This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





James William Long,



Filed August 7, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 99126043


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


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant contends that the district court abused its discretion:  (1) by restricting the admission of evidence about the victim’s prior instances of exchanging sex for drugs; (2) in admitting the victim’s hearsay statements to police under the excited utterance exception; and (3) in admitting the victim’s hearsay statements to a sexual assault nurse under the medical diagnosis 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).


            Every “criminal defendant has the right to be treated with fundamental fairness and afforded a meaningful opportunity to present a complete defense.”  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000) (quotation omitted).  A meaningful defense “includes the opportunity to develop the defendant’s version of the facts, so the jury may decide where the truth lies.”  State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (citation omitted), review denied (Minn. Jan. 23, 1996).  The Confrontation Clauses of the United States and Minnesota Constitutions guarantee the right to cross-examine and impeach witnesses to show possible bias.  Id.  Generally, courts must allow a defendant to present evidence that is material and favorable to the defendant’s version of the case.  Id. at 866. 

            But a defendant has no right to introduce evidence that does not comply with established rules of evidence.  Tovar, 605 N.W.2d at 722.  In a prosecution for criminal sexual conduct, the rape shield law provides that evidence of a victim’s previous sexual conduct is inadmissible except by court order.  Minn. Stat. § 609.347, subd. 3 (1998).

In certain cases the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded by the rape shield law.


State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (citation omitted). 

            Appellant contends that the admission of evidence that L.K. previously traded sex for drugs would help establish that he believed that L.K. was consenting to sex during the alleged rape.  Thus, he argues that Minn. Stat. § 609.347, subd. 3, interfered with his constitutional right to present his theory of the case.  We disagree. 

Appellant’s argument fails because whether L.K. previously traded sex for drugs is not relevant to appellant’s theory of the case.  Although appellant claimed consent as a defense, he admitted at trial that L.K. did not consent to the sexual act.  Rather, appellant testified that when he asked L.K. to give him sex for drugs L.K. told him that “I ain’t into that now.”  He also testified that during the sex act, L.K. was “scared out of her wits,” and that L.K. struggled to get away prior to the rape.  Instead of claiming consent, appellant’s testimony attempted to establish the defense of duress by his claim that he had sex with L.K. only because his codefendant pointed a gun at him and he feared for his life.  Moreover, because appellant was allowed to testify that L.K. had a history of trading sex for drugs, any additional testimony about L.K.’s prior instances of trading sex for drugs was not relevant to whether appellant was under duress during the commission of the offense.  See Minn. R. Evid. 401 (“‘Relevant evidence’ means evidence having 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.”).  We conclude the district court did not abuse its discretion or limit appellant’s ability to present his case. 


Next, appellant contends that the district court abused its discretion by admitting L.K.’s hearsay statements to the police as excited utterances because L.K.’s statements were answers to deliberate questions and because L.K. had an opportunity to calm down after the rape.  We disagree.

The excited utterance exception is based on the theory that when “the declarant ‘blurts out’ something, it is more apt to be true.”  State v. Willette, 421 N.W.2d 342, 349 (Minn. App. 1988) (emphasis omitted), review denied (Minn. May 16, 1988).  Thus, statements resulting from police questioning are deemed less trustworthy. See State v. Fader, 358 N.W.2d 42, 44-45 (Minn. 1984).  But determining whether the declarant was under the necessary “aura of excitement to ensure the trustworthiness of the statement” is within the sound discretion of the trial court.  State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985).

            Here, two police officers spoke with L.K. nearly 20 minutes after she escaped from appellant’s residence.  One of the officers testified that L.K. was crying and appeared upset.  The other officer testified that he could not tell if L.K. was crying but he did observe that she was upset.  We are mindful that courts must be especially careful in admitting statements by victims in response to police questioning.  But because the district court was in the best position to evaluate the situation we conclude the district court did not abuse its discretion in finding L.K.’s statements to the police qualified as excited utterances.


            Appellant also contends that the Sexual Assault Resource nurse’s hearsay testimony was not admissible under the medical diagnosis exception because her role is simply to gather evidence for criminal prosecution.  We disagree. 

            Minnesota Rule of Evidence 803(4) allows admission of hearsay, regardless of the availability of the declarant, where the statements are

made for purposes of medical diagnosis or treatment and describing medical history, 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 or treatment.


The rationale behind the rule

focuses upon the patient and relies upon the patient’s strong motive to tell the truth because diagnosis or treatment will depend in part upon what the patient says.


United States v. Iron Shell, 633 F.2d 77, 83-84 (8th Cir. 1980).  “[S]tatements regarding who caused injuries generally are not admissible because they are irrelevant to medical diagnosis and treatment.”  State v. Bellotti, 383 N.W.2d 308, 312 (Minn. App. 1986) (citation omitted), review denied (Minn. Apr. 24, 1986).

            Here, the nurse testified that in addition to obtaining evidence from the sexual assault and obtaining an accurate description of the attack, she performs a forensic exam that helps medical staff with treating patients for injuries and for sexually transmitted disease.  Although the nurse was permitted to testify about appellant’s identity, appellant does not contest his participation in the sexual act.  Moreover, in this particular case, the nurse prescribed antibiotics to L.K.  Thus, we conclude the nurse was doing more than compiling evidence for a future criminal case and the district court did not err in admitting the nurse’s testimony.   See id. (affirming the admission of statements made by sexual assault victims to a doctor despite the fact the doctor may testify in a criminal proceeding).