This opinion is nonprecedential except as provided by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
                                    A22-1573

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                Daryl Shannon Williams,
                                       Appellant.

                                Filed March 11, 2024
                               Reversed and remanded
                                    Larson, Judge

                            Hennepin County District Court
                              File No. 27-CR-21-22599

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

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

       Considered and decided by Johnson, Presiding Judge; Larson, Judge; and John

Smith, Judge. ∗




∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                            NONPRECEDENTIAL OPINION

LARSON, Judge

       Respondent State of Minnesota charged and tried appellant Daryl Shannon Williams

for attempted second-degree intentional murder based on a shooting that occurred at a gas

station. A jury found Williams guilty, and the district court sentenced Williams to 153-

months imprisonment. Williams appeals his conviction, arguing that numerous evidentiary

errors occurred during his trial, each of which entitles him to a new trial. Because we agree

that several errors occurred during Williams’s trial, which cumulatively deprived him of a

fair trial, we reverse the conviction and remand to the district court for a new trial.

                                           FACTS

       On November 20, 2021, police were dispatched to a gas station in Brooklyn Park in

response to a 911 call reporting a shooting. Responding officers found the victim, B.B.,

sitting in his vehicle with several gunshot wounds. B.B. was slumped over in his seat, and

one officer testified that B.B. appeared to be in shock. The video from one of the officer’s

body-worn cameras shows B.B. suffering from the physical trauma of several gunshot

wounds. In the video, B.B. repeatedly, unprompted, and in a tone approaching panic, asked

the officers to “help [him].” When asked where he was shot, B.B. shouted “everywhere!”

When the officers started rendering medical aid, B.B. stated, “I’m losing it” and began

losing consciousness. One officer then asked B.B. who shot him, to which B.B. responded

“Joker” or “Joker shot me” (hereinafter, “statement made minutes after the shooting”).

       Paramedics took B.B. to a hospital where he was treated for life-threatening injuries

resulting from 11 gunshot wounds to his torso and limbs. B.B. suffered damage to his right


                                              2
kidney, left lung, liver, bladder, small intestine, the spermatic cord, and blood vessels

bringing blood to his right testicle. B.B. underwent several surgeries. While in the hospital,

B.B. was sedated and on pain medication. During that time, detectives spoke with B.B.

about the shooting. According to Williams’s attorney, B.B. told detectives “Mr. Joker shot

me. But I’m not certain that it was Joker,” and “I’m not 100 percent sure. Actually, I don’t

even want to prosecute” (hereinafter, “statements made in the hospital”).

       After his discharge from the hospital, about a week later, a detective interviewed

B.B. again. According to the county attorney, B.B. told the detective that he did not recall

speaking with the detective a week earlier and that he had been “out of it.” The county

attorney further stated that B.B. also told the detective that “Joker” shot him, and provided

the detective with a photograph of the person he knew as Joker (hereinafter, “statement

identifying the shooter”). At trial, the state elicited testimony from a detective that B.B.

provided the detective with a picture of the person B.B. believed to be the shooter. The

detective testified that he later showed the photograph to Williams, who identified himself

as the same person that B.B. identified as the shooter.

       Following an investigation, the state charged Williams with attempted second-

degree intentional murder, pursuant to 

, subd. 1(1) (2020), and the case

proceeded to a jury trial. At trial, Williams attempted to present the defense that another

person shot B.B. based on B.B.’s consistent identification of the shooter as “Joker,” a

nickname Williams claims he has never used. The district court, however, sustained the

state’s hearsay objections to Williams’s attempts to enter evidence that B.B. identified

“Joker” as the shooter. Regarding the statement made minutes after the shooting, the


                                              3
district court found the statement was not an excited utterance because Williams had failed

to show that B.B. was sufficiently under the aura of excitement when he made the

statement. And for B.B.’s statements made in the hospital, the district court determined

the statements lacked sufficient guarantees of trustworthiness to fall within the residual

exception to the hearsay rule.

