This opinion is nonprecedential except as provided by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
A20-1450

Paul Matthew Ashfeld, petitioner,

vs.

State of Minnesota,
Respondent.

Filed June 21, 2021

Meeker County District Court

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant

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

Brandi Schiefelbein, Meeker County Attorney, John P. Fitzgerald, Assistant County

Considered and decided by Connolly, Presiding Judge; Hooten, Judge; and

Bratvold, Judge.

NONPRECEDENTIAL OPINION

HOOTEN, Judge

In this appeal from an order denying postconviction relief, appellant argues that the

district court erred by admitting prejudicial hearsay statements of the victim and the
prosecutor committed misconduct during closing argument by comparing the victim to a

“hunted animal.” We affirm.

FACTS

Respondent State of Minnesota charged Appellant Paul Matthew Ashfeld with first-

degree, second-degree, and third-degree criminal sexual conduct, as well as misdemeanor

domestic assault. These charges were based on allegations that Ashfeld had used force to

engage in sexual contact and sexual penetration with the victim—his ex-girlfriend and the

mother of his child—and had thereby caused the victim physical harm.

Prior to trial, the state filed a motion in limine seeking admission of two audio

recordings of out-of-court statements the victim had made about the assault, arguing that

they were admissible as prior consistent statements and statements of identification. The

district court granted the state’s motion, and both recordings were eventually played for

the jury at trial. Ashfeld objected to the admission of the second of these recordings, a

statement the victim had made to law enforcement, as being both cumulative and

inadmissible hearsay. The district court also permitted, over Ashfeld’s objection that it

was cumulative and repetitive, testimony by a police detective in which the detective

recounted an out-of-court statement the victim had made describing the sexual assault. The

jury found Ashfeld guilty on all counts, and the district court entered a judgment of

conviction on count one—the charge of first-degree criminal sexual conduct.

Instead of filing a direct appeal, Ashfeld petitioned for postconviction relief. He

waived an evidentiary hearing and instead requested that the postconviction court base its

decision on the petition, responsive pleadings, and trial record. A district court judge other

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than the trial judge, sitting as the postconviction court, denied Ashfeld’s petition. Ashfeld

now appeals.

DECISION

“We review the denial of a petition for postconviction relief for an abuse of

discretion.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). “A postconviction court

abuses its discretion when it has exercised its discretion in an arbitrary or capricious

manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual

findings.” Id. (quotation omitted). “Legal issues are reviewed de novo.” Id.

I. The postconviction court correctly concluded that the district court had
not abused its discretion in admitting evidence of the victim’s out-of-
court statements.

Ashfeld first argues that the district court abused its discretion in admitting two

pieces of evidence: an audio recording and transcript of a statement the victim made to

police on the morning of the sexual assault and testimony by a police detective recounting

the victim’s statements describing the assault. Ashfeld asserts that he was prejudiced by

these errors and that the postconviction court therefore erred by denying his petition. We

discuss each piece of evidence in turn.

A. Evidence of the Victim’s Out-of-Court Statement

The state filed a motion in limine seeking to admit evidence of an out-of-court

statement the victim had made to law enforcement later on the same morning of her assault.

In this recorded statement, the victim described how Ashfeld had returned, drunk, to the

home they shared earlier that same day and had violently sexually assaulted her over a span

of nearly two hours. The state argued that evidence of this statement was admissible

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because the statement was both a prior consistent statement and a statement of

identification and therefore not hearsay. The district court granted the state’s motion,

announcing that it was “allowing the victim’s prior consistent statements and statements of

identification . . . [assuming], of course, [that] the victims [sic] testifies prior to any – any

of these consistent statements being discussed.”

