This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Mario Perez,




Filed October 30, 2001


Robert H. Schumacher, Judge


Steele County District Court

File No. K400195



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


Douglas L. Ruth, Steele County Attorney, Dawn Elizabeth Johnson, Assistant County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Lindberg, Judge.*



Appellant Mario Perez challenges his convictions for three counts of assault and his sentences, claiming that the district court erred (1) in admitting hearsay evidence at trial, (2) in denying him his right to a unanimous verdict by giving a jury instruction on transferred intent and (3) in sentencing him for two counts of assault. We affirm.


A Steele County prosecutor charged Perez with one count of criminal assault in the first degree and with two counts of criminal assault in the second degree in connection with events occurring on February 26, 2000 in Owatonna. At the time of the assaults, M.D., one of Perez's victims, lived in an Owatonna apartment with her husband and her daughter. Also living in the apartment were R.C. (M.D.'s mother) and Perez (R.C.'s boyfriend).

At trial M.D. testified that on the date in question, she, her two-year-old daughter, and R.C. left the apartment in M.D.'s car and visited a local restaurant. After leaving the restaurant, the three stopped at a nearby gas station. Perez had remained in the apartment, waiting for another person to give him a ride to Rochester.

According to M.D., when R.C. was about to enter the store to pay for the gas, Perez appeared and followed her into the store. Perez appeared to be angry. After Perez and R.C. returned, the four entered the car with R.C. driving, M.D. in the front passenger seat, M.D.'s daughter seated behind M.D., and Perez seated behind R.C.. The group began to drive to a clothing store.

During the drive, a heated discussion erupted among the three adult parties regarding the relationship between R.C. and Perez. R.C. pulled into another gas station, where the argument continued and M.D. told Perez words to the effect that he should "get it through [his] head that [R.C.] doesn't love [him] any more." Perez became furious, exited the car, and attempted to open the driver's side door where R.C. was seated. Unable to open R.C.'s door, Perez re-entered just as M.D. attempted to lock the rear door.

According to M.D., R.C. began driving again; all the while the argument continued. As R.C. was driving, Perez took out a knife and pulled her hair back toward him, saying words to the effect that "no one's going to make me [out to be] stupid" and that "everything 's going to end up in flames."

Observing these events, M.D. concluded that Perez was about to stab R.C. with the knife. M.D. turned around and grabbed Perez by the neck. Perez reacted by stabbing M.D. in her neck with the knife. Bleeding from the neck, M.D. exited the vehicle and called out for help. Perez then moved to the front passenger seat that M.D. had just left. By this time the car had come to a standstill near a video store, and R.C. was still in the driver's seat.

A bystander testified that he was going to the video store when this incident occurred. The bystander noticed that a struggle was taking place in M.D.'s car and saw M.D. exit the vehicle and call for help. He took her to the curb, told persons in the video store to call the police, and returned to assist M.D.. After another person had arrived to help M.D., the bystander approached the car in which R.C., Perez, and M.D.'s daughter were still seated. He noticed that R.C. and Perez were engaged in a struggle. The bystander reached inside the car, turned off the ignition, and removed the key. Perez then exited the vehicle and uttered threatening words toward the bystanders. Perez then ran away. Other witnesses present that day corroborated the bystander's version of the events that occurred after M.D. had been stabbed.

R.C. testified and corroborated M.D.'s version of the events leading up to the stabbing. But she testified that she and Perez were fighting for control of the car and then she noticed that M.D. was bleeding. R.C. testified that she never saw a knife.

Over defense counsel's objection, the district court permitted the prosecutor to play an audiotape recording of an interview between R.C. and a police officer that took place approximately one hour after the stabbing. During that interview, R.C. stated that Perez "started grabbing me and trying to point the knife to my daughter and then started to point the knife the knife on me." She also stated that she

saw my daughter all bleeding and stuff. And [Perez] was like on top of me trying to, you know, poke my daughter at the same time. And then [Perez] was trying to poke me or cut me or something because he said that if I don't go back to him that he was going to kill me. [Perez] was going to kill my daughter.


Defense counsel requested a cautionary instruction that this recorded statement would only be used as a prior inconsistent statement for impeachment purposes. The district court ruled that the statement was "sufficiently contiguous to the event" as to fall under Minn. R. Evid. 801(d)(1)(D) and therefore the statement was not hearsay and could be received as substantive evidence.

Perez also testified at trial. He stated that on the day in question, M.D. was yelling at him and grabbed him by the throat. He testified that in an attempt to push her away from him he forgot that he was holding a knife in his hand and accidentally stabbed her.

