IN COURT OF APPEALS
Filed July 19, 2005
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 03028593
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John M. Stuart, State Public Defender, Davi E. Axelson,
Assistant State Public Defender,
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
S Y L L A B U S
An assault victim’s reliable and trustworthy out-of-court statements identifying her abuser in a written response to an emergency-room questionnaire and to an attending nurse are non-hearsay statements of identification under Minn. R. Evid. 801(d)(1)(C).
O P I N I O N
this third-degree assault case, appellant challenges a victim’s out-of-court
statements admitted by the district court, the validity of the district court’s
jury instructions, and the imposition of a double upward departure from the
presumptive guidelines sentence. We
conclude that the out-of-court statements were admissible as non-hearsay or, in
the alternative, as exceptions to the hearsay rule. We also conclude that the district court’s
jury instructions were adequate. But
because the double upward departure from the presumptive sentence violates the
rule of Blakely v. Washington, 542
In the early morning of April 12, 2003, appellant Andre Robinson, the father of two children with Fountaine Thompson, arrived at Thompson’s townhouse. After opening the door for Robinson, Thompson became angry because she thought Robinson had been with another woman. The two argued, and Thompson ultimately received a “blow-out” fracture in the orbit of her eye. There are two explanations for the cause of the fracture. First, according to the testimony of the attending nurse at the hospital, Thompson stated that Robinson slapped her with an open hand to her face. This statement was replicated on a physical-assessment questionnaire completed by the nurse at the emergency room. The questionnaire also indicated that Robinson had grabbed Thompson before but had not hurt her.
Second, about a month after the incident, Thompson met with the prosecuting attorney and said that her injury was caused by accident; at trial, she admitted that she told the nurse that Robinson hit her but testified she did so because she was angry and wanted to get Robinson in trouble. According to this version of events, Thompson went into the bathroom to stop the argument with Robinson. After some time, Thompson peered out of the door to see if Robinson was in the hallway. At that moment, Robinson pushed the bathroom door and struck Thompson in the eye.
In May 2003, the state charged Robinson with third-degree assault and interference with an emergency call. At a pretrial hearing, Robinson objected to the admission of Thompson’s statements to the nurse implicating him in the assault. The state argued that the statements should be considered as non-hearsay because they were statements of identification, or, in the alternative, the statements were admissible subject to the medical diagnosis or catchall exceptions to the hearsay rule. The district court found that the statements were not statements of identification or admissible under the catchall exception, but admitted the statements pursuant to the medical diagnosis exception.
a jury trial, Robinson was convicted of third-degree assault. In February 2004, the district court
sentenced Robinson to 48 months in prison, a double upward departure from the
presumptive sentence of 24 months. See
I. Are Thompson’s statements admissible as non-hearsay or as exceptions to the hearsay rule?
II. Did the district court abuse its discretion by failing to instruct the jury on the definition of intent?
III. Does Robinson’s sentence violate the Sixth Amendment right to a jury trial under the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004)?
A district court
exercises discretion when it makes evidentiary rulings, and those rulings will
not be reversed absent an abuse of that discretion. State
v. Amos, 658 N.W.2d 201, 203 (
Hearsay is an
out-of-court statement that is offered to prove the truth of the matter
B. Medical Diagnosis or Treatment Hearsay Exception
district court admitted Thompson’s statements pursuant to the medical diagnosis
or treatment exception to the hearsay rule.
The exception admits hearsay “[s]tatements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis
Historically, caselaw has concluded that statements concerning the cause of an injury are inadmissible under the medical diagnosis or treatment exception:
Care should . . . be exercised in distinguishing between statements made to a physician relating to conditions and symptoms of the injury or ailment for which treatment is sought and statements made to the physician as to the cause of the injury or the circumstances concerning the manner in which the accident occurred. Such statements are inadmissible.
v. Richfield Plaza, Inc., 252
Courts have created
an exception to this principle for child-abuse cases, on the theory that the
child’s “statement identifying the abuser . . . is pertinent to treatment.” Larson,
453 N.W.2d at 47. The state argues that State v. Richards, 552 N.W.2d 197 (
Here, the district court observed that a domestic-abuse victim is equivalent to a child-abuse victim, so medical treatment is based on identifying the source of the injury in order to prevent further domestic abuse. But there is not a child-abuse victim in this case and Richards is unavailing because its holding is distinguishable. We conclude that the prohibitions of Peterson and Bellotti apply to these facts. Thompson’s statements to the nurse identifying Robinson as the abuser were not reasonably pertinent to her medical diagnosis or treatment. Thompson’s statements clearly fit within the category of statements made regarding the cause or manner in which the injury occurred. Accordingly, Thompson’s statements as to the cause of her injury are inadmissible under rule 803(4), the medical diagnosis and treatment hearsay exception.
