This opinion will be unpublished and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
                                     A14-1545

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Thomas James Mitchell,
                                      Appellant.

                               Filed September 28, 2015
                                       Affirmed
                                     Larkin, Judge

                              Stearns County District Court
                                File No. 73-CR-13-1419


Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



         Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Chutich,

Judge.
                          UNPUBLISHED OPINION

LARKIN, Judge

       A jury found appellant guilty of terroristic threats, possession of a firearm by an

ineligible person, and two controlled-substance crimes.            Appellant challenges his

convictions, arguing that: (1) a search warrant for his home was not supported by

probable cause and the search exceeded the scope of the warrant, (2) the district court

violated his right to present a complete defense by precluding him from arguing that the

state misled him to believe that his right to possess a firearm had been restored, (3) the

district court abused its discretion by admitting an out-of-court statement from the victim

as a prior consistent statement, and (4) the district court plainly erred by failing to instruct

the jury that it must unanimously decide which of the appellant’s acts constituted a

terroristic threat. We affirm.

                                           FACTS

       In February 2013, St. Cloud police officers responded to a dispute at the home of

appellant Thomas James Mitchell, which involved T.Y. According to T.Y., she and

Mitchell had been arguing when Mitchell took a crossbow off the wall, attempted to load

it, and pointed it at her. T.Y. stated that Mitchell dragged her by her hair, pushed her to

the ground, and held her head down in a manner that prevented her from breathing.

When T.Y. attempted to fight back, Mitchell threatened to break her neck and to kill her.

The officers arrested Mitchell for domestic assault and transported him to jail.

       That evening, the police obtained a warrant to search Mitchell’s home for:

            Items showing residency and/or occupancy.


                                               2
           Any and all crossbows.
           Documents including but not limited to receipts, operator
            manuals, and/or warranty information regarding the purchase
            and/or possession of crossbow and/or crossbow accessories.
           Any and all crossbow arrows/ammunition.

       During the ensuing search, officers seized the crossbow. They also observed

drugs and drug paraphernalia. Based on that observation, the police obtained a second

search warrant to search the home for drugs and drug paraphernalia. Officers executed

the second search warrant and seized a pellet gun, suspected methamphetamine and

marijuana, a drug pipe, and miscellaneous firearm ammunition. During a subsequent

police interview, T.Y. described a “hidden room” in Mitchell’s residence.         Officers

obtained and executed a third search warrant based on that information. They seized

equipment related to a controlled-substance grow operation.

       The state charged Mitchell with domestic assault by strangulation, terroristic

threats, second-degree possession of a controlled substance, fifth-degree possession of a

controlled substance, and possession of a firearm (the pellet gun) by an ineligible person.

The firearm-possession charge was predicated on Mitchell’s 1992 conviction of a first-

degree controlled-substance crime.

       Mitchell moved to suppress all of the evidence obtained during the searches of his

home, arguing that the search warrants were not supported by probable cause and that the

officers’ searches exceeded the scope of the warrants.         The district court denied

Mitchell’s motion.

       On the morning of trial, the district court addressed a defense motion to dismiss

the firearm-possession charge on the basis that the probation order from his disqualifying

                                            3
offense misled him to believe that his right to possess firearms had been restored. The

district court denied the motion and did not allow Mitchell to present a defense based on

the probation order, but the district court received a copy of the probation order as a court

exhibit.

       At trial, the state offered an audio recording and transcript of a police interview of

T.Y., which includes the following exchange:

              Q. Okay alright um does [Mitchell] have access to a gun?
              A. Yes.
              Q. Is that in the residence?
              A. Um there used to be one there[.] I’m not sure if there still
              is now. He . . . owns three houses.
              ....
              Q. Okay do you know what kind of gun it is?
              A. No I don’t. . . . I know he has a handgun and a rifle . . . .
              The handgun I used to use but I think I wanna say . . . it looks
              like a—well there’s like three different sizes. I don’t know
              guns really well but like . . . an older gun.