During opening argument, Ashfeld’s trial counsel argued that the victim was

fabricating her allegations against Ashfeld. Then, during the prosecutor’s direct

examination of the victim, a recording of the victim’s prior statement was played for the

jury over the objection of Ashfeld’s trial counsel that it was “cumulative and hearsay.” A

transcript of the recording was also admitted into evidence. The district court did not make

any explicit findings that the victim’s credibility had been challenged, that the evidence of

the victim’s prior statement would be helpful to the trier of fact, or that the prior statement

and appellant’s trial testimony were consistent.

Ashfeld challenged the district court’s evidentiary ruling on two grounds in his

postconviction petition. First, Ashfeld argued that the district court erred by concluding

that the victim’s statement was admissible as a statement of identification. Second, Ashfeld

contended that the district court erred by concluding that the victim’s statement was

admissible as a prior consistent statement.

The postconviction court concluded that Ashfeld’s first argument—that the district

court had erred by concluding that evidence of the victim’s out-of-court statement was

admissible as a statement of identification—was “without merit.” Specifically, the

postconviction court concluded that the district court had not relied on the rule exempting

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statements of identification from the definition of hearsay, because identification of the

perpetrator had not been at issue at trial. Finally, the postconviction court concluded that,

even if the district court had abused its discretion in admitting the victim’s out-of-court

statement, Ashfeld had “failed to establish how this admission would have had a prejudicial

effect on the jury’s verdict,” given the strength of the state’s case against him.

The postconviction court also concluded that the district court had not abused its

discretion in admitting evidence of the victim’s out-of-court statement to law enforcement

as a prior consistent statement. The postconviction court found “that credibility was central

to this case,” as “the alleged victim and suspect were the only ones with personal

knowledge thereby making each account apposite at times and challenged.” Noting that

Ashfeld’s trial counsel challenged the victim’s credibility during opening statement, the

postconviction court concurred that the victim’s out-of-court statement “was helpful to the

jury to evaluate her testimony as the victim of the crime and aided the jury in determining

credibility by demonstrating whether her memory was similar or if she had an improper

motive to fabricate the incident.” The postconviction court further determined that the

victim’s “trial testimony was not inconsistent with her prior out of court statement,” as “she

was consistent as to where the assault occurred, who the perpetrator was, and the nature of

the acts that occurred.”

“Evidentiary rulings rest within the sound discretion of the district court, and [an

appellate court] will not reverse an evidentiary ruling absent a clear abuse of discretion.”

State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). “Under an abuse-of-discretion standard,

[an appellate court] may reverse the district court when the district court’s ruling is based

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on an erroneous view of the law or is against logic and the facts in the record.” State v.

Bustos, 861 N.W.2d 655, 666 (Minn. 2015) (quotation omitted). “When challenging

evidentiary rulings, the appellant has the burden of establishing that the [district] court

abused its discretion and that appellant was thereby prejudiced.” State v. Valentine, 787

N.W.2d 630, 638 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010) (alteration in

original) (quotation omitted). Where a postconviction petitioner has not had his conviction

reviewed on direct appeal, the standards of review normally applied to a direct appeal are

applied to his postconviction petition. Santiago v. State, 644 N.W.2d 425, 439 (Minn.

2002).

Hearsay evidence is generally inadmissible. Minn. R. Evid. 802. Hearsay “is 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). But

several types of out-of-court statements are excluded from the definition of hearsay—and

are therefore not barred by the general rule against hearsay—even though they are offered

to prove the truth of the matter asserted.

A statement is excluded from the definition of hearsay if the declarant—that is, the

person who made the statement—“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.” Minn. R. Evid. 801(d)(1). Such a “prior consistent statement” may only be

admitted if the district court makes several determinations. State v. Bakken, 604 N.W.2d

106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000). First, the district court

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must determine that the witness’s credibility has been challenged. Id. The witness’s

credibility may be challenged on cross-examination, but it may also be challenged in an

opening statement. State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997). Second, the

district court must determine that “the prior consistent statement would be helpful to the

trier of fact in evaluating the witness’s credibility.” Bakken, 604 N.W.2d at 109. “It is

unlikely that mere repetition of a statement implies veracity.” Id. “But a prior consistent

statement might bolster credibility by showing a fresh complaint, obviating an improper

influence or motive, providing a meaningful context, or demonstrating accuracy of

memory.” Id. Finally, the trial court must determine that “the prior statement and the trial

testimony are consistent with each other.” Id. The trial testimony and the prior statement

need not be identical to be consistent. Id.

