This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-389

State of Minnesota,

Respondent,

vs.

Stephen Ray Pacholl,

Appellant.

Filed November 5, 1996

Affirmed

Kalitowski, Judge

Nobles County District Court

File No. K995135

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Kenneth Kohler, Nobles County Attorney, P.O. Box 607, Worthington, MN 56187 (for Respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

This appeal is from a judgment of conviction for first-degree criminal sexual conduct. Minn. Stat. § 609.342, subd. 1(a), (g), (h)(iii) (1994). Appellant Stephen Pacholl argues that the trial court abused its discretion in admitting the ten-year-old victim's out-of-court statements. We affirm.

D E C I S I O N

Rulings on evidentiary matters generally rest within the sound discretion of the trial court. State v. Christopherson, 500 N.W.2d 794, 797 (Minn. App. 1993). An out-of-court statement made by a witness testifying at trial and subject to cross-examination is not hearsay if it 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). The rule as amended in 1990 eliminated the requirement that the prior consistent statement "rebut a charge of recent fabrication or improper motive"; instead it requires only that the statement be "helpful" in evaluating the declarant's credibility as a witness.

Pacholl argues that prior consistent statements must have some indicia of reliability, and have clear relevance to credibility, to be "helpful" to the fact-finder under rule 801(d)(1)(B). We need not address this construction of the rule. A.P.'s statement to Laura Moorman, her initial report of the sexual abuse, was plainly relevant to A.P.'s credibility. As to the remaining statements, Pacholl posed no objection to them as being cumulative. Moreover, defense counsel attempted to use to his advantage the number of statements that were elicited from A.P. He questioned A.P. about the number of times she had talked about the allegations and questioned other witnesses about repetition causing suggestibility in a child. Thus, Pacholl has waived any claim that the admission of prior consistent statements was repetitious or cumulative. See generally State v. Helenbolt, 334 N.W.2d 400, 407 (Minn. 1983) (where defendant fails to object, and re-elicits the evidence, he may not challenge its admission on appeal).

Even if we could find error in the admission of A.P.'s out-of-court statements, we conclude it would be harmless. There is no reasonable possibility that a reasonable jury, having heard A.P.'s testimony and Pacholl's confession, would have acquitted Pacholl if the out-of-court statements were excluded from evidence. See generally State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (standard of review is whether there is a "reasonable possibility that a reasonable jury might have reached a different result if the error or errors" had not been committed).

Affirmed.