       Mitchell objected to T.Y.’s interview as hearsay. The district court ruled that the

interview was admissible as a prior consistent statement, and the audio recording was

played for the jurors. Mitchell later moved for a mistrial based on the admission of

T.Y.’s statement, arguing that the statement was inadmissible. The district court denied

the motion. Mitchell turned down the district court’s offer to strike the contested portion

of T.Y.’s statement and to provide a curative instruction. But at Mitchell’s request, the

district court added a final jury instruction that Mitchell was “not being tried for and may

not be convicted of any behavior other than the charged offenses” and that the jury was

“not to convict [him] on the basis of conduct on another occasion.”




                                             4
       The jury found Mitchell not guilty of domestic assault by strangulation but guilty

of terroristic threats, second-degree possession of a controlled substance, fifth-degree

possession of a controlled substance, and possession of a firearm by an ineligible person.

Mitchell moved for a judgment of acquittal on the firearm-possession offense, arguing

that the district court violated his right to due process by preventing him from introducing

evidence regarding his disqualifying conviction. Mitchell also moved for a new trial,

reiterating his challenges to the searches of his house.        The district court denied

Mitchell’s motions and sentenced him to serve 67 months in prison.

       Mitchell appeals.

                                     DECISION

                                             I.

       Mitchell challenges the validity and execution of the first search warrant, adding

that because the first search was invalid, the district court should have suppressed the

evidence obtained during the second and third searches. See State v. Olson, 

 (Minn. App. 2001) (“[E]vidence discovered by exploiting previous illegal

[police] conduct is inadmissible.”), review denied (Minn. Dec. 11, 2001).

       The United States and Minnesota Constitutions provide that no warrant shall issue

without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Generally, a search is lawful only if it is executed pursuant to a valid search warrant

issued by a neutral and detached magistrate after a finding of probable cause. See 

 (2012); State v. Harris, 

 (Minn. 1999).




                                             5
       “When determining whether a search warrant is supported by probable cause, we

do not engage in a de novo review.” State v. McGrath, 

 (Minn.

App. 2005), review denied (Minn. Feb. 22, 2006). Instead, we “afford the district court’s

determination great deference.” State v. Rochefort, 

 (Minn. 2001).

This court limits its “review to ensuring that the issuing judge had a substantial basis for

concluding that probable cause existed.” McGrath, 

. In doing so, we

examine the totality of the circumstances. State v. Holiday, 

 (Minn.

App. 2008).

              The task of the issuing [judge] is simply to make a practical,
              common-sense decision whether, given all the circumstances
              set forth in the affidavit before him, including the “veracity”
              and “basis of knowledge” of persons supplying hearsay
              information, there is a fair probability that contraband or
              evidence of a crime will be found in a particular place.

State v. Wiley, 

 (Minn. 1985) (quoting Illinois v. Gates, 

, 

 (1983)).

       “[C]ourts must be careful not to review each component of the affidavit in

isolation.” 

 “[A] collection of pieces of information that would not be substantial

alone can combine to create sufficient probable cause.” State v. Jones, 

(Minn. 2004). “Furthermore, the resolution of doubtful or marginal cases should be

largely determined by the preference to be accorded warrants.” Wiley, 

 (quotation omitted).

       The first search warrant authorized the police to search Mitchell’s house for

“[i]tems showing residency and/or occupancy” and “[d]ocuments, including but not



                                             6
limited to receipts, operator manuals, and/or warranty information regarding the purchase

and/or possession of crossbow and/or crossbow accessories.” Mitchell argues that the

supporting affidavit “does not state any reason or rationale” in support of its request to

search for those items and that there is no nexus between the crimes that were being

investigated and the documents. Essentially, Mitchell argues that the documents at issue

were not contraband or evidence of crime and there was not probable cause to search for

those items.1 We disagree.

      One element of domestic assault by strangulation is that the defendant and the

victim were family or household members. 

, subd. 2 (2012).

“Family or household members” include “persons who are presently residing together or

who have resided together in the past.” Minn. Stat. § 518B.01, subd. 2(b)(4) (2012).