A statement is also excluded from the definition of hearsay if “[t]he declarant

testifies at the trial or hearing and is subject to cross-examination concerning the statement,

and the statement is . . . one of identification of a person made after perceiving the person,

if the court is satisfied that the circumstances of the prior identification demonstrate the

reliability of the prior identification.” Minn. R. Evid. 801(d)(1). This rule “does not extend

to the out-of-court accusation against an offender whose identity was well-known to the

victim.” State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006).

The postconviction court correctly concluded that the district court did not abuse its

discretion in admitting evidence of the victim’s out-of-court statement to law enforcement

as evidence of a prior consistent statement. A prior consistent statement is only admissible

if the district court determines that (1) the declarant-witness’s credibility has been

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challenged, (2) the prior statement would be helpful to the factfinder in assessing the

declarant-witness’s credibility, and (3) the prior statement and the declarant-witness’s

testimony are similar. Bakken, 604 N.W.2d at 109. As noted, Ashfeld’s trial counsel

challenged the victim’s credibility during opening statement by claiming that she was

fabricating her allegations against Ashfeld. It would be reasonable to conclude that

evidence of the victim’s prior statement would help the factfinder assess her credibility;

this evidence went beyond “mere repetition” and bolstered the victim’s credibility by

demonstrating that she reported the assault to police soon after it occurred and showing

that her memory of the assault was consistent with her prior statement at the time she

testified. And the prior statement and the victim’s trial testimony were consistent in terms

of location, perpetrator, and manner of abuse. Finally, while it is true that the district court

did not make explicit findings regarding the Bakken factors, Ashfeld cites no authority as

support for the proposition that the district court was required to make such findings on the

record before admitting evidence of the victim’s out-of-court statement.

The postconviction court did, however, err in concluding that Ashfeld’s other

argument—that the district court had erred by concluding that evidence of the victim’s out-

of-court statement was admissible as a statement of identification—was “without merit.”

Here, the district court stated prior to trial that it was “allowing the victim’s prior consistent

statements and statements of identification.” It is unclear whether the district court was

relying, in part, on the rule exempting statements of identification from the definition of

hearsay when it admitted evidence of the victim’s out-of-court statement to law

enforcement. That rule “does not extend to the out-of-court accusation against an offender

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whose identity was well-known to the victim,” Robinson, 718 N.W.2d at 408, and Ashfeld

was well known to the victim in this case, as the two share a child. As such, if the district

court relied on the rule concerning statements of identification to admit the statement at

issue, that decision would have been legally erroneous.

Nevertheless, the district court and the postconviction court correctly concluded that

the statement at issue was a prior consistent statement and that evidence of the statement

was therefore admissible non-hearsay. Accordingly, Ashfeld has failed to demonstrate that

the postconviction court erred by concluding that the district court did not abuse its

discretion in admitting evidence of the victim’s out-of-court statement to law enforcement.

B. The Detective’s Testimony

The district court permitted the prosecutor to elicit testimony from a police

detective, in which the detective recounted statements the victim had made describing the

assault. Specifically, the detective testified about how the victim took him through the

crime scene, describing what happened where and how damage to the home resulted from

Ashfeld’s actions. The detective also testified about how he collected physical evidence

and took photographs during this tour of the crime scene. A number of these photographs

were admitted into evidence. Ashfeld’s trial counsel objected to the detective’s testimony

as cumulative, but the district court overruled that objection.

