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This opinion is nonprecedential except as provided by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
A22-1146

State of Minnesota,
Respondent,

vs.

Kenneth Darrick Robinson,
Appellant.

Filed September 5, 2023
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-20-2878

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Gaïtas, Judge; and Florey,
Judge.∗

∗Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Hennepin County jury found Kenneth Darrick Robinson guilty of third-degree
criminal sexual conduct based on evidence that he engaged in sexual penetration of a
woman while she was asleep. We conclude that the district court did not err by admitting
three video-recordings into evidence or by excluding evidence of Robinson’s post-arrest
investigative interview. We also conclude that Robinson’s pro se supplemental brief does
not present any arguments that require appellate relief. Therefore, we affirm.
FACTS
In October 2018 , E.B. lived alone in a two-bedroom apartment in Minneapolis
because her roommate recently had died. Her friend T.T. asked her whether she would
sublet the vacant bedroom to his friend, Robinson. E.B. agreed. T.T. and Robinson arrived
at E.B.’s apartment on October 27, 2018. Both T.T. and Robinson stayed at the apartment
for several days. E.B., T.T., and Robinson spent time together, listened to music, danced,
and drank alcoholic beverages.
During the evening of October 30, 2018, E.B., T.T., and Robinson again spent time
together, listening to music and drinking. Between 10:00 and 11:00 p.m., E.B. went to her
bedroom, closed the door, and fell asleep. At approximately midnight, she awoke and
realized that Robinson was on top of her, that her underpants had been removed, and that
Robinson had inserted his penis into her vagina.
E.B. got out of bed, grabbed her cell phone, went into the bathroom, and locked the
door behind her. She called a sister who lived in Georgia after turning on the shower to
3
make noise to conceal her phone conversation. Three other family members eventually
joined the call. E.B. told them that she had been sexually assaulted. A sister who lived
close to E.B.’s apartment went to that location and waited outside. Another sister called
911 at 12:07 a.m. and connected E.B. to the call so that she could speak with the dispatcher.
After officers arrived at E.B.’s apartment building, E.B. went outside and spoke
with them. E.B. “looked terrified,” was “tearful,” and was “shaking.” E.B. described the
incident to Officer Starr and answered the officer’s questions while standing outside the
apartment building. E.B. later entered an ambulance and described the incident further for
the officer and for paramedics before she was taken to a hospital for a sexual-assault
examination.
More than a year later, in January 2020, the state charged Robinson with one count
of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(d)
(2018), based on the allegation that he engaged in sexual penetration with E.B. while
knowing or having reason to know that she was “mentally impaired, mentally
incapacitated, or physically helpless.” See id.
The case was tried to a jury on eight days in March 2022. The state called 13
witnesses, including E.B. and T.T. The defense called two witnesses, including Robinson.
E.B. testified first and described the incident and the events that preceded it. On
cross-examination, Robinson’s attorney challenged E.B.’s versions of events, questioning
why E.B. first called her sister rather than law enforcement and probing various
inconsistencies between her testimony and her earlier statements to law enforcement.
4
Robinson’s attorney also asked E.B. whether she previously had had consensual sex with
Robinson, which she denied.
The state’s second witness was Officer Starr. Earlier, before the evidentiary phase
of trial, Robinson had moved in limine to exclude prior statements by E.B. on hearsay
grounds. The discussion between the district court and counsel at that time focused on
statements by E.B. in four video-recordings created by Officer Starr’s body- worn video-
camera. The district court asked the prosecutor for copies of the video-recordings and
reserved ruling. Immediately before Officer Starr took the witness stand, the district court
ruled on Robinson’s motion in limine by admitting the first, second, and third video-
recordings, which were recorded at 12:24, 12:50, and 1:10 a.m., under the excited-utterance
exception to the hearsay rule. The district court excluded the fourth video-recording, which
was recorded at 1:44 a.m.
The prosecutor played the three video-recordings for the jury and asked questions
of Officer Starr about his interactions with E.B. The officer testified that when he first
arrived at the apartment building, E.B. was still inside her apartment and her sister was
standing outside. The officer also described E.B.’s demeanor after she came outside and
spoke with him.
The state also called as a witness Sergeant Wente, who interviewed T.T. and
Robinson on the night of the incident and interviewed E.B. a week after the incident.
Sergeant Wente testified that Robinson stated that the sexual encounter with E.B. was
consensual.
5
In Robinson’s case-in -chief, a private investigator testified that, in a May 2020
interview, T.T. stated that E.B. was “provocative” and “flirtatious” toward Robinson. The
private investigator also testified that T.T. stated that Robinson told him that, the night
before the incident, Robinson had gone into E.B.’s bedroom and she “was down with it.”
Robinson testified that E.B. was provocative and flirtatious toward him before the
night of the incident. With respect to the evening of October 30, 2018, Robinson testified
that, after T.T. fell asleep on a living-room chair, E.B. called Robinson into her bedroom,
kissed him, and asked him whether he had a condom. Robinson testified that he went to
the living room and asked T.T. whether he had a condom, but he did not. Robinson testified
that he returned to E.B.’s bedroom and that they began having consensual sex. Robinson
testified that E.B. received two phone calls and that, after the second call, they stopped
having sex so that E.B. could send a text message. Robinson testified that E.B. then left
the bedroom and went into the bathroom.
Before resting, Robinson sought to recall Sergeant Wente for additional questioning
about his investigative interview of Robinson and to introduce portions of a video-
recording of the interview as prior consistent statements. The state objected. The district
court sustained the state’s objection.
The jury found Robinson guilty. The district court imposed a sentence of 180
months of imprisonment. Robinson appeals.