       The state called eight witnesses, including several responding officers and

investigating detectives.    The state also presented security-camera videos (1) from

Williams’s apartment building, depicting an individual resembling Williams on the day of

the shooting; (2) from the gas station, during daylight, and hours before the shooting,

showing an individual wearing similar clothes and driving a similar vehicle as Williams;

and (3) from the gas station, in the evening, depicting darkened images of the shooting

itself. The state elicited testimony from detectives that they believed the person who

appeared in the security-camera video from the apartment building was the same person

who appeared in the security-camera video from the gas station several hours before the

shooting, and that the person in both videos was Williams. One of the detectives testified

that he believed Williams was the shooter. The state also called B.B.’s surgeon, who

testified about the extent and nature of B.B.’s injuries resulting from the shooting. B.B.

did not testify at trial because the state could not locate him to personally serve a subpoena.

       At the conclusion of trial, the jury found Williams guilty. The district court

convicted Williams and sentenced him to 153-months imprisonment. Williams appeals.




                                              4
                                        DECISION

       Williams appeals his conviction, arguing numerous evidentiary errors occurred

during his trial. Some alleged errors were objected to while others passed without

objection.    Williams asserts that each error individually, or considered collectively,

deprived him of a fair trial, requiring reversal of his conviction and remand to the district

court for a new trial.

       We review objected-to evidentiary rulings for an abuse of discretion. State v.

Penkaty, 

 (Minn. 2006). “A district court abuses its discretion when

its decision is based on an erroneous view of the law or is against logic and the facts in the

record.”     State v. Tapper, 

, 437 (Minn. 2023) (quoting State v.

Vangrevenhof, 

, 736 (Minn. 2020)). If a district court abuses its discretion

when excluding evidence offered by the defendant, “we reverse only if the exclusion of

evidence was not harmless beyond a reasonable doubt.” State v. Zumberge, 

 (Minn. 2017). “An error is harmless beyond a reasonable doubt if the jury’s

verdict was surely unattributable to the error.” State v. McInnis, 

, 886

(Minn. 2021).

       When a party fails to object to the admission of evidence, that failure typically

“constitutes a waiver of the right to appeal on that basis.” State v. Tscheu, 

 (Minn. 2008). However, we may consider an unobjected-to error under the plain-

error standard of review. 

 Under this standard, we evaluate whether “there was (1) error,

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

An error is plain when it “contravenes case law, a rule, or a standard of conduct.” State v.


                                              5
Zinski, 

 (Minn. 2019) (quoting State v. Hayes, 

(Minn. 2013)). An error affects a defendant’s substantial rights when “there is a reasonable

likelihood that the error had a significant effect on the jury’s verdict.” State v. Sontoya,

 (Minn. 2010). In considering whether the error had a significant

effect on the verdict, we consider “the strength of the State’s case, the pervasiveness of the

error, and whether the defendant had an opportunity to respond to the testimony.” 

. If a defendant demonstrates that all three requirements are satisfied, “an appellate

court may correct the error only when it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Pulczinski v. State, 

, 356 (Minn.

2022).

         With these standards in mind, we review Williams’s arguments. We address

Williams’s evidentiary arguments in part I. In part II, we address whether any evidentiary

errors warrant a new trial.

                                              I.

         We begin our analysis by assessing whether any evidentiary errors occurred during

Williams’s trial. Williams argues: (1) the district court misapplied the rules of evidence

with regard to B.B.’s out-of-court statements; (2) the lead detective improperly testified

that he believed Williams was the shooter; (3) the detectives offered improper opinion

testimony regarding the security-camera videos; and (4) the surgeon improperly testified

about B.B.’s privileged medical information. We address each category of evidence below.




                                              6
       A.     Out-of-Court Statements

       We begin with Williams’s challenges to the district court’s decisions to admit or

exclude certain out-of-court statements B.B. made to law enforcement. Generally, out-of-

court statements “made by a nonparty and offered to prove the truth of the matter asserted

[are] inadmissible hearsay.” State v. Chauvin, 

, 31 (Minn. App. 2023) (citing

Minn. R. Evid. 801(c), 802), rev. denied (Minn. July 18, 2023). But this general prohibition

is subject to many exceptions.