In his petition for postconviction relief, Ashfeld argued that the district court had

abused its discretion in permitting this testimony by the detective, as the minimal probative

value of the evidence was outweighed by its cumulative character. The postconviction

court disagreed, concluding that the detective’s testimony “was not cumulative because he

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aided the jury in the integrity of the entire case, allowed the jury to assess pieces of the

case, or determine credibility of the other evidence and witnesses and not just [the victim].”

In Minnesota, all relevant evidence is admissible at trial unless the United States or

Minnesota Constitutions, the Minnesota Rules of Evidence, or other court rules provide

otherwise. Minn. R. Evid. 402. Minn. R. Evid. 403 provides that “evidence may be

excluded if its probative value is substantially outweighed” by the consideration

of “needless presentation of cumulative evidence.” Evidence may be needlessly

cumulative when it is “merely duplicative,” Moore v. State, 945 N.W.2d 421, 438 (Minn.

App. 2020), review denied (Minn. Aug. 11, 2020) (quotation omitted), or when it is offered

as proof of a fact, the existence of which has been shown through other evidence and has

not been contradicted by the opposing party. See State v. Zumberge, 888 N.W.2d 688, 696

(Minn. 2017).

The postconviction court correctly concluded that the district court had not abused

its discretion in admitting the detective’s testimony. Contrary to Ashfeld’s suggestions,

the evidence at issue did more than merely repeat the statements the victim had made while

testifying and in the various audio recordings played for the jury. It provided context for

law enforcement’s investigation of the assault, linking the photographs of the crime scene

that were admitted into evidence with the events that the victim described in her testimony

and elsewhere. Without this connection, the jury would have been left to speculate about

whether those photographs depicted damage that resulted from the events the victim

described, or whether this damage was instead unrelated to the assault. And while the

detective’s testimony did, to some extent, repeat the victim’s statements about the assault,

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those statements were not the focus of the testimony. The testimony was, instead, focused

on the investigative process whereby law enforcement gathered evidence. Therefore, the

postconviction judge did not err by concluding that the district court properly admitted the

detective’s testimony.

II. The postconviction court correctly concluded that the prosecutor had
not committed prejudicial plain error by inflaming the passions of the
jury during closing argument.

The prosecutor made the following statement during his rebuttal to Ashfeld’s

closing argument:

There was also some comment about [the victim’s] first call.
The first call to her boyfriend . . . . I believe when she testified
she indicated just as to why she didn’t immediately call 911.
She was – she was scared and she was alone. And think about
the context of this whole thing. She had just previously called
under duress and told her boyfriend her sit – that she cares
about, the person that she’s still dating that things were over
between them. Why wouldn’t she call him first? Why wouldn’t
she call the person she cares about, she loves, to tell him what
happened to her? And of course, this all is in a context of a rape
just occurring, something terrible had happened to her,
something that might make a rational person not think or act
the way we expect them to. You know, some of you – I didn’t
– I didn’t ask this during jury selection, maybe it was somewhat
covered but some of you may be hunters or know hunters. And
with hunting you see animals, you see deer, what are their
impulses when they encounter a threat? Sometimes they flee,
sometimes they freeze. Some animals, they fight. Fight, flight,
freeze. All of those reactions you heard about. [The victim]
fought. She tried to get away and then this whole context of
things that during and the after she wasn’t quite reacting to the
way – way things maybe we didn’t expect her to. Maybe she
didn’t call 911 right away but [the police detective] told you
about that in his nine plus years of experience working criminal
sexual conduct investigations, it is common – it is common for
individuals who have been sexually assaulted not to call 911
right away. He wasn’t telling you to ignore your common

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 sense. He was telling you about his experience on the job in
this role. Take that back to you – to the deliberation room when
your analy – when you’re analyzing that issue.

Ashfeld did not object to this statement before the district court. He nevertheless contends

that it constitutes prejudicial plain error requiring the reversal of his conviction.