6
DECISION
I. Admissibility of Video-Recordings
Robinson first argues that the district court erred by admitting the three body-cam
video-recordings under the excited-utterance exception to the hearsay rule.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 801(c). As a general rule, hearsay is inadmissible. Minn. R.
Evid. 802. But the rules of evidence provide numerous exceptions to the general rule of
exclusion. See Minn. R. Evid. 803, 804.
One such exception is the excited-utterance exception. An out-of-court statement
may be admissible under the excited-utterance exception if it “relat[es] to a startling event
or condition made while the declarant was under the stress of excitement caused by the
event or condition.” Minn. R. Evid. 803(2). To be admissible, “three requirements must
be met: (1) there must be a startling event or condition; (2) the statement must relate to the
startling event or condition; and (3) the declarant must be under a sufficient aura of
excitement caused by the event or condition to insure the trustworthiness of the statement.”
State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986). The third requirement is the most
important. State v. Davis, 820 N.W.2d 525, 536 (Minn. 2012). This court applies an abuse-
of-discretion standard of review to a district court’s evidentiary rulings. State v. Hallmark,
927 N.W.2d 281, 291 (Minn. 2019).
The district court admitted three video-recordings under the excited-utterance
exception after reviewing them and making findings relevant to the third factor. The
7
district court noted that the first and second video-recordings were recorded within an hour
after the incident and that, while E.B. was recorded, she was crying, unable to “catch her
breath,” and “very clearly . . . under the stress of excitement caused by the event. ” With
respect to the third video-recording, which was recorded in the ambulance, the district court
noted that it was recorded slightly more than an hour after the incident and that “it is very
clear” that E.B. was “distraught” and “visibly crying and upset still.” Robinson does not
directly challenge the district court’s findings, but we nonetheless note that they are
confirmed by our review of the three video-recordings, which indicates that E.B. remained
under an “aura of excitement” when she made the statements at issue. Her demeanor
fluctuated, but she cried several times and remained visibly upset throughout the time
periods in which she made the statements.
Robinson’s primary contention on appeal is that the district court erred by not
considering the fact that E.B.’s statements were made in response to questioning by a police
officer. Robinson cites State v. Page, 386 N.W.2d 330 (Minn. App. 1986), rev. denied
(Minn. June 30, 1986), for the proposition that “ex parte statements made during police
questioning are ‘inherently untrustworthy.’” Id. at 334 (quoting State v. Hansen, 312
N.W.2d 96, 103 (Minn. 1981)). We reversed and remanded i n Page because the police
officer who interviewed the declarant testified that the declarant “was calmed down” when
he made the statements because the officer “ had worked at getting him calmed, and that
this effort took ‘quite a little time.’” Id. In the present case, the district court was well
aware that E.B. was being questioned by a police officer but, nonetheless, made findings,
8
based on the district court’s own observation of the video-recordings, that E.B. was not
calm.
In addition, a recent supreme court opinion concerning body-cam video-recordings
makes clear that out-of -court statements made in response to a police officer’s questions
may qualify for the excited-utterance exception. I n State v. Tapper, 993 N.W.2d 432
(Minn. 2023) , the supreme court stated that “‘an excited utterance is not necessarily
rendered inadmissible by the fact that the declaration was made in response to a question.’”
Id. at 438 (quoting In re Chuesberg’s Welfare, 233 N.W.2d 887, 889 (Minn. 1975)).
Rather, such a fact is “a relevant consideration as to ‘whether the utterance was
spontaneous and excited.’” Id. (quoting Chuesberg’s Welfare, 233 N.W.2d at 889). But
the supreme court in Tapper did not rest its decision on that factor; instead, the supreme
court affirmed the district court’s exclusion of hearsay statements based on the two reasons
stated by the district court: that the declarant had an “ unexcited demeanor” and that a
considerable amount of time had passed since the alleged assault. Id. at 437-39. The
supreme court emphasized that a district court has broad discretion in determining whether
the excited-utterance exception applies, and the supreme court affirmed the district court’s
ruling even though the district court did not expressly state that the out-of-court statements