Items showing Mitchell’s residency or occupancy could show that Mitchell and T.Y.

were residing or had resided together and therefore constitute evidence of a crime.

Moreover, documents establishing Mitchell’s ownership of the crossbow and ammunition

could corroborate T.Y.’s statements that Mitchell used the crossbow during the domestic-

assault and terroristic-threats offenses. The crossbow documents therefore could also be

evidence of a crime. The issuing judge did not err by concluding that there was probable



1
 Mitchell addresses the “nexus” between the crimes being investigated and the evidence
sought. However, “nexus” in the search-warrant context typically refers to the
connection between the evidence sought and the place to be searched. See, e.g., State v.
Yarbrough, 

 (Minn. 2014) (“A sufficient ‘nexus’ must be
established between the evidence sought and the place to be searched.”). Mitchell does
not argue that the evidence listed in the search warrant was unlikely to be found in his
home.

                                            7
cause to search Mitchell’s home for the residency or occupancy items and crossbow

documents.

       Mitchell also contends that the officers’ first search exceeded the scope of the

warrant. Mitchell argues that the officers unreasonably “expand[ed] the scope of the

search for documents showing ownership of the crossbow or occupancy to [a] child’s

bedroom” and that “it was not reasonable to believe these items might also be found in a

child’s room.” Mitchell further argues that “[b]ecause the expansion of the search to the

child’s room was not reasonable, the controlled substances and money found in the

child’s room, which formed the basis for issuance of the second search warrant, should

have [been] suppressed.”

       “A search pursuant to a warrant may not exceed the scope of that warrant.” State

v. Soua Thao Yang, 

 (Minn. App. 1984). “The test for determining

whether a search has exceeded the scope of the warrant is one of reasonableness.” 

 To

determine whether the conduct of an officer executing a search warrant was reasonable,

appellate courts consider the totality of the circumstances. State v. Thisius, 

 (Minn. 1978). “[A] search is limited in scope to those areas where one

would reasonably expect to find the items identified in the search warrant.” State v.

Mollberg, 

, 

 (1976).             And “any container

situated within a residence that is the subject of a validly-issued warrant may be searched

if it is reasonable to believe that the container could conceal items of the kind portrayed

in the warrant.” State v. Wills, 

 (Minn. App. 1994), review denied

(Minn. Feb. 14, 1995). We review de novo the issue of whether a search exceeded the


                                            8
scope of the warrant. See 

 (reviewing de novo the issue of whether a search

exceeded the scope of a warrant).

       As determined above, the officers had a valid warrant to search for documents

regarding occupancy, residency, or ownership of the crossbow and ammunition. They

therefore were authorized to search all areas inside Mitchell’s house where one would

reasonably expect to find those documents, including any containers that could conceal

the documents. See Mollberg, 

, 

; Wills, 

. Mitchell takes issue with the officers’ search of a cabinet in a child’s bedroom.

Although it may be a close case, an investigating police officer charged by warrant to

search anywhere specified documents might reasonably be found would search for them

in a home’s cabinets. And because organizational practices vary in wide extremes from

home to home, the officer has no constitutional obligation to exclude a cabinet simply

because it is located in a child’s room. The officers in this case therefore did not exceed

the scope of the first search warrant by searching in the child’s bedroom.

       In sum, the issuing judge had a substantial basis to conclude that there was

probable cause for the first search warrant, and the officers did not exceed the scope of

the warrant during its execution. Because the first search was constitutional, we do not

consider Mitchell’s argument that items seized during the second and third searches must

be suppressed as the tainted result of the first search.

                                              II.

       Mitchell contends that the district court denied him a meaningful opportunity to

present a complete defense to the charge of possession of a firearm by an ineligible


                                               9
person.    Under the Due Process Clauses of the United States and Minnesota

Constitutions, a criminal defendant is “afforded a meaningful opportunity to present a

complete defense.” State v. Quick, 

 (Minn. 2003) (quotations

omitted). But “a defendant has no right to introduce evidence that either is irrelevant, or

whose prejudicial effect outweighs its probative value.” State v. Crims, 

 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). Evidence is relevant when

it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Minn. R. Evid. 401. Irrelevant evidence is inadmissible. Minn. R. Evid. 402.

