This opinion will be unpublished and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
A16-0226
Gary Cornelius Whitehurst, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed September 12, 2016
Affirmed
Johnson, Judge
Ramsey County District Court
File No. 62-CR-13-4301
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
In 2013, a Ramsey County jury found Gary Cornelius Whitehurst guilty of second-
degree criminal sexual conduct based on evidence that he touched the vaginal area of a
five-year-old girl. He did not pursue a direct appeal. In 2015, Whitehurst petitioned for
postconviction relief, arguing that the trial court erred when it overruled his hearsay
objections to the testimony of two of the state’s witnesses. The postconviction court denied
relief. We conclude that the postconviction court did not err by reasoning that the
challenged evidence was admissible as non-hearsay pursuant to rule 801(d)(1)(B) of the
Minnesota Rules of Evidence. Therefore, we affirm.
FACTS
In November 2012, I.M., a five-year-old girl, lived in the lower unit of a duplex in
Minneapolis with her mother, C.M., and C.M.’s mother, L.M. During the evening of
November 18, 2012, C.M. and L.M. went out to play bingo. They left I.M., her two
younger siblings, and L.M.’s ten-year-old son in the care of a family friend, A.R., who
lived in the upper unit of the duplex and was caring for his two-year-old daughter. Four
other adult men lived in the upper unit at that time, including J.M., who is an uncle of C.M.,
and Whitehurst, who is a cousin of L.M.
Approximately two days later, I.M. disclosed to L.M. that Whitehurst had touched
or rubbed her vaginal area while C.M. and L.M. were out playing bingo. L.M. told C.M.
that she should speak with I.M. C.M. spoke with I.M. and received the same information.
C.M. and L.M. contacted police the next day.
In June 2013, the state charged Whitehurst with one count of second-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2012). Before trial,
Whitehurst sought leave to admit evidence that might prove that the alleged crime was
committed not by him but by some other person who was present in the upper unit that
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evening. Specifically, Whitehurst sought to introduce evidence that J.M. had engaged in
inappropriate sexual behavior toward C.M. when each was a child and that L.M.’s ten-
year-old son had engaged in inappropriate sexual behavior toward I.M. approximately four
years earlier. The trial court granted Whitehurst’s motion to admit the proffered
alternative-perpetrator evidence.
The case was tried in October 2013. In his opening statement, the prosecutor
preemptively addressed the alternative-perpetrator issue by asking the jury to regard with
caution “things that happened years ago regarding other individuals” and to pay close
attention to the evidence of “what happened on November 18th and 19th of 2012.” The
prosecutor asked the jury to focus on the fact that they would not “hear any evidence that
[I.M.] has said anyone other than the defendant touched her that night.” Whitehurst’s
attorney, in her opening statement, mentioned that numerous persons were living in the
upstairs apartment at that time and asked the jury to take note that J.M. and L.M.’s ten-
year-old son had not provided statements during the investigation and would not be
testifying at trial. Whitehurst’s attorney stated that the jury would perceive inconsistencies
in witnesses’ testimony about the events that occurred before and after the evening in
question.
The state called I.M. as its first witness. She testified that, while her mother and
grandmother were away, Whitehurst touched her “private parts” inside her pajamas while
he was sitting next to her on a couch, watching television in the living room. She also
testified that A.R. was nearby but was not in the room when Whitehurst touched her. She
further testified that Whitehurst’s actions made her “mad.”
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The state next called C.M., who testified that I.M. seemed agitated for a couple of
days after the bingo outing. C.M. testified that she noticed that I.M.’s vaginal area was red
and irritated, and that I.M. said that it was itchy and that it hurt, but that I.M. also said that
toilet paper was the reason. C.M. testified that I.M. later told her that, while she and L.M.
were playing bingo, Whitehurst sat on the couch next to where I.M. was lying, said that he
loved her and that she was “very, very beautiful,” and touched her “private area,” initially
on top of the blanket, then on top of her underwear, and then inside her underwear. C.M.
testified that I.M. told her “that he did it really hard, and that it really, really hurt her.” The
state then called L.M., who testified that, two days after she and C.M. had played bingo,
I.M. told her that Whitehurst had “rubbed” her “private” “inside of her underwear” “really
hard” while C.M. and L.M. were away. L.M. also testified that I.M. said that she did not
talk about the incident earlier because she was afraid to tell anyone what had happened.