were made in response to a police officer’s question, which was obvious from the video-
recording. Id. at 438-39. Accordingly, the district court in this case did not err by not
expressly stating that E.B.’s out-of-court statements were made in response to Officer
Starr’s questions, which was obvious from the video-recordings.
9
Robinson also contends that the district court erred by not considering the fact that
E.B. did not yell or scream while in her bedroom with Robinson or the fact that she called
her sister rather than calling 911, which, he asserts, shows that E.B. was thinking too clearly
to be under an “aura of excitement.” This general contention is at odds with the district
court’s specific findings about E.B.’s actual demeanor at the time of the out-of-court
statements, as evidenced by the video-recordings themselves. Consequently, Robinson’s
contention is inconsistent with our deferential standard of review and our own review of
the video-recordings.
Thus, the district court did not abuse its discretion by ruling that the three video-
recordings are admissible under the excited-utterance exception to the hearsay rule.
In the alternative, Robinson contends that the district court erred by not excluding
the video-recordings on the ground that they are cumulative of other evidence concerning
E.B.’s version of the incident. Evidence that is relevant may nonetheless be inadmissible
“if its probative value is substantially outweighed by . . . needless presentation of
cumulative evidence.” Minn. R. Evid. 403.
Robinson did not object to the video-recordings on the ground of cumulativeness.
As a consequence, we review only for plain error. Minn. R. Crim. P. 31.02; State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998). At the time of the district court’s ruling, only E.B.
had testified; other witnesses had not yet taken the witness stand. At that stage of the trial,
the video-recordings were not plainly cumulative. Thus, the district court did not plainly
err by not excluding the video-recordings on the ground that they were cumulative of other
evidence.
10
In sum, the district court did not err by denying Robinson’s motion in limine with
respect to the three video-recordings.
II. Admissibility of Investigative Interview
Robinson also argues that the district court erred by sustaining the state’s objection
to his attempt to introduce a video-recording of Sergeant Wente’s investigative interview
of him. Robinson contends that portions of the video-recording should have been admitted
as prior consistent statements.
A prior statement by a witness that is consistent with the witness’s trial testimony is
considered non-hearsay and, thus, is not inadmissible on hearsay grounds. Minn. R. Evid.
801(d)(1)(B). The applicable rule provides: “A statement is not hearsay if . . . [t]he
declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and 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 . . . .” Id. Rule
801(d)(1)(B) allows for the admission of prior consistent statements “‘ to enhance the
credibility of a witness and as substantive evidence if the court determines the statements
would be helpful in evaluating credibility.’” State v. Farrah, 735 N.W.2d 336, 344 (Minn.
2007) (quoting 11 Peter N. Thompson, Minnesota Practice – Evidence § 801.01 at 439 (3d
ed. 2001)). That purpose is served only if the credibility of a witness has been challenged.
Id.; State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004); State v. Nunn, 561 N.W.2d 902,
909 (Minn. 1997). This court applies an abuse-of-discretion standard of review to a district
court’s ruling on a hearsay objection. Hallmark, 927 N.W.2d at 291.
11
After Robinson testified, he sought to recall Sergeant Wente and to play portions of
the video-recording of Sergeant Wente’ s investigative interview of him. The state
objected. The district court ruled that excerpts from the video-recording are not admissible
as prior consistent statements. The district court reasoned that, although Robinson’s
credibility was challenged, the proffered evidence would not bolster his credibility in
response to the challenge. In doing so, the district court read aloud from the supreme
court’s opinion in Nunn, in which the supreme court stated:
Under the rule, prior consistent out-of-court statements are not
automatically admitted. The statements must be helpful to the
trier of fact in evaluating the witness’ credibility. Thus, before
the statement can be admitted, the witness’ credibility must
have been challenged, and the statement must bolster the
witness’ credibility with respect to that aspect of the witness’
credibility that was challenged. Finally, under Rules 403 and
611, the trial court retains authority to either limit or exclude
the statement and, if admitted, to control the manner in which
it is admitted.