       Here, Williams argues that the district court: (1) abused its discretion when it

determined B.B.’s statement made minutes after the shooting was not admissible under the

excited-utterance hearsay exception, Minn. R. Evid. 803(2); (2) abused its discretion when

it determined B.B.’s statements made in the hospital were not admissible under the residual

hearsay exception, Minn. R. Evid. 807; and (3) plainly erred when it admitted testimony

that B.B. identified the shooter.

              1.     Statement made minutes after the shooting

       Williams argues that the district court erred when it determined B.B.’s statement

made minutes after the shooting was not an excited utterance. Specifically, Williams

sought to admit evidence that B.B. responded with “Joker” or “Joker shot me,” when the

officer asked who shot him. Because the state objected to Williams offering this evidence,

we review this issue for an abuse of discretion. See Penkaty, 

.

       Under Minn. R. Evid. 803(2), an exception to the general hearsay prohibition exists

for “[a] statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” The rationale for the

                                             7
exception “stems from the belief that the excitement caused by the event eliminates the

possibility of conscious fabrication, and insures the trustworthiness of the statement.” State

v. Daniels, 

 (Minn. 1986) (quoting Minn. R. Evid. 803(2) 1977

advisory comm. cmt.). Three requirements must be met to qualify as an excited utterance:

(1) “there must be a startling event or condition”; (2) “the statement must relate to the

startling event or condition”; and (3) “the declarant must be under a sufficient aura of

excitement caused by the event or condition to insure the trustworthiness of the statement.”

 (quoting Minn. R. Evid. 803(2) 1977 advisory comm. cmt.).

       The district court’s decision that B.B.’s statement made minutes after the shooting

did not qualify as an excited utterance rested on the third requirement. When evaluating

the third requirement, courts must consider “all relevant factors.” 

 Relevant factors

include “the length of time elapsed, the nature of the event, the physical condition of the

declarant, [and] any possible motive to falsify.” 

. A district court may also

consider whether the statement was made in response to a question. Tapper, 993 N.W.2d

at 438.   A statement “is not necessarily rendered inadmissible by the fact that the

declaration was made in response to a question,” but it may be a relevant consideration as

to whether the statement “was spontaneous and excited.” Id. (quoting In re Chuesberg’s

Welfare, 

 (Minn. 1975)). Further, while “a physical manifestation of

stress will often be a key indicator of an aura of excitement,” such a physical manifestation

“is not necessarily required.” 

       Here, the district court determined that, at the time B.B. made the statement, B.B.

was no longer under a sufficient aura of excitement to ensure the statement’s


                                              8
trustworthiness. 1 Specifically, the district court found that, at the time he made the

statement, B.B. “was essentially nonresponsive.” The district court recited the testimony

that B.B. “appeared to be in shock[,] . . . that [B.B.] was slumped, leaned over, that he was

not talking, [and] that he was only responding to direct questions.” The district court, thus,

distinguished B.B.’s statement from other excited-utterance cases on the basis that B.B.

was not “clearly in an excited state.” But the evidence does not support this finding.

       The video from the officer’s body-worn camera, taken just minutes after the

shooting, does not show that B.B. was “essentially nonresponsive” when he made the

statement.   The video shows B.B., who had just been shot 11 times, repeatedly,

unprompted, and in a tone approaching panic, asking the officer to “help [him].” When

asked where he was shot, B.B. shouted “everywhere!” And when the officer started

rendering medical aid, B.B. stated “I’m losing it” and he began losing consciousness. It is

in this context that the officer asked B.B. who shot him, and he replied “Joker” or “Joker

shot me.” Based on our review, the video does not support the district court’s finding that

B.B. was “essentially nonresponsive” when he made the statement.

       Moreover, the other relevant factors favor a determination that B.B.’s statement was

admissible as an excited utterance. See Daniels, 

 (listing the relevant

factors). B.B.’s statement was made mere minutes after the shooting. The nature of the

event—a shooting in a gas station parking lot—would be startling to almost anyone and


1
  Based on its analysis, the district court seemed to require B.B. to have been outwardly
agitated in order to admit the statement as an excited utterance. But in Tapper, the supreme
court noted that a physical manifestation of stress “is not necessarily required” for the
statement to qualify as an excited utterance. 993 N.W.2d at 438.

