
conclusion that the recordings were actually inadmissible because they did not m eet the
foundational elements. Dolo, 942 N.W.2d at 362 -63; see also Minn. R. Crim. P. 31.01.
Thus, we focus our attention on Cartharn ’s arguments concerning the foundational
elements themselves.
5
the applicability of the foundational elements generally in that opinion, any doubt that the
foundational elements did not apply generally to the admission of audio recordings in
Minnesota was put to rest in Turnage, decided by the supreme court nine years after S.A.M.
See Turnage, 708 N.W.2d at 542.4
Having concluded that the foundational elements applied to the Instagram
recordings at issue here, we turn to Cartharn’s argument that the state failed to establish
the elements at trial, rendering the recordings inadmissible. Cartharn asserts that the state
failed to establish each foundational element, but only advances specific arguments on two
foundational elements: (1) the authenticity and correctness of the recording and (2) that the
recording was not altered. We focus our analysis on these more specific challenges. 5

4 The state also relies on State v. Washington , 725 N.W.2d 125, 137 (Minn. App. 2006),
review denied (Minn. Mar. 20, 2007), which was decided after Turnage, to argue that the
Turnage elements d o not apply. In Washington, we concluded that the state laid an
adequate foundation for a 911-call recording, noting that:

The state claimed that the tape was a recording of LR
speaking. The police arrived at the apartment within five
minutes of the 911 call. They spoke to LR and she
acknowledged calling 911. She described the same assault.
This was sufficient evidence to find that the 911 caller was LR.
There was thus adequate foundation for the 911 tape.

725 N.W.2d at 137. We agree that we did not discuss the Turnage elements in that case,
but we disagree that the absence of that discussion establishes that the foundational
elements established by supreme court precedent do not apply.
5 To address each other element briefly: the fact that the r ecordings exist demonstrate that
the recording device was capable of taking testimony and that the operator of the device
was competent in using the device. Cf. In re Gonzalez, 456 N.W.2d 724, 728 (Minn. App.
1990) (concluding that existence of audio recording demonstrated that recording device—
an answering machine —was capable of recording and that the operator was competent).
The manner of the preservation of the recording was described by trial testimony —they
were audio recordings preserved on Instagram by B.M. and sent to the victim. The victim
6
Generally, Cartharn argues that the state fai led to establish the foundational
elements because it failed to call B.M., the friend who made the recordings, to testify about
them. But Cartharn cites no authority requiring the person who actually made an audio
recording to lay foundation for its admission. We find no authority that establishes such a
requirement and observe that a proponent of evidence may lay foundation through the
testimony of a witness that the evidence is what the proponent claims it to be. See Minn.
R. Evid. 901(b)(1).
Considering the victim’s testimony about the recordings, we conclude that the
district court acted within its discretion when it determined that the state had laid sufficient
foundation. The victim testified about the authenticity and correctness of the recordings.
She testified that her voice and Cartharn’s voice were on the recordings and that the
recordings depicted what occurred in the hotel room. This testimony was sufficient to
establish that the recording was authentic and correct.
We analyze the other challenged foundational element—that no changes, additions,
or deletions were made to the recording s—with consideration of what the state claimed
that the evidence was—short, partial recordings of the incident at issue. The state did not
introduce the evidence as a full recording of the incident. It was very clear to the jury that
the Instagram recordings were merely “snippets” of the incident, which the victim testified
lasted for hours. Viewing the evidence through that lens, we conclude that the vi ctim’s

identified the speakers on the recording at trial. And the circumstances of the recording—
a purportedly surreptitious recording of an assault—support the conclusion that Cartharn’s
statements made were voluntary and not induced.
7
testimony sufficiently established the foundational element that the recording was not
altered. Her testimony that the recordings depicted portions of the incident allowed the
district court to infer that the recordings were not altered. Any quest ions surrounding
whether the recordings omitted portions of the incident—which the state readily conceded
and was obvious from the recordings themselves —or whether the recordings were
fabricated could have been raised through cross-examination and argument.
In sum, the district court acted within its discretion when it concluded that the state
had established a sufficient foundation for the admission of the recordings.
Affirmed.