In his petition for postconviction relief, Ashfeld argued that the prosecutor’s

statements constituted prejudicial plain error requiring reversal of his conviction. The

postconviction court disagreed, concluding that “there was no prosecutorial misconduct in

closing arguments with reference to [the victim] as a hunted animal whose behavior was

to freeze initially while experiencing the trauma of the incident.” The postconviction court

went on to conclude that, “[e]ven if error was committed in closing arguments, and the

error was plain, [Ashfeld] is not entitled to the relief he seeks because he failed to establish,

when assessing the closing arguments as a whole, how the jury was prejudiced by the

analogy raised one time in the entire context of all closing arguments.”

“A prosecutor must avoid inflaming the jury’s passions and prejudices against the

defendant.” State v. Morton, 701 N.W.2d 225, 236 (Minn. 2005) (quotation omitted).

“When credibility is a central issue, we pay special attention to statements that may inflame

or prejudice the jury.” Id. When an appellant has failed to object during trial, we review

allegations of prosecutorial misconduct under a modified plain error standard. State v.

Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this standard, the appellant bears the

burden of establishing an error that is plain. Id. An error is plain when it is “clear or

obvious,” as where the error “contravenes case law, a rule, or a standard of conduct.” State

v. Cao, 788 N.W.2d 710, 715 (Minn. 2010). If the appellant establishes plain error, “the

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burden shifts to the State to demonstrate that the plain error did not affect the [appellant]’s

substantial rights.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). The state bears

the burden of proving that “there is no reasonable likelihood that the absence of the

misconduct in question would have had a significant effect on the verdict of the jury.”

Ramey, 721 N.W.2d at 302 (quotations omitted). In deciding whether the misconduct

significantly affected the jury’s verdict, we consider such factors as “the pervasiveness of

improper suggestions and the strength of evidence against the defendant.” Parker, 901

N.W.2d at 926 (quotations omitted). If the state fails to demonstrate that the error did not

affect the appellant’s substantial rights, we then consider “whether the error should be

addressed to ensure fairness and the integrity of judicial proceedings.” Id.

The postconviction court correctly concluded that the prosecutor had not committed

prejudicial plain error. First, it is far from “clear or obvious” that the statement at issue

amounted to prosecutorial misconduct by inflaming the passions and prejudices of the jury.

During his closing argument, Ashfeld’s trial counsel attacked the victim’s credibility by

questioning why the first call she made after the assault was to her boyfriend, why she then

went to her friend’s house, and why she did not call 911 until she arrived at her place of

work later that morning. The prosecutor’s statement appears to have been a response to

this line of argument, not an attempt to inflame the passions and prejudices of the jury

against Ashfeld. While Ashfeld is correct in noting that we have previously held that a

prosecutor impermissibly inflames the passions and prejudices of the jury by referring to a

criminal defendant as a “predator,” State v. Duncan, 608 N.W.2d 551, 556 (Minn. App.

2000), review denied (Minn. May 16, 2000), the present case is distinguishable: nowhere

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in his closing argument and rebuttal did the prosecutor refer to Ashfeld as a predator or any

variation of that term, and, as noted above, the prosecutor’s statement comparing the

victim’s behavior to that of a hunted animal was an attempt to respond to Ashfeld’s attacks

on her credibility, not to implicitly argue that Ashfeld was a predator.

Second, the state has carried its burden of demonstrating that there is no reasonable

likelihood that the absence of the statement at issue would have substantially affected the

verdict of the jury. The statement at issue was only one page in a 23-page closing argument

and rebuttal. The characterization of the victim as a hunted animal was not the central

motif of the state’s case against Ashfeld, which instead focused on the victim’s own

testimony at trial and the physical, audio, and photographic evidence of the assault. And

most importantly, the state’s case was strong, as is discussed above. On this record, there

is not a reasonable likelihood that the absence of the statement at issue would have

substantially affected the verdict of the jury. As such, and because that statement did not

amount to plainly erroneous prosecutorial misconduct, we need not reverse Ashfeld’s

conviction.

Affirmed.

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