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the

burden of establishing that the [district] court abused its discretion and that appellant was

thereby prejudiced.”    State v. Amos, 

 (Minn. 2003) (citation

omitted). Even when it is claimed that the exclusion of evidence deprived a criminal

defendant of his or her constitutional right to present a complete defense, we review the

ruling under the abuse-of-discretion standard. State v. Penkaty, 

(Minn. 2006).

       The firearm-possession charge was predicated on Mitchell’s 1992 conviction of a

first-degree controlled-substance crime. The probation order from that case states: “Any

person convicted of a felony loses his civil rights, including the right to vote in this state

and the right to hold public office until the stay of sentence expires.” Mitchell offered the

probation order as evidence that the state misled him to believe he could possess a


                                             10
firearm. Mitchell argues that the probation order was relevant because it would allow the

jury to “evaluate the reasonableness of [his] reliance on the order.”

       “Due process prohibits state representatives from misleading individuals as to their

legal obligations.” Whitten v. State, 

 (Minn. App. 2005). “A person

has the right to rely on the promises of a government representative and may follow the

advice or instructions of the representative, even if the advice is a misstatement of the

law.” 

. Accordingly, “[t]he state cannot indicate that a person has the right to

possess firearms when all his civil rights are reinstated, tell him all his civil rights are

reinstated, and then tell him that he should have known he could not possess a firearm.”

       Mitchell relies solely on the probation order from his 1992 conviction to argue that

the state misled him. But the order does not indicate that Mitchell’s rights had been

restored or that Mitchell could possess firearms; it merely states that his civil rights were

lost “until the stay of sentence expires.” In Whitten, this court reversed a defendant’s

conviction of unlawful possession of a firearm because the district court had given him a

discharge order stating that his civil rights were restored and did not check a box

indicating that the defendant could not possess a firearm for another ten years. 

 at 565-

66. Unlike the discharge order in Whitten, the probation order here does not indicate that

Mitchell’s civil rights had been restored or that he could lawfully possess a firearm.

Because the probation order does not tend to establish that the state misled Mitchell

regarding his ability to lawfully possess firearms, it was not relevant to his defense theory

and the district court did not err by excluding it from evidence. See Minn. R. Evid. 401.


                                             11
Nor did the district court violate Mitchell’s constitutional right to present a complete

defense.

                                           III.

       Mitchell contends that the district court erred by admitting T.Y.’s statement to

police that he had access to a gun, specifically, “a handgun and a rifle.” Mitchell argues

that the statement was inadmissible hearsay. We review the district court’s evidentiary

ruling for an abuse of discretion. See Amos, 

.

       “‘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). Hearsay is generally inadmissible. Minn. R. Evid. 802. A statement is

not hearsay if (1) “the declarant testifies at the trial . . . and is subject to cross-

examination concerning the statement” and (2) “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), (d)(1)(B). The district court ruled

that T.Y.’s statement was admissible as a prior consistent statement.

       Before admitting evidence of a prior consistent statement, the district court must

determine whether the prior statement is in fact consistent with trial testimony. State v.

Bakken, 

 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).

“[W]hen 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 this rule.” Minn. R. Evid. 801

1989 comm. cmt.


                                            12
       Mitchell argues that T.Y.’s out-of-court statement was not consistent with her trial

testimony because T.Y. never testified that Mitchell owned or had access to firearms.

The state argues that Mitchell failed to properly object to T.Y.’s statement and that this

court therefore should review for plain error. For the purpose of our analysis, we assume

that Mitchell properly objected to the statement and that the statement was inadmissible

hearsay. The evidentiary ruling therefore warrants reversal only if Mitchell can establish

prejudice. See Bakken, 

 (“[E]ven if a trial court errs in an evidentiary

ruling, we will not reverse unless the error substantially influenced the jury to convict.”).