Whitehurst objected to C.M.’s testimony and L.M.’s testimony concerning I.M.’s
statements about Whitehurst’s conduct. Whitehurst’s attorney argued, among other things,
that the testimony consisted of inadmissible hearsay. The trial court overruled that
objection on the ground that I.M.’s statements were prior consistent statements and, thus,
admissible non-hearsay. See Minn. R. Evid. 801(d)(1)(B).
The state also called A.R. and a St. Paul police officer as witnesses. The defense
called two witnesses: an investigator in the public defender’s office and a Ramsey County
child-protection worker. Whitehurst did not testify. The jury found Whitehurst guilty.
The district court imposed a sentence of 36 months of imprisonment but stayed execution.
Whitehurst did not file a direct appeal from his conviction and sentence.
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In October 2015, with the assistance of counsel, Whitehurst petitioned for
postconviction relief. In his petition, he argued that the trial court erred by overruling his
hearsay objections to the testimony of C.M. and L.M. concerning I.M.’s prior statements.
The postconviction court denied the petition on the ground that C.M.’s testimony and
L.M.’s testimony was non-hearsay under rule 801(d)(1)(B) of the Minnesota Rules of
Evidence. The postconviction court reasoned in the alternative that, even if the trial court
had erred by overruling Whitehurst’s objections, the admission of the testimony was
harmless. Whitehurst appeals.
DECISION
Whitehurst argues that the postconviction court erred by denying his petition.
Specifically, Whitehurst argues that C.M.’s testimony and L.M.’s testimony contained
inadmissible hearsay because the state did not satisfy two requirements of rule
801(d)(1)(B) and that the erroneous admission of the testimony was not harmless.
If a criminal offender does not pursue a direct appeal but later raises an issue of
procedural error in a postconviction proceeding, the postconviction action “is substantially
similar in scope to a direct appeal.” Deegan v. State, 711 N.W.2d 89, 94 (Minn. 2006). If
Whitehurst had raised a hearsay issue on direct appeal, we would have applied an abuse-
of-discretion standard of review. See State v. Nunn, 561 N.W.2d 902, 906-07 (Minn.
1997). In general, we apply an abuse-of-discretion standard of review to a decision to grant
or deny postconviction relief. Miles v. State, 840 N.W.2d 195, 200 (Minn. 2013). Thus,
we apply an abuse-of-discretion standard of review in this appeal.
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Hearsay evidence is defined as an out-of-court statement that is offered to prove the
truth of the matter asserted in the statement. Minn. R. Evid. 801(c); State v. Litzau, 650
N.W.2d 177, 182-83 (Minn. 2002). Hearsay evidence is inadmissible as substantive
evidence unless it is within an exception to the hearsay rule. Minn. R. Evid. 802; State v.
Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999). But some out-of-court statements are not
considered hearsay. Minn. R. Evid. 801(d). For example, a prior statement by a witness
that is consistent with the witness’s trial testimony is considered non-hearsay and, thus, is
admissible. 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.
An out-of-court statement may be admitted as non-hearsay pursuant to rule
801(d)(1)(B) only if the district court makes a threshold determination that the witness’s
credibility has been challenged. State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004);
State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24,
2000). In addition, an out-of-court statement may be admitted as non-hearsay pursuant to
rule 801(d)(1)(B) only if the statement is consistent with the witness’s trial testimony.
Nunn, 561 N.W.2d at 909; Bakken, 604 N.W.2d at 109. In this case, Whitehurst argues
that C.M.’s testimony and L.M.’s testimony about I.M.’s prior out-of-court statements
should have been excluded because these two requirements of rule 801(d)(1)(B) were not
satisfied.
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A.
Whitehurst first contends that C.M.’s testimony and L.M.’s testimony were not
admissible pursuant to rule 801(d)(1)(B) because, he asserts, I.M.’s credibility was not
challenged.
The purpose of rule 801(d)(1)(B) is to allow a party “‘to enhance the credibility of
a witness.’” State v. Farrah, 735 N.W.2d 336, 344 (Minn. 2007) (quoting 11 Peter N.
Thompson, Minnesota Practice – Evidence § 801.01 (3d ed. 2001)). That purpose is not
triggered, however, unless the credibility of the witness has been challenged. See id.
Furthermore, “the [out-of-court] statement must bolster the witness’ credibility with
respect to that aspect of the witness’ credibility that was challenged.” Nunn, 561 N.W.2d
at 909.