                                              9
certainly to B.B., who had been shot 11 times. B.B. was in poor physical condition at the

time he made the statement, having suffered damage to his right kidney, left lung, liver,

bladder, small intestine, the spermatic cord, and blood vessels bringing blood to his right

testicle. And given B.B.’s own description that he was losing consciousness at the time he

made the statement, there is little, if any, possibility that B.B. “conscious[ly] fabricat[ed]”

the statement. See id. (quoting Minn. R. Evid. 803(2) 1977 advisory comm. cmt.). For

these reasons, we conclude the district court abused its discretion when it excluded the

statement made minutes after the shooting.

              2.     Statements made in the hospital

       Williams next challenges the district court’s decision that the statements made in

the hospital were not admissible under the residual exception to the hearsay rule. 2

Specifically, Williams sought to admit the following statements B.B. made to detectives:

“Mr. Joker shot me. But I’m not certain that it was Joker” and “I’m not 100 percent sure.

Actually, I don’t even want to prosecute.” Because the state objected to Williams offering

this evidence, we review this issue for an abuse of discretion. See Penkaty, 

.

       The residual exception provides:

              A statement not specifically covered by Rule 803 or 804 but
              having     equivalent       circumstantial    guarantees        of
              trustworthiness, is not excluded by the hearsay rule, if the court
              determines that (A) the statement is offered as evidence of a

2
  Williams also argues that the district court’s concern that allowing the statements into
evidence could lead to Confrontation Clause issues was error. But because we determine
that the testimony was inadmissible hearsay, we need not reach the Confrontation Clause
question.

                                              10
              material fact; (B) the statement is more probative on the point
              for which it is offered than any other evidence which the
              proponent can procure through reasonable efforts; and (C) the
              general purposes of these rules and the interests of justice will
              best be served by admission of the statement into evidence.

Minn. R. Evid. 807. “The decision to admit hearsay statements under Rule 807 has two

steps.” State v. Hallmark, 

 (Minn. 2019). First, the district court

must “look at the totality of the circumstances to determine whether [the] hearsay statement

has ‘circumstantial guarantees of trustworthiness.’” State v. Davis, 

(Minn. 2015) (quoting State v. Robinson, 

 (Minn. 2006)). Second,

the district court must “determine whether the three enumerated requirements of Rule 807

are met.” Hallmark, 

.

       Here, the district court determined the statements made in the hospital were

inadmissible under the residual exception on the basis that the statements did not have

circumstantial guarantees of trustworthiness. Williams argues the statements made in the

hospital did have circumstantial guarantees of trustworthiness because the statements were

recorded, the detectives asked B.B. open-ended questions, there was no evidence of

coercion, and B.B. was in an environment where he would have felt comfortable and

supported.

       Upon reviewing the record, we agree with the district court that the weight of the

evidence indicates that B.B.’s statements were not reliable. B.B. was heavily sedated while

he was in the hospital and heavily medicated when he spoke with the detectives. B.B. had

just undergone multiple major surgeries, and when a detective spoke to B.B. one week

later, B.B. could not recall speaking to the detectives in the hospital. And while the


                                             11
arguments Williams makes may indicate the detectives did not pressure B.B. into giving

favorable responses during the interview, the circumstances provide no guarantees that

B.B. was telling the truth.      None of the factors Williams highlights establish the

trustworthiness of the statements B.B. made while speaking with the detectives in the

hospital.

       For these reasons, we conclude that the district court did not abuse its discretion

when it excluded B.B.’s statements made in the hospital.

              3.     Statement identifying the shooter

       Williams argues the district court erred when it allowed the state to admit evidence

of B.B.’s statement identifying the shooter. Specifically, Williams challenges testimony

from a detective that the detective “was given a photo, and it was pointed out that the person

in that photo was the shooter.” Moments later, when shown the photograph, that same

officer testified that it was the “photograph provided to me by the victim.” Because

Williams did not object to the state admitting this evidence, we review this issue for plain

error. See Tscheu, 

.