       Mitchell contends that there is a reasonable probability that T.Y.’s statement

regarding his possession of guns significantly affected the verdict. Mitchell argues that

“a reasonable jury may have relied upon [T.Y.’s] statement that Mitchell has multiple

firearms to find him guilty of ineligible possession of a firearm.” But the firearm-

possession charge was based on the pellet gun that the police found in Mitchell’s home

during the second search, and not on the handgun or rifle that T.Y. referred to in her

statement.   Accordingly, the prosecutor did not refer to T.Y.’s statement regarding

Mitchell’s guns, a handgun, or a rifle in her closing argument.           Mitchell’s defense

attorney, on the other hand, mentioned those subjects, telling the jury, “[Mitchell] is not

on trial for possession of any handgun or any rifle. He’s on trial for possession of that

BB gun.” And, as Mitchell points out, “[t]here was no other evidence to corroborate

[T.Y.’s statement].” Moreover, the district court instructed the jury, at Mitchell’s request,

that it was not to find Mitchell guilty based on any actions other than those described in

the complaint. We assume that the jurors followed that instruction. See State v. Taylor,


                                             13


 (Minn. 2002) (stating that appellate courts “presume the jury

followed the [district] court’s instructions”).

       In sum, Mitchell fails to demonstrate that admission of T.Y.’s statement was

prejudicial. The district court’s ruling therefore does not provide a basis to reverse.

                                              IV.

       Mitchell contends that the district court plainly erred by failing to provide a

“specific unanimity instruction” regarding his terroristic-threats charge. Mitchell did not

object to the alleged error at trial.

       “A defendant’s failure to propose specific jury instructions or to object to

instructions before they are given to the jury generally constitutes a waiver of the right to

appeal” any error in the instructions. State v. Cross, 

 (Minn. 1998).

Nonetheless, “a failure to object will not cause an appeal to fail if the instructions contain

plain error affecting substantial rights or an error of fundamental law.” Id.; see also State

v. Crowsbreast, 

 (Minn. 2001). We therefore review for plain error.

See Minn. R. Crim. P. 31.02.

       Under the plain-error test, this court will not grant relief unless (1) there is an

error, (2) the error is plain, and (3) the error affected the defendant’s substantial rights.

State v. Griller, 

 (Minn. 1998). An error is “plain” if it is clear or

obvious under current law, State v. Strommen, 

 (Minn. 2002)

(quotation omitted), and an error is clear or obvious if it “contravenes case law, a rule, or

a standard of conduct,” State v. Ramey, 

 (Minn. 2006). If the first

three requirements of the plain-error test are satisfied, this court then considers whether


                                              14
the error “seriously affects the fairness, integrity or public reputation of judicial

proceedings.”   State v. Washington, 

 (Minn. 2005) (quotation

omitted).

      Minnesota requires unanimous jury verdicts in all criminal cases. Minn. R. Crim.

P. 26.01, subd. 1(5); State v. Hart, 

 (Minn. App. 1991), review

denied (Minn. Jan. 16, 1992). Jurors must unanimously agree regarding which alleged

acts the defendant committed if each act itself constitutes an element of the charged

crime. State v. Rucker, 

 (Minn. App. 2008), review denied (Minn.

Sept. 23, 2008); State v. Stempf, 

 (Minn. App. 2001). “Where jury

instructions allow for possible significant disagreement among jurors as to what acts the

defendant committed, the instructions violate the defendant’s right to a unanimous

verdict.” Stempf, 

.

      “But the jury does not have to unanimously agree on the facts underlying an

element of a crime in all cases,” State v. Pendleton, 

 (Minn. 2007),

and “unanimity is not required with respect to the alternative means or ways in which the

crime can be committed,” State v. Begbie, 

 (Minn. App. 1987)

(quotation omitted), review denied (Minn. Jan. 20, 1988). Thus, “the jury need not

always decide unanimously which of several possible means the defendant used to

commit the offense in order to conclude that an element has been proved beyond a

reasonable doubt.” State v. Ihle, 

 (Minn. 2002).

