may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
State of Minnesota,
William Howard Meech,
Dodge County District Court
File No. KX02686
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Paul Kiltinen, Dodge County Attorney, Courthouse, 22 Sixth Street East, Mantorville, MN 55955-2220 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of and sentence for first-degree criminal sexual conduct, appellant argues that the district court committed plain error by admitting video tapes of out-of-court interviews of the victim and the victim’s brother. We reverse and remand for a new trial.
Appellant William Howard Meech was convicted of first- and second-degree criminal sexual conduct following an incident that allegedly occurred when his 11-year-old granddaughter, A.L., and her twin brother stayed overnight with appellant and his wife. The allegations came to light when A.L.’s mother and her aunt noticed a change in A.L.’s behavior after she stayed at appellant’s home in September 2002. A.L. later told her mother what happened.
Jennifer Adamson, a child protection worker, interviewed A.L. Adamson used the CornerHouse protocol for interviewing children. Adamson was aware of A.L.’s allegations before the interview. The interview was videotaped, and the tape was admitted into evidence and played to the jury without objection before A.L. took the witness stand. During the interview, A.L. explained that (1) appellant pulled her pants down and touched her under her clothes and inside her private parts with his hand, a pencil, and a Lego toy; (2) appellant told A.L. to “shut up”; (3) the incident occurred in the living room of appellant’s home; and (4) A.L.’s twin brother saw appellant touch A.L.
Sheriff Gary Thompson interviewed A.L.’s brother. This interview was also videotaped, and the tape was admitted into evidence without objection and played to the jury. Thompson testified that A.L.’s brother had difficulty explaining in his own words what happened and responded nonverbally to several of Thompson’s questions. During the interview, A.L.’s brother initially denied seeing appellant touch A.L. but later demonstrated with a doll how he saw appellant touch A.L.
After the videotape of the interview with A.L.’s brother was played to the jury, A.L.’s brother was found incompetent to testify, and he did not testify at trial. A.L. testified at trial, but she could not remember what she told Adamson, and she was unable to testify about what happened to her. When asked by the prosecutor if what she told Adamson about her grandfather was true, A.L. shrugged her shoulders.
Appellant did not testify at trial, but the state introduced and played to the jury a recorded statement that he made to Sheriff Thompson. In the statement, appellant denied A.L.’s allegations and denied that A.L. stayed overnight at his house that weekend. When asked why A.L. might make up such a story, appellant explained that A.L. was angry with him because she does not get her way when she stays at his house.
The jury found appellant guilty of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), and second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2002).
Appellant argues that the out-of-court videotaped interviews of A.L. and her brother should not have been admitted into evidence because (1) A.L.’s brother did not testify and, therefore, (a) his out-of-court statement was inadmissible hearsay, and (b) admitting the out-of-court statement violated appellant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution; and (2) A.L.’s out-of-court statements were inconsistent with her trial testimony and, therefore, the statements did not qualify as prior consistent statements under Minn. R. Evid. 801. Appellant acknowledges that he did not object to the out-of-court statements and asks this court to review the erroneous admission of the statements as plain error.
“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). When a defendant does not object to the admission of evidence, our review is under the plain-error standard. Minn. R. Crim. P. 31.02; State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” Strommen, 648 N.W.2d at 686 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997))). “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 686 (quotations omitted)).
Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally inadmissible, subject to certain exceptions. Minn. R. Evid. 801(c), 802, 803, 804. An out-of-court statement is not hearsay and is admissible as substantive evidence 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.” Minn. R. Evid. 801(d)(1)(B); State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997). “[B]efore [a] statement can be admitted [under rule 801(d)(1)(B)], 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.” Nunn, 561 N.W.2d at 909. The rule anticipates that the witness testifies before the district court determines whether to admit the prior statement. See Minn. R. Evid. 801(d)(1) 1989 comm. cmt.
Appellant asserts that the out-of-court statements were initially offered under rule 801(d)(1)(B), but the record does not clearly indicate the district court’s basis for admitting the statements. The record shows only that the state offered the statements, there was no objection, and the statements were admitted and played to the jury before the children were called to testify.
After the videotape of A.L.’s brother’s interview was admitted and played to the jury, the district court conducted a competency hearing outside the jury’s presence and determined that A.L.’s brother was not competent to testify. The determination that A.L.’s brother was not competent to testify meant that his out-of-court statement was not admissible under Minn. R. Evid. 801(d)(1)(B) because that rule applies only when “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.” Minn. R. Evid. 801(d)(1)(B). Following its determination that A.L.’s brother was not competent to testify, the court indicated that the brother’s out-of-court statement was probably admissible under Minn. Stat. § 595.02, subds. 3-4 (2002).