       Williams argues that admitting B.B.’s statement identifying the shooter violated his

rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. 3

We review whether the admission of evidence violated the Confrontation Clause de novo.

State v. Sutter, 

, 764 (Minn. 2021). The Sixth Amendment guarantees a



3
  Williams separately argues the statement identifying the shooter was inadmissible
hearsay. Because we conclude that admitting the statement violated the Confrontation
Clause, we do not reach this issue.

                                             12
criminal defendant the right to be confronted with the witnesses against them. U.S. Const.

amend. VI; see also Minn. Const. Art. 1, § 6. This protection applies to the states through

the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. See Pointer

v. Texas, 

 (1965). A defendant’s rights under the Confrontation Clause

are violated when a court admits a statement and (1) “the statement in question was

testimonial,” (2) “the statement was admitted for the truth of the matter asserted,” and

(3) “the defendant was unable to cross-examine the declarant.” Sutter, 959 N.W.2d at 765.

           Williams has demonstrated that all three criteria are met here.       First, B.B.’s

statement identifying the shooter was testimonial because it was made to a detective for

the purpose of establishing past events relevant to a criminal prosecution. Davis v.

Washington, 

 (2006) (holding a statement is testimonial when it is given

to police and “the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution”). Second, the state offered the statement

for the truth of the matter asserted—that the person in the photo was the shooter. And

finally, Williams was unable to cross-examine B.B. because the state did not call B.B. to

testify.

           The state disagrees. Citing State v. Litzau, 

 (Minn. 2002), the state

first argues that the statement did not violate the Confrontation Clause because it was not

offered for the truth of the matter asserted. According to the state, because the out-of-court

statement “did not contain any out-of-court statements attributed to B.B.” 4 and the


4
  The state’s assertion is unconvincing because the detective’s two statements make it clear
that B.B. gave the officer the photo and identified Williams as the shooter.

                                               13
testimony “explained law-enforcement action,” it did not violate the Confrontation Clause.

We are not persuaded.

       “In criminal cases, evidence that an arresting or investigating officer received a tip

for purposes of explaining why the police conducted surveillance is not hearsay.” Litzau,

. Nevertheless, “a police officer testifying in a criminal case may not,

under the guise of explaining how [the] investigation focused on defendant, relate hearsay

statements of others.” State v. Williams, 

 (Minn. 1994) (alteration in

original) (quoting State v. Cermak, 

 (Minn. 1985)); see also State v.

Hardy, 

 (Minn. 1984) (“[E]ven a limited elicitation, for nonhearsay

purposes, of general testimony that a tip had been received that led to defendant’s prints

being compared with the latent print would have been unjustified in this case because the

potential of the evidence being used for an improper purpose outweighed its very limited

probative value.”).

       Here, the record plainly shows the state introduced B.B.’s statement identifying the

shooter for the truth of the matter asserted. The state relied on B.B.’s identification twice

during closing argument. The first time, the prosecutor stated: “You heard that the

detectives received a photograph of the shooter from [B.B.], that three of those individuals

. . . were not implicated in this offense at all and that . . . [Williams] identified himself as

the person on the far right [of the photograph].” The second time, the prosecutor said:

“[B.B.] gave a photograph that the officers learned was involved contained the shooter,

[and] that Mr. Williams identified himself as the same person.” The state clearly relied on




                                              14
B.B.’s statement for the truth of the matter asserted—that the individual identified in the

photograph was the shooter.

       The state next argues the admission of the statement did not violate the

Confrontation Clause because Williams initially elicited the testimony that B.B. identified

the shooter in the photograph. 5 But the U.S. Supreme Court has never held “that defendants

can ‘open the door’ to violations of constitutional requirements merely by making evidence

relevant to contradict their defense.” Hemphill v. New York, 

 (2022). In

Hemphill, the U.S. Supreme Court held that the trial court erred when it admitted

unconfronted testimonial hearsay on the grounds that the defendant had “created a

misleading impression that the testimonial hearsay was reasonably necessary to correct.”