      Minnesota courts have “recognized the distinction between the basic elements of

the crime and the facts underlying those basic elements.” State v. Hager, 

668, 674 (Minn. App. 2007) (citing Pendleton, 

). “The Pendleton

analysis limits the unanimous verdict requirement to situations where the offenses of the

accused are inherently separate and juror confusion or disagreement would deny the

accused due process.” 

 “The cases across the country . . . recognize and note that it is

sufficient that all jurors unanimously agree on their ultimate conclusion that the

defendant was guilty of the crime charged, though they may not agree on the manner in

which the defendant participated in the crime.” Begbie, 

 (quotation

omitted).

       In her closing argument, the prosecutor stated that Mitchell made “a series of

threats that all fit” the elements of the state’s single terroristic-threats charge. The

prosecutor highlighted three allegations: (1) that Mitchell loaded the crossbow and

pointed it at T.Y., (2) that Mitchell stated that he would break T.Y.’s neck if she tried to

fight back, and (3) that Mitchell stated to T.Y. while he made the 911 call: “When I get

out, do you know what’s going to happen to you and your family?” Mitchell argues that

the district court erred by not giving a specific unanimity instruction for his terroristic-

threats charge because “the state presented three different factual scenarios as possible

bases for the conviction.”

       Although Mitchell argues that the district court erred, he does not explain how that

error was clear or obvious under current law. In fact, the only case Mitchell cites in

support of his argument is Stempf, and that case is readily distinguishable.2


2
 Mitchell also relies on State v. Wenthe, in which this court concluded that the district
court violated the defendant’s right to a unanimous verdict by failing to give a specific-

                                             16
       In Stempf, “the state charged [the defendant] with only one count of [controlled-

substance] possession but alleged two distinct acts to support a conviction: (1) that he

possessed methamphetamine . . . at . . . his workplace; and (2) that he possessed

methamphetamine found in the truck in which he was riding when he arrived at work.”

. The district court denied the defendant’s request for a specific-

unanimity instruction requiring the jury to agree regarding which of the two acts he

committed. 

. In closing argument, “the state told the jury it could convict if

some jurors believed [the defendant] possessed the methamphetamine found [at the

workplace] while others believed he possessed the methamphetamine found in the truck.”

. On appeal, this court concluded that the district court violated the defendant’s

right to a unanimous verdict by refusing to give a specific-unanimity instruction. 

 We

noted that “[t]he two acts of possession did not constitute a single act,” the defendant

“presented different defenses for each alleged act of possession,” and “[t]he acts occurred

in different places and at different times.” 

       The reasons for finding error in Stempf do not apply here. Mitchell’s threats

amount to a single act: they occurred in the same place at the same time, in succession,

during an escalating fight between Mitchell and T.Y., which began in an upstairs




unanimity instruction. 

 (Minn. App. 2014). However, the
supreme court recently reversed Wenthe, concluding that it was not reasonably likely that
the lack of a specific-unanimity instruction affected the defendant’s substantial rights.
State v. Wenthe, 

 (Minn. 2015). In doing so, the supreme court did
not decide whether the district court erred by omitting a specific-unanimity instruction.

.

                                             17
bedroom, moved downstairs, and ended with T.Y. outside the front door and Mitchell

yelling from inside.

       Contrary to Mitchell’s argument, Stempf does not support the conclusion that a

specific-unanimity instruction was required in this case. This appears to be a case in

which the jury merely could have disagreed regarding the alternative ways in which the

crime of terroristic threats was committed. See Begbie, 

 (“It is

sufficient that all jurors unanimously agreed on their ultimate conclusion that [the

defendant] was guilty of [terroristic threats], even though they may not have agreed upon

exactly which victim [he] had intended to terrorize.”).          Thus, Mitchell has not

demonstrated that the district court plainly erred by failing to sua sponte provide the jury

with a specific-unanimity instruction. He therefore is not entitled to relief under the

plain-error standard.

       Affirmed.




                                            18