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This opinion is nonprecedential except as provided by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
A20-0955

State of Minnesota,
Respondent,

vs.

Manuel Jesus Pomavilla,
Appellant.

Filed June 7, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-19-18832

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

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

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from final judgment of conviction on two counts of first-degree
criminal sexual conduct, appellant argues that the district court erred by declining to
conduct an in camera review of certain documents rela ted to the victim and in admitting

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recorded hearsay statements made by the victim in an investigatory interview. Because the
district court properly exercised its discretion in declining to conduct in camera review and
the recorded investigatory statements are nonhearsay and therefore appropriately admitted,
we affirm.
FACTS
Appellant Manuel Jesus Pomavilla was foun d guilty of three counts of first-degree
criminal sexual conduct, in violation of Minn . Stat. § 609.342, subd. 1 (2008), after the
victim reported being sexually abused by appellant. The victim alleged that appellant, who
had at one time been the victim ’s babysitter and at a later ti me lived with the victim and
the victim’s mother in their apartment, had abused her numerous times over the course of
several years since she was six years old.
Appellant filed a pretrial motion for an in camera review of certain records relating
to the victim. Specifically, appellant requested review of child protection records relating
to an alleged assault of the victim by a separate perpetrator in 2017, as well as records from
the victim’s counselor, psychiatrist, and school. Following appellant’s arguments that the
child protection reports could assist in an alternative-perpetrator defense and the other
records could assist in undermining the victim’s credibility as a witness, the district court
denied appellant’s motion to conduct an in camera review of the requested records.
During the jury trial and following the te stimony of the victim, the district court
allowed the playing of a record ed interview of the victim taken during the investigation
into this matter at CornerHouse, during which the victim detailed her accusations of assault
by appellant. Appellant objected to the admission of this recording as hearsay. The district

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court found it to be admissible under numerous evidentiary rules, primarily as nonhearsay
prior consistent statements, pursuant to Minn. R. Evid. 801(d)(1)(B).
The jury found appellant guilty on all thre e counts of first-de gree criminal sexual
conduct. The district court sentenced appellant to confinement of 216 months on count 1
and 144 months on count 2. Count 3 was dismissed as a less er-included offense. This
appeal follows.
DECISION
I. The district court properly exercised it s discretion by declining to conduct an
in camera review of the requested documents.

When a defendant requests confidential records, the district court may review such
records in camera to balance the defendant’s right to defend himself against the victim’s
right to privacy. State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012); see also State v.
Paradee, 403 N.W.2d 640 (Minn. 1987). 1 However, “in camera review is not a right.”
Hokanson, 821 N.W.2d at 349. To secure review “the defendant must first establish a
plausible showing that the information woul d be both material and favorable to his
defense.” Id. (quotation omitted). A district court’s denial of a motion for in camera
review is reviewed for an abuse of discretion. Id. We review each set of records requested
in turn.
A. Materials Relating to Prior Allegation of Sexual Abuse
Appellant sought records relating to an un related sexual assault incident alleged by
the victim to have been committed by a separate individual in 2017. Appellant argues that

1 That the records sought by appellant were confidential is not disputed.

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these documents should have been reviewed because the victim “could be confusing her
prior allegation of sexual abuse with her a ccusations against appellant,” supporting an
“alternative perpetrator” defense. The distri ct court declined to review any documents
relating to this alleged incident, concluding that a separate instance of sexual assault would
not support an alternate-perpetrator defense where, as here, “the alleged sexual abuse began
in approximately 2010 and occurred repeatedly.”
The district court did not ab use its discretion by denying in camera review. The
record belies appellant’s claim that the victim confused the prior perpetrator and abuse with
appellant and the incidents of abuse by appellant. The victim testified regarding numerous
incidents of abuse specifically committed by appellant, including assaults prior to and after
appellant was residing with the victim and he r mother. The victim’s testimony provided
specific details establishing that appellant ha d, in situations and circumstances unique to
appellant, sexually assaulted he r over the course of a number of years and on multiple
occasions. The specificity of the victim’s testimony, combined with the victim’s
familiarity with appellant, as well as the fact that the assaults took place over many years—
both before and after the other alleged assau lt—justifies the district court’s decision to
decline in camera review. Given this, appellant failed to es tablish a “plausible showing”
that the records requested would in fact contain evidence that the victim confused the two
perpetrators. See Hokanson, 821 N.W.2d at 349.
B. Victim’s School, Counseling, and Psychiatric Records
Appellant sought records relating to the vi ctim’s school, counseling, and psychiatric
records. Appellant argues that any eviden ce relating to potential mental health or

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emotional issues could relate to the victim’s credibility or competency as a witness. The
district court declined to re view these records, concluding that appellant’s request was
“overbroad” and had “fail[ed] to draw a specific nexus between this case and the
conversations victim may have had with her psychiatrist or counselor.”
Though a defendant need not provide conclusive proof that the confidential
materials in question would certainly cont ain material and favorable evidence, the
defendant must nevertheless establish a “plaus ible showing” that such evidence would
exist. State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quotation omitted). Appellant
has provided no evidence that counseling or psyc hiatric records exist which would
undermine the victim’s credibilit y or competency. Appellant failed to meet his burden,
and the district court did not abuse its discretion in denying in camera review.
II. The district court properly exercise d its discretion to admit the CornerHouse
interview.