. The situation in this case is not identical to Hemphill, but the underlying

rationale dictates a similar result: regardless of what evidence Williams introduced earlier

in the trial, because Williams could not confront the declarant of the hearsay statement

offered into evidence by the state, the state was barred from entering the statement into

evidence.




5
  The state is correct that B.B.’s identification of the shooter in the photograph was first
raised by Williams. As described above, this fact is irrelevant to whether a Confrontation
Clause violation occurred. In another case, under a plain error standard of review, this fact
might be relevant to whether a violation affected the defendant’s substantial rights. But,
as set forth in part II, we conclude the errors that occurred during Williams’s trial
cumulatively deprived him of a fair trial. Thus, we need not decide whether this error,
standing alone, affected Williams’s substantial rights. See State v. Keaton, 

 (Minn. 1998) (declining to determine whether each error, standing alone, would
warrant a new trial because the “errors, taken cumulatively, deprived the appellant of his
right to a fair trial”).

                                             15
       Finally, the state argues that it did not violate Williams’s Confrontation Clause

rights because Williams could have called B.B. as a witness. Again, we are not persuaded.

The fact that Williams could have called B.B. to testify does not relieve the state of its duty

to allow Williams to confront a declarant if the state wishes to rely on a statement. Cf.

Anderson v. State, 

 (Minn. 2013) (state bears the burden of proving that a

statement is not testimonial); State v. Warsame, 

 (Minn. 2007) (state

bears the burden of proving that defendant’s Sixth Amendment rights were not violated);

State v. King, 

 (Minn. 2001) (state bears the burden of establishing

witness unavailability and consequent necessity of hearsay evidence). As the proponent of

the hearsay statement, it was the state’s burden to permit Williams to confront the witness

who offered the statement against him.

       Because Williams’s Confrontation Clause rights were violated, we conclude that

plain error occurred when the statement identifying the shooter was admitted.

       B.     Opinion Testimony—Williams’s Guilt

       We next address Williams’s argument that the district court erred when it allowed

the lead detective to opine that Williams shot B.B. Specifically, the state elicited the

following testimony from the lead detective:

              [STATE]: Detective, did your review of these videos further
              your investigation in any way?
              [DETECTIVE]: Yes.
              [STATE]: Did they help you form any conclusions about who
              the shooter was?
              [DETECTIVE]: They did.
              [STATE]: And who did you believe the shooter was after that?
              [DETECTIVE]: Daryl Williams.



                                              16
               ....

               [STATE]: Based on your full investigation who do you believe
               the shooter on November 20th of 2021 was?
               [DETECTIVE]: Daryl Williams.

Because Williams did not object to the state introducing this evidence, we review this issue

for plain error.

       The state must ensure that its witnesses know the limits of permissible testimony.

State v. Underwood, 

 (Minn. 1979). In State v. Hogetvedt, we

concluded it was impermissible for a police officer to testify that he believed the appellant

was guilty of the charged crime. 

 (Minn. App. 2001), rev. denied

(Minn. May 29, 2003). There, the district court informed the state that it would be “totally

improper” for a police officer to testify that he believed the defendant was guilty. 

Despite this ruling, the officer testified that he believed the appellant assaulted the

complainant. 

 The appellant objected, and the district court struck the officer’s

testimony from the record. 

 The district court also instructed the jury that the officer’s

opinion was not evidence, and only the jury’s opinion mattered. 

 Despite these

safeguards, we determined reversible error occurred when the state elicited the officer’s

opinion regarding the appellant’s guilt and remanded for a new trial. 

.

       The state makes two attempts to distinguish Hogetvedt. First, the state asserts that

Hogetvedt is factually more egregious because the police officer’s testimony directly

contravened the district court’s order. Second, the state argues the issue addressed in

Hogetvedt is not reviewable when the defendant fails to object at trial because the opinion




                                             17
relies on the district court’s prior ruling that the testimony was “totally improper.” We are

not persuaded.

       First, the testimony in this case is somewhat more egregious than in Hogetvedt.

