This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0665

State of Minnesota, 

Respondent, 

vs. 

Albert Michael Openshaw, 

Appellant.

Filed April 13, 2015

Affirmed

Halbrooks, Judge

Mahnomen County District Court

File No. 44-CR-12-419

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, 

Minnesota; and 

Darlene Rivera Spalla, Mahnomen County Attorney, Mahnomen, Minnesota (for 

respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, 

Assistant Public Defender, St. Paul, Minnesota (for appellant) 

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and 

Larkin, Judge. 
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U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Appellant Albert Michael Openshaw challenges his conviction of first-degree 

arson, arguing that the district court abused its discretion by admitting into evidence a 

witness’s hearsay statement. Because we conclude that the district court’s erroneous 

admission of the hearsay statement was harmless, we affirm. 

FACTS

On June 9, 2012, the Mahnomen County Sheriff’s Office received a report of a fire 

in an apartment. When the responding deputy arrived at the scene, he observed 

Openshaw outside the main entrance to the apartment building and heard him mumble

that a room in the building was on fire. The deputy asked Openshaw if he “did it,” and 

Openshaw said that he did. The deputy went to the apartment, found the sprinkler system 

on, and observed smoke. The deputy detained Openshaw. Shortly thereafter, J.G., who 

lived in the apartment building, approached the deputy and gave him information 

regarding Openshaw. The deputy then accompanied J.G. to her apartment, where she 

gave a recorded statement. 

The deputy reviewed the apartment building’s security footage and identified 

Openshaw entering and re-entering the apartment unit where the fire occurred. The 

apartment belonged to Openshaw’s girlfriend. After an investigation, the fire marshal 

concluded that the fire was intentionally set by Openshaw. The state charged Openshaw 

with first-degree arson, in violation of Minn. Stat. § 609.561, subd. 1 (2010), second-
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degree burglary, and trespassing. The state later dismissed the burglary and trespass 

counts. 

In a pretrial motion, the state moved the district court to allow “upon laying of 

proper foundation with testimony, admission of a statement made by [J.G.] immediately 

after the fire was contained with regard to events that allegedly occurred just prior to the 

fire alarms and sprinkler system being activated.” The district court deferred its ruling on 

whether to admit J.G.’s recorded statement until trial. During J.G.’s trial testimony, the 

state again requested that the district court admit J.G.’s statement, and Openshaw 

objected on the basis of hearsay. 

The state first argued that the statement fell under the present-sense-impression 

exception to the hearsay rule. Openshaw responded that, to be admissible, the statement 

needed to qualify as a prior consistent statement or a prior inconsistent statement, but that 

J.G. had not yet testified to the facts contained in the prior recorded statement. As a 

result, the statement was neither consistent nor inconsistent with her testimony. In 

response, the state argued that the statement was admissible to refresh J.G.’s recollection. 

The district court admitted J.G.’s statement as a prior consistent statement under 

Minn. R. Evid. 801(d)(1)(B), but noted that the statement could also be admitted under 

the residual hearsay exception articulated in Minn. R. Evid. 807. The statement was 

marked as exhibit 7, and the audio recording was played for the jury. 

During deliberations, the jury asked to hear J.G.’s recorded statement again, and 

the statement was replayed for the jury. The jury returned a guilty verdict. The district 
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court sentenced Openshaw to prison for a period of 117 months and imposed restitution 

in the amount of $141,308.99. Openshaw now appeals.

D E C I S I O N

Hearsay is an out-of-court statement offered “to prove the truth of the matter 

asserted” and is generally not admissible at trial. Minn. R. Evid. 801(c), 802. But an outof-court statement may be admissible if it is covered by an exception to the hearsay rule 

or is exempted from the definition of hearsay. State v. Robinson, 699 N.W.2d 790, 794 

(Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006). “Evidentiary rulings rest 

within the sound discretion of the [district] court and will not be reversed absent a clear 

abuse of discretion.” State v. Carridine, 812 N.W.2d 130, 141 (Minn. 2012) (quotation 

omitted). The appellant bears the burden of establishing that the district court abused its 

discretion and that he was thereby prejudiced. State v. Griffin, 834 N.W.2d 688, 693 

(Minn. 2013). If the district court erroneously admits an out-of-court statement, the 

question becomes “whether the error was harmless.” State v. Robinson, 718 N.W.2d 400, 

407 (Minn. 2006). We will not reverse the district court’s evidentiary ruling “unless the 

error substantially influenced the jury’s verdict.” Carridine, 812 N.W.2d at 141 

(quotation omitted). Here, the district court admitted J.G.’s statement as a prior 

consistent statement and also referenced the residual hearsay exception. 