In this case, the trial court expressly considered whether I.M.’s credibility had been
challenged and concluded that it had been, even though she had not explicitly been accused
of lying. The trial court reasoned that “a lack of cross-examination of this witness about a
specific topic doesn’t necessarily mean that the witness’s credibility on that issue hasn’t
been put into play.” The trial court also reasoned that “the central issue in this case is
[I.M]’s credibility when she says that the defendant was with her on the couch, [and]
touched her privates under her pajamas.” The trial court determined that I.M.’s credibility
was being challenged based on Whitehurst’s attorney’s opening statement and on “the
essence of the allegation.” The postconviction court rejected Whitehurst’s argument by
reasoning that Whitehurst sought to discredit and impeach I.M. by suggesting in the
opening statement and in cross-examination that another person sexually abused her.
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The record reveals that the defense theory of the case was that someone else who
was present in the upstairs apartment (specifically, J.M. or L.M.’s ten-year-old son)
sexually abused I.M. that night. Whitehurst successfully persuaded the trial court to allow
him to introduce alternative-perpetrator evidence. The defense strategy plainly was to
convince the jury that I.M. either did not know the truth or did not tell the truth about the
identity of the person who touched her vaginal area. The defense theory is inherently
inconsistent with I.M.’s trial testimony that Whitehurst touched her vaginal area. Thus,
the trial court did not abuse its discretion by ruling that I.M.’s credibility was challenged,
even though Whitehurst’s trial counsel did not explicitly accuse her of lying or of
misperceiving events.
B.
Whitehurst also contends that C.M.’s testimony and L.M.’s testimony were not
admissible pursuant to rule 801(d)(1)(B) because, he asserts, I.M.’s out-of-court statements
were not consistent with her trial testimony.
Because the purpose of rule 801(d)(1)(B) is to allow a party to enhance the
credibility of a witness, the rule does not apply if “a witness’ prior statement contains
assertions about events that have not been described by the witness in trial testimony.”
Farrah, 735 N.W.2d at 344 (citing Minn. R. Evid. 801(d)(1), 1989 comm. cmt.). This
requirement is justified by the principle that “‘the exception should not be the means to
prove new points not covered in the testimony of the speaker.’” Id. (quoting 4 Christopher
B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 405 (2d ed. 1994)). In addition,
admission under rule 801(d)(1)(B) is inappropriate if there are “inconsistencies [that]
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directly affect the elements of the criminal charge.” Bakken, 604 N.W.2d at 110. To be
deemed consistent, however, the “trial testimony and the prior statement need not be
identical” but, rather, need only be “substantially consistent.” State v. Zulu, 706 N.W.2d
919, 924-25 (Minn. App. 2005).
In this case, the trial court stated on the record that I.M.’s prior statements, as
described in C.M.’s testimony, were substantially consistent with I.M.’s trial testimony.
The postconviction court determined that, “[w]ith respect to the elements of the offense,
I.M.’s in-court and prior statements are entirely consistent.” Whitehurst contends that
C.M.’s testimony and L.M.’s testimony included details that were not included in I.M.’s
trial testimony, such as Whitehurst’s statement to I.M. that she was “very beautiful” and
I.M.’s statement that she was afraid to tell anyone what Whitehurst had done. Contrary to
Whitehurst’s contention, the essence of I.M.’s prior out-of-court statements and the essence
of her trial testimony are the same: that Whitehurst touched or rubbed her “private part”
when she was lying on the couch while her mother and grandmother were out playing
bingo. I.M. consistently described the nature of the conduct, the identity of the perpetrator,
the location of the conduct, and the approximate time of the incident. The law is clear that
statements do not need to be identical to be “consistent” for purposes of this rule. Id. The
differences between I.M.’s out-of-court statements and her trial testimony are not the result
of inconsistencies but, rather, the fact that her out-of-court statements were more extensive.
See id. (affirming under rule 801(d)(1)(B) in criminal-sexual-conduct case despite
inconsistencies in details of incidents). Thus, the trial court did not abuse its discretion by
ruling that I.M.’s out-of-court statements were consistent with her trial testimony.
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Before concluding, we note that Whitehurst filed a pro se supplemental brief. We
may consider the pro se supplemental brief to the extent that it includes arguments that
were presented to the postconviction court, but we may not consider it to the extent that it
goes beyond the arguments that were presented to the postconviction court. Davis v. State,
784 N.W.2d 387, 391 (Minn. 2010). Whitehurst’s pro se supplemental brief does not raise
any issues that were presented to the postconviction court but not included in the brief
prepared and filed by appellate counsel. Thus, we need not discuss any of the issues raised
in his pro se supplemental brief.
In sum, the postconviction court did not abuse its discretion by reasoning that the
trial court did not err when it overruled Whitehurst’s hearsay objections. Accordingly, the
postconviction court did not err by denying Whitehurst’s petition for postconviction relief.
Affirmed.
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