C. Prior Statements of Identification
state next argues that Thompson’s statements are not hearsay under the
identification exemption contained in Minn. R. Evid. 801(d)(1)(C). A statement under this provision is not
hearsay if the declarant testifies at trial, is subject to cross-examination,
and the statement is “one of identification of a person made after perceiving
the person, if the court is satisfied that the circumstances of the prior
identification demonstrate the reliability of the prior identification.”
Many of the state and federal cases on this rule are in the context of pre-trial identifications, such as a photographic line-up. See, e.g., United States v. Owens, 484 U.S. 554, 562-63, 108 S. Ct. 838, 844 (1988) (“To judge from the House and Senate Reports, Rule 801(d)(1)(C) was in part directed to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification.”); United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981) (“The reasons for admitting identification statements as substantive evidence are that out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial, and the availability of the declarant for cross-examination eliminates the major danger of hearsay testimony.”); State v. Henderson, 620 N.W.2d 688, 698-99 (Minn. 2001) (holding rule 801(d)(1)(C) inapplicable to witness’s “drive-by” identification used as substitute for line-up because identification procedure was unreliable).
argues that rule 801(d)(1)(C) is strictly limited to line-ups and photographic
identifications. But the language of the
rule does not provide such limits.
Committee comments to the rule provide some guidance by referring to the
rule’s rationale as stemming “from the belief that if the original
identification procedures were conducted fairly, the prior identification would
tend to be more probative than an identification at trial.”
The state further argues that
State v. Hogetvedt, 623 N.W.2d 909 (
this court reversed the district court on the ground of prejudicial police testimony,
id. at 916, Robinson argues that the Hogetvedt language is dictum. But federal cases also support the state’s
argument. In Elemy, the Ninth Circuit observed that the non-hearsay
identification rule applies to “the instance where before trial the witness
identifies the defendant and then because of fear refuses to acknowledge his
previous identification.” 656 F.2d at
508. Similar to our case, the court
concluded that when a witness recants, the “prior identification can only be
introduced into evidence by a third party who was present at the original
conclude that the reasoning of Hogetvedt,
Elemy, and O’Malley applies to Thompson’s statements. Thompson testified at trial, was subject to
cross-examination concerning the statements, and made statements of
identification after perceiving Robinson, the father of her children.
The reliability of an
identification should be analyzed in light of the facts and circumstances that
exist at the time an identification is made and should not be colored by later
D. Catchall Hearsay Exception
state also argues that Thompson’s statements are admissible under State v. Ortlepp, 363 N.W.2d 39 (
not specifically covered by any of the foregoing [hearsay] exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a 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.
“For hearsay to qualify under this
provision, it must be established that there is some need for the evidence and
that the evidence has guarantees of trustworthiness equivalent to the specific
exceptions set out in Minn. R. Evid. 803.”
Kronebusch v. MVBA Harvestore Sys.,
488 N.W.2d 490, 495 (
conclude that Thompson’s statements are admissible under rule 803(24). First, the statements were offered as
evidence of a material fact, namely, that Robinson assaulted Thompson. Second, the statements are more probative
than any other evidence that the state could marshal because Thompson was the
only witness to the incident. Third,
because we have already stated that the district court rightly concluded that
the statements contain indicia of trustworthiness, admission of the statements
serves the interests of justice.
Finally, because Thompson’s statements were the subject of a pretrial
hearing, Robinson received sufficient notice of the state’s intention to offer
the statements into evidence. See
We have recently
concluded that Ortlepp is the applicable
standard for evaluating a district court’s decision to admit hearsay evidence
under the catchall exception. State v. Plantin, 682 N.W.2d 653, 658 (
In Ortlepp, the supreme court established a
four-part test for admitting hearsay statements under rule 803(24). 363 N.W.2d at 44. First, the declarant must be available for
cross-examination regarding the statement.