Prior Consistent Statement

Under Minn. R. Evid. 801(d)(1)(B), a witness’s prior statement that is consistent 

with her testimony at trial “is admissible as nonhearsay evidence if the statement is 

helpful to the trier of fact in evaluating the witness’s credibility, and if the witness 
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testifies at trial and is subject to cross-examination about the statement.” State v. Bakken, 

604 N.W.2d 106, 108-09 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000). 

Before the statement may be admitted, the district court must first make a “threshold 

determination” that the witness’s credibility has been challenged. Id. at 109; see also 

State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997) (holding that “before the statement 

can be admitted, the witness’ credibility must have been challenged”). The district court 

must then determine whether the out-of-court statement was consistent with the witness’s 

trial testimony. Bakken, 604 N.W.2d at 109. And the district court must evaluate 

whether the statement would “be helpful to the trier of fact in evaluating the witness’s 

credibility.” Id. 

Here, the district court indicated that Openshaw’s counsel was “going to be talking 

about [J.G.’s] ability to perceive things on the night in question, so her credibility is 

going to be challenged, from what I understand.” But Openshaw’s counsel did not 

comment on J.G.’s credibility in his opening statement and had not yet cross-examined 

J.G. prior to the admission of her prior recorded statement. Therefore, J.G.’s credibility 

had not yet been challenged and the statement should not have been admitted as a prior 

consistent statement.

In addition, “when a witness’ prior statement contains assertions about events that 

have not been described by the witness in trial testimony, those assertions are not helpful 

in supporting the credibility of the witness and are not admissible under this rule.” Minn. 

R. Evid. 801(d)(1)(B) 1989 comm. cmt. Here, J.G. testified that she did not remember 

(1) what happened while Openshaw was in her apartment on the night of the fire, 
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(2) saying anything to Openshaw after the fire, or (3) what she told the deputy. But

J.G.’s recorded statement contained assertions that (1) Openshaw had come to J.G.’s 

apartment to use her phone to call his girlfriend; (2) about 30 seconds before the fire 

alarm went off, he told her to get her kids downstairs “because he had a bad feeling”;

(3) after evacuation of the building, she asked Openshaw what he did and he said that he 

fell asleep with a cigarette in his girlfriend’s apartment; and (4) Openshaw had accused 

his girlfriend of cheating on him and that he was trying to get back at his girlfriend. 

J.G.’s recorded statement contained assertions that she did not describe in her testimony 

at trial. Therefore, the recorded statement was not “consistent” with her trial testimony.

Because the statement was admitted prior to any challenge to J.G.’s credibility and 

because the statement was not consistent with her trial testimony, the statement was not 

“helpful to the trier of fact in evaluating the witness’s credibility.” See Bakken, 604 

N.W.2d at 109. J.G.’s statement does not qualify as a prior consistent statement under 

rule 801(d)(1)(B). 

Residual Hearsay Exception

After ruling that the statement was admissible as a prior consistent statement, the 

district court stated, “I also believe it would fall under the 807 exception as well.” This 

exception permits the admission of hearsay statements that do not fall under the usual 

hearsay exceptions enumerated in rules 803 and 804. But prior to admission, the district 

court must determine that (1) “the statement is offered as evidence of a material fact,”

(2) “the statement is more probative on the point for which it is offered than any other 

evidence” that can be procured through reasonable efforts, (3) “the general purposes of 
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these rules [of evidence] and the interests of justice will best be served by admission of 

the statement,” and (4) the proponent of the statement made known to the adverse party 

its intent to offer the statement sufficiently in advance of trial. Minn. R. Evid. 807. 

Importantly, a party seeking to admit a statement under this exception must also 

establish, under the totality of the circumstances, that the statement has “circumstantial 

guarantees of trustworthiness” equivalent to the other hearsay exceptions. Robinson, 718 

N.W.2d at 408. District courts “should make findings explicitly on the record unless 

there is a waiver” supporting their evidentiary rulings. State v. DeRosier, 695 N.W.2d 

97, 105 (Minn. 2005). Here, the residual hearsay exception is not a valid basis for 

admitting J.G.’s statement because the district court did not make any findings regarding 

the factors listed above, particularly regarding the trustworthiness of J.G.’s statement, and 

nothing in the record affirmatively demonstrates that J.G.’s statement had “circumstantial 

guarantees of trustworthiness.”

Harmless Error

We review objected-to erroneous evidentiary rulings for harmless error. State v. 

Vang, 774 N.W.2d 566, 576 (Minn. 2009). Erroneous admission of evidence is harmless 

if there is no “reasonable possibility that the wrongfully admitted evidence significantly 

affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Part of the 

harmless-error test is to determine whether the statement was otherwise admissible. 

Robinson, 718 N.W.2d at 407-10. Even if we disagree with the district court’s reasoning 

for admitting J.G.’s statement, we will affirm the conviction if the statements are 
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admissible on other grounds. See Robinson, 699 N.W.2d at 799. We therefore will 

address other bases for admission of the statement.