561 N.W.2d at 909. In addition, the district court read aloud from a comment to rule 801
that states, “more proof that the witness repeated the same story in and out of court does
not necessarily bolster credibility.” Minn. R. Evid. 801(d)(1)(B), 1989 comm. cmt. The
district court also reasoned that Robinson had ample opportunity to cross-examine Sergeant
Wente about the investigative interview and ample opportunity to address the subject
during his own testimony.
Robinson contends that the district court erred by reasoning that the proffered
evidence would not bolster his credibility. Specifically, he contends that the proffered
evidence would have shown that he had been consistent in his position that his sexual
12
penetration of E.B. was consensual and would have explained why he did not tell Sergeant
Wente everything that he testified to at trial. But there was no dispute that Robinson had
been consistent in his version of what occurred in E.B.’s bedroom. Sergeant Wente had
already said so in his prior testimony. Also, the video-recording would not have bolstered
Robinson’s credibility with respect to what questions Sergeant Wente asked him because
Robinson testified that he was uncertain whether Sergeant Wente asked him certain
questions that would have elicited information relevant to his defense. In addition,
Robinson does not challenge the district court’s reasoning that he had prior opportunities
to present evidence about his investigative interview, both during his cross-examination of
Sergeant Wente and during his own testimony. Furthermore, Robinson does not challenge
the district court’s reasoning that a party does not have a right to introduce his own prior
consistent statement. See Dolo v. State , 942 N.W.2d 357, 36 7 n.9 (Minn. 2020)
(concluding that video-recording of investigative interview was inadmissible self-serving
hearsay). Moreover, a district court has discretion to exclude a prior consistent statement
even if the requirements of rule 801(d)(1)(B) are satisfied. See Nunn, 561 N.W.2d at 909;
Minn. R. Evid. 801(d)(1)(B), 1989, comm. cmt.
Thus, the district court did not abuse its discretion by sustaining the state’s objection
to Robinson’s attempt to introduce a video-recording of the investigative interview.
III. Pro Se Arguments
Robinson also makes three arguments in his pro se supplemental brief.
First, Robinson argues that E.B.’s conduct during his stay at her apartment shows
that the sexual encounter was consensual. The evidence to which Robinson refers does not
13
overcome the state’s evidence that he sexually penetrated E.B. while she was asleep, without
her consent. Thus, the evidence is sufficient to support the jury’s verdict.
Second, Robinson requests a new trial on the ground that he received ineffective
assistance of counsel. Specifically, he asserts that (1) a private attorney (whom he retained
before being represented by a public defender) attended an omnibus hearing without his
being present, (2) that his public defender waived an omnibus hearing without his consent,
and (3) that his public defender did not challenge two potential jurors for cause.
“Generally, an ineffective assistance of counsel claim should be raised in a postconviction
petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321
(Minn. 2000). A post-conviction proceeding allows for the development of “‘ additional
facts to explain the attorney’s decisions,’ so as to properly consider whether a defense
counsel’s performance was deficient.” Id. (quoting Black v. State, 560 N.W.2d 83, 85 n.1
(Minn. 1997)). An appellate court may consider an ineffectiveness argument on direct
appeal if the trial record is sufficiently developed such that the claim can be decided based
on the trial record. Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004). In this case, the
trial record, by itself, does not allow for a determination of whether Robinson’s attorneys
were deficient in their representation of him or whether any such deficiency prejudiced
him. Thus, we decline to consider the merits of this argument on direct appeal. Robinson’s
right to assert the claims in a future post- conviction action is preserved. See State v.
Christian, 657 N.W.2d 186, 194 (Minn. 2003); Gustafson, 610 N.W.2d at 321; State v.
Xiong, 638 N.W.2d 499, 504 (Minn. App. 2002), rev. denied (Minn. Apr. 16, 2002).
14
Third, Robinson argues that he was denied his right to due process on the ground
that the state introduced perjured testimony. In support of this argument, Robinson refers
to certain documents in an addendum that he submitted with his pro se supplemental brief.
Those documents are not in the district court record and, thus, are not properly before this
court. Minn. R. App. P. 110.01; State v. Cao, 788 N.W.2d 710, 718 n.2 (Minn. 2000). In
any event, this court must defer to the jury’s credibility determinations and its resolution
of disputed factual issues. See, e.g., State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).
Affirmed.