Section 595.02, subdivision 3, states:
An out-of-court statement made by a child under the age of ten years or a person who is mentally impaired as defined in section 609.341, subdivision 6, alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child . . . by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:
(a) the court . . . finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and
(b) the child or person mentally impaired as defined in section 609.341, subdivision 6, either:
(i) testifies at the proceedings; or
(ii) is unavailable as a witness and there is corroborative evidence of the act; and
(c) the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to meet the statement.
For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.
The plain language of section 595.02, subdivision 3, that we have emphasized above indicates that the statute applies only to a child’s out-of-court statement about a sexual act performed with or on the child who made the out-of-court statement. Therefore, because A.L.’s brother’s out-of-court statement does not allege, explain, deny, or describe an act of sexual contact or penetration performed with or on the brother, the statute does not apply to the brother’s out-of-court statement. Also, A.L.’s brother was 11 years old when the abuse allegedly occurred, and section 595.02, subdivision 3, applies only to statements by a child under ten years old or a person who is mentally impaired as defined in section 609.341, subdivision 6. Under Minn. Stat. § 609.341, subd. 6 (2002), ‘“[m]entally impaired’ means that a person, as a result of inadequately developed or impaired intelligence . . . lacks the judgment to give a reasoned consent to sexual contact or to sexual penetration.” The district court found that A.L.’s brother did “seem to be developmentally delayed,” but the court did not find that he met the statutory definition of “mentally impaired.” Without such a finding, there is not a basis for concluding that the statute applies to an out-of-court statement of an 11-year-old child.
Finally, section 595.02, subdivision 4, does not apply to the brother’s out-of-court statement because that statute authorizes procedures for taking certain testimony of a child less than 12 years of age pursuant to a court order, and the record does not indicate that the district court issued an order or that the authorized procedures were followed.
For purposes of plain-error analysis, “‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). Because the plain language of Minn. Stat. § 595.02, subds. 3-4, indicates that neither of those statutes applies to A.L.’s brother’s out-of-court statement, the district court’s determination that the statement was admissible under Minn. Stat. § 595.02, subds. 3-4, is plain error.
“The third prong [of the plain-error test], requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. “The defendant bears the burden of persuasion on this third prong.” Id.
In this instance, the videotape of A.L.’s out-of-court statement was played to the jury, and the jury heard appellant’s recorded statement denying A.L.’s allegations. A.L. also testified at trial, but she could not remember what she told Adamson or if what she told Adamson was true, and she could not testify about what happened to her. Consequently, the jury needed to make a credibility determination with respect to A.L.’s out-of-court statement alleging abuse and appellant’s out-of-court statement denying the allegations. A.L.’s brother’s statement was used primarily to corroborate A.L.’s out-of-court statement and made it more likely that in making its credibility determination, the jury would conclude that A.L.’s out-of-court statement implicating appellant was true. Therefore, we conclude that appellant has met his burden of demonstrating that the error of admitting A.L.’s brother’s out-of-court statement was prejudicial and affected the outcome of the case.
However, this does not end the inquiry because if the three prongs of the plain-error standard are met, this court “may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Strommen, 648 N.W.2d at 686 (quotation omitted). Here, the out-of-court statement of a witness who was found not competent to testify at trial was used to corroborate the out-of-court statement of a witness who testified at trial but whose trial testimony raised doubts about her out-of-court statement. Minn. Stat. § 595.02, subds. 3-4, permit the admission of out-of-court statements of child witnesses under certain conditions. But the district court did not follow the statutory procedures designed to ensure that the conditions for admitting A.L.’s brother’s out-of-court statement were met. Under these circumstances, we conclude that the error of admitting A.L.’s brother’s out-of-court statement seriously affects the fairness and integrity of appellant’s trial. Consequently, we reverse appellant’s conviction and remand for a new trial.
Because we conclude that the admission of A.L.’s brother’s out-of-court statement, by itself, warrants the reversal of appellant’s conviction, it is not necessary to address the additional issues that appellant has raised on appeal.
Reversed and remanded.
 CornerHouse is an organization whose employees conduct videotaped interviews of alleged victims of abuse and provide the tape to local police. State v. Johnson, 659 N.W.2d 819, 820 n.1 (Minn. App. 2003), review denied (Minn. July 15, 2003).
 Appellant states in his recitation of facts that Thompson used the same CornerHouse protocol that Adamson used to interview A.L. Thompson testified that he did not use the protocol, though he avoided asking leading, argumentative, and compound questions.
 The comment states that “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 [the] rule.” Minn. R. Evid. 801(d)(1) 1989 comm. cmt.
 For purposes of this analysis, we assume, without deciding, that A.L.’s out-of-court statement was admissible.