Here the state asked two leading questions seeking to elicit the lead detective’s personal

belief that Williams was the shooter. In contrast, the police officer in Hogetvedt articulated

his belief in response to an open-ended question. 

 (“Q: And what was your

response when she said that? A: Well, I told her . . . that I believed it was [appellant] that

assaulted her.” (alterations in original)). Thus, we are not persuaded that Hogetvedt is

distinguishable on the basis that the conduct was more egregious.

       Second, we disagree that Hogetvedt’s reliance on the district court’s pretrial order

shields the issue from plain-error review. In our nonprecedential decision in State v. Yual,

we concluded a police officer’s testimony about the issue of guilt was plain error, relying

on Hogetvedt. No. A07-0946, 

 (Minn. App. June 24, 2008), rev. denied

(Minn. Aug. 19, 2008). 6 There, a police officer opined that “a crime definitely had

occurred.” 

. Comparing the case to Hogetvedt, we reiterated the importance of

the “state’s duty to ‘ensure that its witnesses know the limits of permissible testimony,’”

and determined that the district court plainly erred when it allowed the state to admit the

officer’s impermissible testimony. 7 

 at *4 (quoting Hogetvedt, 

).



6
  While nonprecedential, and therefore not binding, we find this case helpful as persuasive
authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
7
  We ultimately concluded that the error in Yual was not reversible error, but that
conclusion was based on our determination that the improper testimony did not affect the
outcome at trial. 

, at *4.

                                             18
         Because the lead detective opined that Williams shot B.B., and we have previously

determined that such testimony is improper, we conclude that it was plain error for the

district court to admit such testimony in this case.

         C.    Opinion Testimony—Security-Camera Videos

         We next address Williams’s challenge to testimony from the detectives regarding

security-camera videos admitted at trial. Specifically, Williams argues the district court

erred when it allowed detectives to testify that (1) the person depicted in the security-

camera video from Williams’s apartment building was the same person who appears in the

gas-station security-camera video taken several hours before the shooting and (2) the

person depicted in both videos was Williams. Williams asserts that he objected to some of

this testimony. But we agree with the state that Williams failed to preserve an improper-

opinion objection to the challenged testimony. Therefore, we review this issue for plain

error.

         Minnesota Rule of Evidence 701 allows a lay witness to testify as to opinions and

inferences which are “rationally based on the perception of the witness” and “helpful to a

clear understanding of the witness’ testimony or the determination of a fact in issue.” Here,

Williams concedes that there are no precedential Minnesota decisions concluding that law-

enforcement testimony identifying an individual in a security-camera video is unhelpful to

the jury under rule 701. 8     Moreover, we have repeatedly concluded in nonbinding,


8
 Williams relies on State v. Ali, 

 (Minn. 2014), in which the district court
allowed police officers to testify about identifying the defendant in a security-camera video
during the course of their investigation but did not allow them to testify about their current
opinion that the defendant was depicted in the video. But because that case did not directly

                                             19
nonprecedential decisions that a district court did not err when it allowed law enforcement

to testify about the content of videos. See State v. Kasim, No. A18-1322, 

, at *4-6 (Minn. App. June 10, 2019) (concluding that a police investigator’s

“testimony was admissible lay-opinion testimony because it was rationally based on his

perception and helped the jury to understand his investigation”); State v. Armstrong, No.

A15-0924, 

, at *5 (Minn. App. Apr. 18, 2016) (“The record supports a

conclusion that the investigator had personal knowledge relevant to the content of the

surveillance video and that the testimony was helpful to the jury.”), rev. denied (Minn. June

29, 2016); State v. Clement, No. A14-1646, 

, at *5 (Minn. App. July 20,

2015) (concluding “the officer’s testimony here was rationally based on his perception of

the video, and was helpful to the jury’s clear understanding of his testimony regarding the

investigation and the decision to charge appellant”), rev. denied (Minn. Oct. 20, 2015).

