This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Terry Lee Banks,





State of Minnesota,



Filed April 24, 2001


Kalitowski, Judge


Ramsey County District Court

File No. K8992894


Stephen V. Grigsby, Kenneth M. Bottema, 1159 University Avenue West, St. Paul, MN 55104 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Terry Lee Banks challenges his conviction of assault in the third degree contending the district court erred in ruling that certain hearsay statements were admissible under the excited utterance exception.  We affirm.



            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

Appellant contends the victim’s statements identifying him as her attacker are inadmissible under the excited utterance exception because the victim lacked firsthand knowledge of who assaulted her.  We disagree.  An excited utterance is 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.”  Minn. R. Evid. 803(2).  To be considered 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.


Minn. R. Evid. 803 1989 comm. cmt.; State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992).  The rationale for this 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.”  Minn. R. Evid. 803 1989 comm. cmt.; State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).  Here, victim and appellant were in an argument prior to her assault.  The victim was punched, a startling event, and minutes later, while bleeding, she told officers that appellant hit her.  The victim’s statements to the police satisfy rule 803(2), and thus the district court did not err in concluding that her statements were excited utterances.

            Appellant argues that the excited utterances of the victim should not have been admitted because the district court did not make a finding that the victim personally observed appellant hit her.  Pursuant to Minnesota Rule of Evidence 602,

[a]        witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. 

But this “requirement of firsthand knowledge does not preclude a witness from testifying as to a hearsay statement which qualifies as an exception to the hearsay rule.”  Minn. R. Evid. 602 1977 comm. cmt.  Instead, rule 602 only precludes testimony regarding a hearsay statement

[w]here it is clear that the declarant did not have an opportunity to perceive the events in question and the declaration concerns matters not based on the observations of the declarant.

11 Peter N. Thompson, Minnesota Practice § 803.02 (1992); see Minn. R. Evid. 602 1977 comm. cmt. (stating that courts generally have required declarants to have firsthand knowledge to admit a hearsay statement).

            Appellant claims that under State v. Ferguson, the district court was required to make a finding that the declarant had personal knowledge before admitting his or her statement.  State v. Ferguson, 581 N.W.2d 824, 832 (Minn. 1998).  We disagree.  In Ferguson, the supreme court held that a drive-by shooting victim’s dying declaration was improperly admitted because his statement was “mere speculation” where he did not see the shooter.  Id. at 833.  But unlike this case, in Ferguson the declarant’s lack of personal knowledge was at issue in the case.  In Ferguson, (1) the district court “stated that [declarant’s] statement was a conclusion based on earlier events”; (2) the state attorney conceded that the declarant “did not see his shooter”; and (3) the defense filed a posttrial motion for a new trial arguing that the declarant’s statement was improperly admitted.  Id. at 832-33.  Here, appellant made a hearsay objection to the admission of declarant’s statements, but never challenged the foundation of the statements.  Nor did appellant raise the lack of foundation issue in his motion for acquittal or motion for new trial.  Also, the facts here make it likely that the victim observed her attacker because she was punched in the face, whereas in Ferguson, all of the windows were covered in the room into which the shots were fired.                         

            Finally, the Ferguson court applied “stringent admissibility rules” because it was a case where the dying declarant identified his killer.  Id. at 833.  But this case involves an excited utterance, not a dying declaration and appellant has not cited a single excited utterance case where a court has made explicit findings of foundation before admitting a statement.

            Finally, we reject appellant’s contention that the district court should have made a finding of personal knowledge because appellant did not have an opportunity to confront the victim, and was thus prevented from exercising his right to confrontation.  “[T]he admission of hearsay under a firmly-rooted exception does not violate the accused’s right of confrontation.”  State v. Gates, 615 N.W.2d 331, 336 (Minn. 2000) (citations omitted).  Moreover, “[t]he excited utterance exception is firmly rooted for purposes of Confrontation Clause analysis.”  Id. at 336-37 (citation omitted), and rule 803 specifically instructs that the availability of a declarant is immaterial for purposes of the excited utterance exception.