Prior out-of-court stat ements, though often inad missible as hearsay, may
nevertheless be admissible if they are eith er (1) not offered for the truth of the matter
asserted (i.e. are not hearsay), or (2) fall under one or more exceptions to the hearsay rule.
Minn. R. Evid. 801-804, 807. The district court concluded that a recording of the victim’s
CornerHouse interview was admissible as “the vast majority” of the interview satisfied the
prior consistent statement rule, Minn. R. Evid . 801(d)(1), as it contained prior statements
that were consistent with the testimony given by the victim at trial.
“A defendant claiming error in the distri ct court’s reception of evidence has the
burden of showing both the error and the prejudice resulting from the error.” Holt v. State,

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772 N.W.2d 470, 483 (Minn. 2009) (quotation omitted). “A determination that a statement
meets the foundational requirements of a hearsa y exception is reviewed for an abuse of
discretion.” Id.
A prior out-of-court statement by a witness is not hearsay if:
(1) The declarant testifies at trial and gives testimony
consistent with a prior statement;
(2) The declarant is subject to cross-examination regarding
the prior statement;
(3) The declarant’s credibility must have been challenged;
and
(4) The declarant’s prior statemen t is helpful to the trier of
fact in evaluating credib ility with regard to the
challenged aspect.

State v. Farrah , 735 N.W.2d 336, 344 (M inn. 2007); Minn. R. Evid. 801(d)(1)(B). In
effect, this rule allows for the introduction of prior statements in order to enhance the
credibility of a witness whose cr edibility has been challenged. Id. Each requirement is
analyzed below in turn.
1. Consistency of Prior Statements
Following the victim’s testimony and prior to its submission to the jury, the district
court conducted a thorough ex amination of the contents of the CornerHous e interview,
compared it to the testimony already given by the victim, and concluded that “the vast
majority” of the statements in the recorded interview were prior consistent statements, as
required by rule 801(d)(1)(B). Appellant argues that “the CornerHouse video was not
entirely consistent with her trial testimony,” a nd, therefore, the evidentiary rule does not
apply to allow its admission.

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Though the recorded interview is not identical to the victim’s te stimony at trial, it
is clear that the victim’s testimony a nd the CornerHouse interview are “reasonably
consistent,” and summarize and describe the same general sequence of events. State v.
Zulu, 706 N.W.2d 919, 924 (Minn. App. 2 005) (“The trial testimony and the prior
statement need not be identical to be consistent, and admiss ion of a videotaped statement
that is reasonably consistent with the trial testimony is not reversible error.”) (citation and
quotation omitted). These consistencies include repeated identification of appellant as the
individual who sexually abused her on multiple occasions, he r identification of specific
incidents of sexual assault (including wher e and when the incidents occurred), and the
victim’s general recitation of her relationship with appellant. Any inconsistencies, such as
the victim describing her school life and hobbies, or providing slightly more or less detail
when recounting certain events, are minor. The record supports the district court’s
conclusion that “the vast majority” of the recorded interview contained prior consistent
statements—this is sufficient under the prior-consistent-statement rule. Id.
2. Subject to Cross-Examination
The next requirement for admissibility of a prior consistent statement is that the
declarant (i.e. the victim) was cross-examined regarding the statement in question. Minn.
R. Evid. 801(d)(1)(B). Appellant does not contest, and it is clear from the record, that the
victim was subject to extensive cross-examination regarding her statements.

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3. Challenging of Victim’s Credibility

The credibility of the declar ant must also have been challenged in some way. State
v. Manley, 664 N.W.2d 275, 288 (Minn. 2003). A ppellant argues that this did not occur
during his cross-examination. However, the record suggests otherwise.
In an attempt to attack her credibility, defense counse l asked the vic tim questions
regarding other people who lived in the home with the victim, the victim’s mother, and
appellant, and whether she had informed them of the assaults. The victim confirmed that
there were other people who lived with th em, and defense counsel asked whether it was
true that some of those people were “kind of close to [her] age li ving there.” Defense
counsel asked whether the victim “knew who those kids were” and asked if it was correct
that “[the victim] never told any of the kids what was going on.” The victim responded
that she had “never” done so. Defense counsel then confirmed with the victim that she had
not told her social worker for about a full year though she “felt close to [her social worker]”
and “told her about other issues.”
Defense counsel, referencing this testim ony, again attacked the credibility of the
victim during closing arguments. Defense counsel stated:
I would submit to you that it’s odd that [the victim]
never told her friends at sc hool, never told her volleyball
coaches, never told anybody in the house—her uncles, cousins,
nieces, nephews—nobody. She told nobody about these
allegations.

. . . .

I know—I think we all know that kids can become confused.
They can lie. We don’t have any specific psychiatric workup
on [the victim]. But this case hinges on her testimony.

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This was another clear challenge to the victim’s credibility a nd connected directly to the
line of questioning pursued on cross-examination.
In sum, it is clear from the record that defense counsel cha llenged the victim’s
credibility, attempting to cast doubt on the victim’s allegations by highlighting the victim’s
failure to report the assaults immediately and the length of time it took victim to report the
abuse despite other individuals being present who she could have told . This requirement
of the rule is fulfilled.
4. Helpfulness to Trier of Fact
Finally, the prior statements must be “helpful to the trie r of fact in evaluating the
credibility of the witness.” Id. Because the CornerHouse video clearly “corroborated [the
victim’s] in-court testimony with respect to those events” the video was helpful to the jury
in judging the victim’s credibility. State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).
In sum, the record demonstrates that the statements in the interview were
“reasonably consistent” with the victim’s trial testimony, the victim was subject to cross-
examination, the victim’s credibility was challenged, and her prior statements were helpful
to the trier of fact in evaluating her credibility. The district court did not abuse its discretion
in concluding that the recorded interview was not hearsay.
Affirmed.