Present-Sense Impression

A declarant’s prior statement “describing or explaining an event or condition made 

while the declarant was perceiving the event or condition or immediately thereafter” is 

not hearsay if the declarant testifies and is subject to cross-examination concerning the 

statement. Minn. R. Evid. 801(d)(1)(D). “The subject matter of the statement must 

describe an event or condition at or near the time the declarant perceives the event or 

condition.” Minn. R. Evid. 801(d)(1)(D) 1989 comm. cmt. A statement is 

contemporaneous for purposes of this rule so long as “there is little time to consciously 

fabricate a story.” State v. Pieschke, 295 N.W.2d 580, 583 (Minn. 1980). Here, J.G. 

made her statement at 4:50 a.m. The fire occurred more than one hour earlier, at 3:40

a.m. We conclude that the statement does not qualify as a present-sense impression. An 

hour between the incident and J.G.’s recorded statement was enough time for her to 

fabricate a story. In addition, J.G.’s statement does not “describe an event or condition” 

because it merely describes what Openshaw said to J.G. with some context.

Excited Utterance

“A statement relating to a startling event or condition made while the declarant 

was under the stress of excitement caused by the event or condition” may be admissible 

as an exception to the hearsay rule. Minn. R. Evid. 803(2). “The rationale for this 

exception stems from the belief that the excitement caused by the event eliminates the 

possibility of conscious fabrication, and insures the trustworthiness of the statement.” 
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State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (quotation omitted). Here, nothing in 

the record indicates that J.G. was “under the stress of excitement” caused by the fire 

when she gave the recorded statement to the deputy. Therefore, the statement does not 

fall under the excited-utterance exception to the hearsay exception.

Prior Inconsistent Statement

In order to qualify as a prior inconsistent statement, the statement needs to be 

“given under oath subject to the penalty of perjury.” Minn. R. Evid. 801(d)(1)(A). J.G.’s 

statement was not given under oath. Therefore, the statement does not qualify as a prior 

inconsistent statement.

Recorded Recollection

The state argues that the statement was admissible under the recorded-recollection 

hearsay exception. Minn. R. Evid. 803(5) defines a recorded recollection as:

A memorandum or 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. If admitted, the memorandum or record may be 

read into evidence but may not itself be received as an exhibit 

unless offered by an adverse party.

But J.G.’s statement was not merely “read into evidence”—it was received as an 

exhibit. Under the rule, a recorded recollection may not be received as an exhibit unless 

it is offered by the adverse party. In this case, the state, not the adverse party, offered the 

exhibit. Therefore, the statement was not admissible under the recorded-recollection 
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exception to the hearsay rule. We conclude that J.G.’s statement is hearsay and is not 

admissible under any exception to the hearsay rule.

Substantial Influence on the Verdict

We next consider whether the district court’s error prejudiced Openshaw. 

“Reversal is warranted only when the error substantially influences the jury’s decision.” 

Nunn, 561 N.W.2d at 907. Openshaw argues that J.G.’s statement was the only piece of 

evidence that the jurors requested to review during deliberations, demonstrating its 

substantial influence on the jury. But the district court noted during trial that one juror 

could not hear the recording of J.S.’s statement. The district court told the jury that the 

statement could be replayed at a different time. This could explain why the jury asked to 

replay the statement—not because the jury was substantially influenced by the statement, 

but because one juror had not heard the statement when it was played during trial. 

Pursuant to Minn. R. Crim. P. 26.03, subd. 20(2)(b), the statement was played in open 

court.

In addition, regardless of J.G.’s statement, the surveillance video and the fire 

marshal’s expert testimony provided more than sufficient evidence upon which to convict 

Openshaw. See State v. Miller, 754 N.W.2d 686, 704 (Minn. 2008) (holding that the 

district court’s erroneous admission of a hearsay statement was harmless error because 

“there was more than sufficient other evidence from which the jury could have inferred 

[guilt]”). The fire marshal testified that the fire was “intentionally set” and “caused by 

the last person that was in the apartment prior to the fire alarm system going off.” The 

fire marshal opined that Openshaw set the fire because he was seen “in the [surveillance] 
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video leaving the apartment five minutes prior to the alarm system going off.” And the 

surveillance video showed Openshaw entering the apartment unit at approximately 3:31

a.m., exiting the apartment at 3:35 a.m., and the fire alarm going off five minutes later, at 

3:40 a.m. The video does not support Openshaw’s testimony that he fell asleep with a lit 

cigarette because it shows that he was only in the apartment for four minutes. In 

addition, J.G.’s statement does not contain an admission from Openshaw that he 

intentionally set the fire. J.G.’s statement indicates that Openshaw had a “bad feeling” 

and told J.G. that she should get her children downstairs and that Openshaw was upset 

with his girlfriend and was trying to get back at her for cheating on him. While this could 

imply a motive for intentionally starting the fire, J.G.’s statement also includes Openshaw 

saying that the fire was started accidentally. 

Openshaw has not met his burden of demonstrating that there was a reasonable 

possibility that the evidentiary error significantly affected the verdict. Therefore, the 

district court’s error was harmless. 

Affirmed.