       Under plain-error review, Williams must establish that an error occurred and that

the error was plain. See Pulczinski, 972 N.W.2d at 356. Because Williams admits there is

no caselaw conclusively resolving the issue he presents, we cannot conclude the district

court “contravene[d] case law, a rule, or a standard of conduct” when it permitted the

detectives’ testimony regarding the security-camera videos. Zinski, 

(quoting Hayes, 

). Therefore, Williams has failed to show the district

court plainly erred.




address the issue presented here, we cannot say that it forms an appropriate basis for
concluding a plain error occurred in this case.

                                             20
       D.     Privileged Medical Information

       We finally address Williams’s contention that the district court erred when it

allowed B.B.’s surgeon to testify about privileged medical information. Williams argues

the admission of the medical information directly contravened 

,

subd. 1(d) (2022), which prohibits, in relevant part, a surgeon from disclosing any

information or opinion they acquired while attending a patient in a professional capacity,

unless they have the consent of the patient. Because Williams did not object to the state

admitting this evidence, we review this issue for plain error. See Tscheu, 

.

       The record contains no information, one way or the other, regarding B.B.’s consent

to the surgeon’s testimony. And as the state observes, it is possible that B.B. consented to

the parties receiving his medical records, which would explain how the parties obtained

them. As the appellant, it is Williams’s burden to demonstrate that plain error occurred

and provide a sufficient record upon which we can make that determination.               See

Pulczinski, 972 N.W.2d at 356 (“Under the plain-error doctrine, a defendant must establish

(1) an error, (2) that is plain, . . . .” (emphasis added)). Given the possibility that B.B.

consented to the surgeon’s disclosure of his privileged medical information, Williams

failed to demonstrate that the district court erred, much less plainly erred, when it allowed

B.B.’s surgeon to testify regarding B.B.’s injuries.

                                             II.

       As set forth above, we conclude three evidentiary errors occurred during Williams’s

trial: the district court abused its discretion when it concluded the statement made minutes


                                             21
after the shooting was not an excited utterance; plainly erred when it allowed the detective

to testify that B.B. identified the shooter in the photograph in contravention of the

Confrontation Clause; and plainly erred when it allowed improper opinion testimony when

the lead detective testified that, in his opinion, Williams was the shooter. Having identified

the errors, we now address whether those errors require reversal.

       We assume, without deciding, that excluding the statement made minutes after the

shooting was harmless beyond a reasonable doubt, B.B.’s statement identifying the shooter

did not affect Williams’ substantial rights, and the lead detective’s opinion testimony did

not affect Williams’ substantial rights. See State v. Keaton, 

 (Minn.

1998) (declining to determine whether an error standing alone would warrant a new trial

because the “errors, taken cumulatively, deprived the appellant of his right to a fair trial”);

see also Zumberge, 

 (harmless beyond a reasonable doubt standard);

Tscheu, 

 (impact on substantial rights standard). Instead, we review

whether these “errors, when taken cumulatively, ha[d] the effect of denying [the] appellant

a fair trial.” State v. Fraga, 

 (Minn. 2017) (alteration in original)

(quoting State v. Yang, 

 (Minn. 2009)). Cumulative error results in a

new trial only in “rare cases” and, when evaluating such a claim, “we look to the

egregiousness of the errors and the strength of the State’s case.” 

       We conclude the identified errors collectively deprived Williams of a fair trial.

Here, the state relied heavily on improperly admitted evidence to identify Williams as the

shooter. Specifically, the jury should not have heard that B.B. identified the shooter in the

photograph—the same photograph where Williams later identified himself. Nor should


                                              22
the lead detective have been allowed to offer improper opinion testimony that Williams

was the shooter. These two errors, taken together, denied Williams a fair trial because the

remaining evidence the state relied on to identify Williams as the shooter came in the form

of a dark security-camera video. And the improper identification evidence was all the more

harmful when considered alongside the district court’s erroneous decision to disallow

Williams from entering evidence that B.B. identified the shooter as “Joker” at the scene of

the shooting, evidence Williams intended to use to support his defense that B.B. identified

someone other than Williams as the shooter.

       Considering these errors cumulatively, we are convinced that they had the effect of

denying Williams a fair trial. We therefore reverse Williams’s conviction and remand to

the district court for a new trial.

       Reversed and remanded.




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