This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1886

 

Curtis Frazier,

Respondent,

 

vs.

 

Khalid Numan El-Amin,

Appellant.

 

Filed September 7, 2004

Reversed and remanded

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. PI-02-127

 

 

 

Loren H. Dorshow, Griffel & Dorshow, Chartered, 230 Wells Fargo Bank Building, 1809 Plymouth Road South, Minnetonka, MN 55305; and

 

Michael A. Pinotti, Pinotti Law Offices, 416 Bear Avenue South, Vadnais Heights, MN 55127 (for respondent)

 

Jeffrey A. Hassan, Jeffrey A. Hassan, PLC, 9130 Telford Crossing, Brooklyn Park, MN 55443 (for appellant)

 

 

 

            Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant contends that the district court erroneously allowed inadmissible evidence on the dispositive issue of the identity of respondent’s assailant and that such error was prejudicial.  Because most of the identification evidence violated Minn. R. Evid. 602 and was unfairly prejudicial to appellant, we reverse and remand.

FACTS

            In this civil assault-and-battery action, appellant Khalid Numan El-Amin challenges the admissibility of identification evidence derived from a surveillance videotape.  Although there are many inconsistencies among the trial witnesses as to the details of the incident, the core facts are undisputed.

            At about 2:00 a.m. on April 16, 2000, respondent Curtis Frazier attempted to get into a crowded elevator at a Minneapolis parking garage where he had parked his car.  Some of the occupants of the elevator objected to his entry, and when he prevented the door from closing, two men pushed him into the lobby and punched and kicked him.  Frazier claims that El-Amin was one of the assailants.  El-Amin admits that he was on the elevator but denies that he assaulted Frazier.

            The parking garage is equipped with surveillance cameras with videotaping capability.  Armon Waters was the security guard who was in a console monitoring the cameras at the time of the assault.  He testified that he saw through the real-time surveillance camera two men carry Frazier away from the elevator by the arms and then kick and punch him until he slumped against a wall.  Waters described the assailants as slender, athletic-looking African-American males between 5’11” and 6’ in height.  He did not recognize either as someone he knew personally.

            Other security guards came to the scene of the incident, but none actually saw the assault or anyone involved other than Frazier.  The incident was recorded on videotape and the on-duty guards, as well as other security personnel who reported for work the next day, viewed the videotape.  Some of the viewers identified El-Amin as one of the assailants.  Although the viewers did not know El-Amin personally, they recognized him because he was a basketball star and a professional-basketball prospect.

            A day or two after the incident, Frazier and his attorney viewed the tape.  Although they first refused, ultimately the security guards gave the tape to Frazier’s attorney.  When the attorney played the tape at his home, he found that the portion containing the incident had been recorded over with a television show.  It was never determined who altered the tape.

            El-Amin sought sanctions against Frazier for spoliation of the videotape, but the district court determined that it had not been shown that the spoliation occurred while Frazier or his attorney had possession of the tape.

            At trial, over a best-evidence objection, the court allowed security guards Terran Alexander, Michael Jungers, Clifton Hodge, and Antoine Ambrose to testify that they recognized El-Amin as one of the assailants on the videotape.  None of these trial witnesses personally saw the assault or El-Amin in the area of the incident.

            Frazier testified that El-Amin was one of his assailants.  Although Frazier did not know El-Amin by name, Antoine Ambrose told him who El-Amin was, and he later saw El-Amin’s photograph on the internet.

            The jury returned its verdict for damages in favor of Frazier, and El-Amin appealed.

D E C I S I O N

            The district court enjoys the discretion to admit or exclude evidence, and its rulings will not be reversed on appeal absent an abuse of that discretion or an erroneous application of the law.  TMG Life Ins. Co. v. County of Goodhue, 540 N.W.2d 848, 851 (Minn. 1995).  Even if an evidentiary ruling was erroneous, it will not be reversed unless it resulted in prejudice.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).  An evidentiary error is prejudicial if it might reasonably be said to have changed the outcome of the trial.  Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51-52 (Minn. App. 1998); see State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (holding that an error in admitting evidence is prejudicial “if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted.”).

            The central and dispositive issue in this case is whether Khalid El-Amin was one of the men who assaulted Curtis Frazier.  Of all the trial witnesses, only Frazier was at the scene of the assault.  Armon Waters was not at the scene but observed the incident through a surveillance camera.  Minn. R. Evid. 602 provides in part that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”

            Although Waters saw the assailants, he did not recognize either, and the physical description he gave did not fit El-Amin.  He did not know El-Amin, did not recognize him, and only heard from another security guard that El-Amin was one of the assailants.  Thus, even though Waters had firsthand knowledge of the incident, none of what he related in his testimony identifies El-Amin as one of the assailants.

            Frazier, as the victim of the assault, had firsthand knowledge of the incident and his description of one of the assailants arguably matched that of El-Amin.  Although his identification testimony was admissible, there was evidence that he was intoxicated, and there is a tenable inference that his condition could have affected his ability to identify his assailants.  Of course, his credibility is a jury question.

            It appears that the principal purpose of the testimony of the security guards who viewed the videotape was to identify El-Amin as a perpetrator of the assault.  But none of those witnesses met the rule 602 competency threshold because none had firsthand knowledge of the incident or of the identities of the assailants.  The security guards were presented as the functional equivalent of eyewitnesses to an event that none actually witnessed.  Thus, we conclude that it was an error of law for the court to receive such testimony in violation of rule 602.

We also conclude that the error was unfairly prejudicial.  The erroneously admitted evidence pertained to the most critical issue in the case.  The only other identification evidence in the trial was less than compelling.  There is a reasonable possibility that had the jury not heard the positive testimony of the four security guards who only watched the videotape but rather had heard only Frazier’s testimony, the outcome might have been otherwise. 

Because of our holding, we need not reach the best-evidence and spoliation issues.

Reversed and remanded.