Here, the district court concluded that the statements did not fit the catchall exception. After examining the Ortlepp test, we disagree with the district court’s analysis. First, Thompson testified at trial and was available for cross-examination regarding her statements. Second, Thompson admitted making the statements to the nurse in her testimony. Third, although her statements were not against her penal interest, they were against her relationship interest with Robinson. In this aspect, Thompson’s statements are similar to statements ruled admissible by this court in Whiteside. See 400 N.W.2d at 146 (admitting out-of-court statements of defendant’s girlfriend under catchall exception incriminating defendant in criminal sexual conduct). Finally, the statements were consistent with all other evidence the state introduced at trial, which included testimony from the attending nurse and police reports that recorded statements Thompson made implicating Robinson. We therefore conclude that Thompson’s statements were also admissible under rule 803(24), the catchall exception to the hearsay rule.
In the end,
although we disagree with the reasoning the district court used in admitting
Thompson’s out-of-court statements, we affirm the conviction because the
statements are admissible on other grounds. Cf. Katz
v. Katz, 408 N.W.2d 835, 839 (
next argues that the district court erred by failing to instruct the jury on the
definition of intent. District courts
are afforded “considerable latitude” in the selection of language for jury
instructions. State v. Baird, 654 N.W.2d 105, 113 (
was charged with assault in the third degree.
The elements of the offense are these. First, that the defendant assaulted Fountaine Thomas. Assault means to commit an act with the intent to cause fear of immediate bodily harm or death or intentionally inflict or attempt to inflict bodily harm.
Second, the defendant inflicted substantial bodily harm on Fountaine Thompson. Substantial bodily harm means bodily harm that involves a temporary but substantial disfigurement; causes a temporary but substantial loss or impairment of the function of any bodily member or organ; or causes a fracture of any bodily member.
It’s not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault.
the defendant’s act took place on or about April 12, 2003 in
If you find that each of these elements has been proved beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proved beyond a reasonable doubt, defendant is not guilty.
This instruction is virtually identical to
argues that intent is an essential element of assault, so the district court
should have included the definition for intent codified in state law. See
There is no indication in the record that the jury was misled or speculated over the issue of intent. And the district court’s jury instructions did not seriously affect the fairness and integrity of the proceeding. We conclude that the district court’s jury instructions did not constitute plain error.
that his sentence, which includes a double upward departure, violates Blakely
v. Washington, 542
the Supreme Court applied the rule from Apprendi v.
The district court
sentenced Robinson to 48 months in prison, a double upward departure from the
presumptive sentence of 24 months for a defendant convicted of third-degree
assault with a criminal-history score of four.
The state argues
that Blakely does not apply to a
sentence imposed under the state guidelines because the guidelines should be
construed as advisory, not mandatory. As
support, the state cites the United States Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738
(2005). In Booker, the Court released a two-part opinion that concluded that Blakely applied to the federal sentencing
The state argues
Because the supreme
court has concluded that the
The state next
argues that even if the guidelines are mandatory, the proper remedy is to
remand for a new sentencing hearing and not to automatically impose the
presumptive sentence. The state cites State v. Hagen, 690 N.W.2d 155, 160 (
The state also
argues that because sentencing is a judicial function, this court has the
discretion to remand for a new sentence before a jury empaneled for the specific
purpose of sentencing.
D E C I S I O N
The district court properly admitted Thompson’s statements into evidence and instructed the jury on third-degree assault. We therefore affirm the conviction of third-degree assault. Because the district court’s imposition of a 48-month prison sentence on Robinson violates the rule enunciated in Blakely,we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded.
 The district court subsequently dismissed the charge of interference with an emergency call.
The United States Supreme Court recently held that testimonial hearsay
statements are only admissible under the Sixth Amendment’s Confrontation Clause
if the declarant is unavailable for trial and if the criminal defendant had a
prior opportunity for cross-examination.
The Supreme Court’s decision in Wright
 The supreme court granted review in Saue and Conger but stayed additional processing of those matters pending a final decision in Shattuck.