At the end of the trial, the district court gave the following jury instruction over defense counsel's objection:

[W]hen one person does an act with intent to cause fear in another person of immediate bodily harm or death, or intentionally inflicting or attempting to inflict bodily harm upon another but instead or in addition thereto inflicts bodily harm on a third person, then the law will consider that the harm inflicted was intended to be inflicted upon the third person.


The jury returned a verdict, finding Perez guilty of all three counts of assault. The district court imposed concurrent sentences of 27 months and 134 months for the second degree assault against R.C. and first degree assault against M.D. respectively. This appeal followed.


1. Perez claims the district court erred in admitting the recorded statements of R.C. made approximately one hour after the stabbing. He frames this hearsay issue in terms of the state impeaching its own witness. The district court, however, ruled that R.C.'s statements were admissible under Minn. R. Evid. 801(d)(1)(D). The court also declined to give a cautionary instruction to the effect that R.C.'s out-of-court statements were admissible only for impeachment purposes, indicating that the statements were admitted for the truth of the matter asserted and as substantive evidence. Thus, the issue is properly framed in terms of whether the district court erred in admitting R.C.'s statements under a hearsay exception or exclusion.

Appellate courts generally defer to the trial courts evidentiary rulings, which will not be overturned absent an abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Evidence in the form of hearsay is generally not admissible. Minn. R. Evid. 802. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c).

Notwithstanding this definition, the Minnesota Rules of Evidence explicitly exclude from the definition of hearsay any "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter" so long as the declarant testifies at trial and is subject to cross-examination concerning the statement. Minn. R. Evid. 801(d)(1)(D). The comments to this rule suggest that the rule is meant to cover "spontaneous statements" and note that the "subject matter of the statement must describe an event or condition at or near the time the declarant perceives the event or condition." Id. 1989 comm. cmt.

There exists no clear-cut definition of what constitutes a spontaneous statement occurring "at or near" the time the declarant perceives the relevant event. But the supreme court has indicated that statements occurring a few minutes after the event will suffice while statements recorded at a police station less than an hour later likely will not. See State v. Pieschke, 295 N.W.2d 580, 582, 584 (Minn. 1980). Since R.C.'s statement was recorded at the hospital about an hour after the relevant event, it did not occur "at or near" the time she perceived the event and therefore does not fall under Minn. R. Evid. 801(d)(1)(D).

Nevertheless, we hold that R.C.'s statement was properly admitted as substantive evidence under a separate hearsay exception. R.C.'s statement qualifies as an excited utterance, i.e., 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). Such statements are not excluded by the hearsay rule regardless of the declarant's availability to testify. Minn. R. Evid. 803.

The content of R.C.'s statements suggests that she was under the stress or excitement of the stabbing at the time she made the statements. Further, the record indicates that R.C. was very upset, was crying, and was at the hospital, where her daughter was being treated for the stab wound, at the time she made her statement to the police. Accordingly, R.C.'s statement was admissible as an excited utterance, notwithstanding the fact that she gave her statement an hour after the startling event occurred. See State v. Daniels, 380 N.W.2d 777, 782-84 (Minn. 1986) (excited utterances made hour after startling event admissible).

2. Perez contends that the district court's instruction concerning transferred intent effectively presented alternative theories of the crime to the jury, thereby abridging his right to a unanimous verdict. Unanimous jury verdicts are required in criminal cases. Minn. R. Crim. P. 26.01, subd. 1(5). But jurors need not agree on the alternative ways in which a crime might have been committed. State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). This court has held that, in a prosecution for terroristic threats, the jury was not required to agree on which of the two victims mentioned in the threat the defendant intended to terrorize. State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). Similarly, the jury here was not required to agree on whether Perez stabbed M.D. with the intent to inflict bodily harm on her or, as R.C.'s trial testimony may have indicated, with the intent to inflict bodily harm on R.C.

Perez was charged with three counts of assaults. Two of these counts were based on the stabbing of M.D. The third charged Perez with using a dangerous weapon against R.C. but not with infliction of bodily harm. The transferred-intent instruction addressed Perez's mental state, not which acts he committed. Perez cites no authority holding the jury must agree on which of alternative mental states the defendant possessed.

3. Perez claims that the district court erred in sentencing him for two assaults, one each against R.C. and M.D. Perez argues that it is unclear from the jury's verdict whether it believed he committed one or two assaultive acts. As previously discussed, the unanimous-verdict argument does not have merit. The jury found that Perez committed one assault involving physical harm to M.D. and one assault not involving physical harm directed at R.C.. On the evidence presented, these were two separate acts, and the district court did not err in sentencing Perez on both counts.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.