This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Tyrone Gregory Jones,


Filed June 12, 2001


Crippen, Judge


Hennepin County District Court

File No. 54407



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


William G. Clelland, Anna Krause Crabb, Carson, Clelland & Schreder, Suite 305, 6300 Shingle Creek Parkway, Minneapolis, MN 55430 (for respondent)


Leonardo Castro, Chief Public Defender, Peter W. Gorman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.

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




Appellant challenges the sufficiency of the evidence to convict him and contends that the trial court committed plain error by permitting the police officer to testify to hearsay statements and by allowing the state to impeach the victim with her prior inconsistent statement.  We affirm.



In June 2000, appellant Tyrone Jones attended a picnic with his girlfriend, S.J., the mother of his child and the victim of his crime.  They argued about whether to leave the picnic—appellant wished to stay and S.J. wished to leave—so appellant drove her home.  They continued to argue in the car, where, S.J. testified, appellant grabbed “her by the throat and began choking her,” which caused her to lose consciousness.  When they arrived at their apartment complex, S.J. asked appellant to let her out of the car so that she could go to the store across the street to buy something.  Instead, she went to the store and called 911 to report the assault.  

Officer Darrell Kortan arrived at the store approximately three minutes later.  He testified that S.J. “was very upset” and “seemed to be fearful” and told him that appellant choked her in the car.  He also testified that S.J. told him that when they arrived at the apartment complex, appellant got out of the car, went over to the passenger side, pulled her across the front seat, threw her to the ground, and held her down.  Officer Kortan testified that S.J. showed him marks on her throat, which appeared to be fresh and consistent with marks she would have received from being choked.  He also testified that appellant would have had to use his left hand to leave the marks, which appeared on S.J.’s right side, which he stated would be “cumbersome” to do while driving but possible.  Officer Kortan took S.J. to a domestic-abuse counselor because she told him that she did not feel safe returning home.

            At trial, S.J. recanted her story.  She testified that she made the story up to get back at appellant for wanting to return to the picnic against her wishes and claimed that appellant never assaulted her.  She explained that the marks on her throat were “passion marks” she received from appellant the day before.  She admitted to making all of the statements, but claimed that they were lies.

            Appellant testified at trial.  He denied assaulting S.J. and confirmed her testimony about the marks seen on her neck. 

The court, acting as fact-finder after appellant waived his right to a jury trial, found appellant guilty of fifth-degree assault.  Subsequently, the court sentenced appellant to 30 days in the workhouse, stayed for two years, and a fine of $700, with $600 of the fine stayed for two years.  The court imposed as conditions to the stay the requirements that appellant commit no crimes of violence, comply with a no-contact order if S.J. ever requests one, and remain law-abiding.


1.      Sufficiency of the evidence

The standard of review on appeal for a sufficiency of the evidence claim is the same for bench trials as it is for jury trials.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  When reviewing the sufficiency of the evidence, an appellate court is limited to determining “whether, under the facts in the record and any legitimate inferences that can be drawn from them,” the fact-finder reasonably could have found defendant guilty.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).  The court will not retry the facts, but instead views the evidence in the light most favorable to the verdict and assumes the fact-finder believed the state’s witnesses and disbelieved all evidence to the contrary.  Id.  But the court gives due regard to the state’s burden to prove appellant’s guilt beyond a reasonable doubt.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

Appellant contends that S.J.’s recanted testimony is insufficient to convict him, relying on this court’s decision in State v. Lehikoinen, 463 N.W.2d 770 (Minn. App. 1990).  In Lehikoinen, this court reversed a fifth-degree assault conviction where it determined that the alleged victim’s recanted testimony was not sufficient to meet “the high standard of proof beyond a reasonable doubt.”  Id. at 772.  The court reversed because it found “[t]here is no evidence, direct or circumstantial, that supports appellant’s conviction.”  Id

Respondent argues, and we conclude, that Lehikoinen does not govern this case.  Unlike Lehikoinen, S.J.’s recanted testimony was not the only evidence presented to convict appellant.  As appellant asserts, no medical testimony was presented, the record shows a plausible explanation for S.J. to lie, and there is evidence permitting misgivings about the manner in which S.J. first said the choking occurred.  Nevertheless, police testimony supports the conviction.  Officer Kortan testified about S.J.’s demeanor at the time of her statement, the injuries he observed that were consistent with choking, and the possible suffering she experienced after appellant parked the car.  Viewing the evidence in the light most favorable to the trial court’s finding of guilt, sufficient evidence supports the conviction.     

2.      Hearsay

Appellant did not object at trial but contends on appeal that the court impermissibly allowed hearsay to come in through the officer’s testimony.  A defendant’s failure to object to an alleged error during trial ordinarily forfeits the right to review.  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  But a defendant may obtain appellate review of plain errors that affect substantial rights and deprive him or her of a fair trial.  Id.; accord Minn. R. Crim. P. 31.02.

The trial court did not err because S.J.’s statements qualify as excited utterances.  “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” is not excluded by the hearsay rule.  Minn. R. Evid. 803(2).  The statement qualifies as an excited utterance if made within a short period of time after the startling event unless the declarant has had a chance to calm down.  E.g., State v. Daniels, 380 N.W.2d 777, 782-84 (Minn. 1986) (finding statement made as long as an hour after the startling event may be considered an excited utterance).

In this case, Officer Kortan responded to the 911 call within three minutes.  He testified that S.J. seemed upset and fearful, which means that she had not calmed down when Officer Kortan spoke with her.  Therefore, her statements are excited utterances.  Moreover, the court could have employed the catchall hearsay exception to admit the evidence because her statements had circumstantial guarantees of truthworthiness: the declarant was available for cross-examination, and her statements were consistent with the bruises on her neck and the officer’s observation that she seemed upset and fearful.  See Minn. R. Evid. 803(24).

3.      Impeachment

Appellant contends that the court committed plain error by allowing the state to impeach S.J. with her prior inconsistent statement.  If the state’s primary reason for calling a witness is to obtain admission of otherwise inadmissible prior statements, the evidence should not be admitted as impeachment evidence.  State v. Hodges, 384 N.W.2d 175, 184 (Minn. App.), aff’d as modified, 386 N.W.2d 709 (Minn. 1986).  Otherwise, a party may impeach its own witness.  Minn. R. Evid. 607.

In this case, there is no evidence that the state knew S.J. would recant her prior statements.  Moreover, even if her statements constituted improper impeachment evidence, the error was harmless because the statements were properly admitted through the officer’s testimony as excited utterances.