This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Fern Bessie Kelley,




Filed March 5, 2002


Anderson, Judge


Mille Lacs County District Court

File No. K200392


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


Janelle P. Kendall, Mille Lacs County Attorney, Matthew M. Quinn, Assistant Mille Lacs County Attorney, Courthouse Square, 525 Second Street SE, Milaca, MN 56353 (for respondent)


Melissa V. Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Willis, Judge.


U N P U B L I S H E D  O P I N I O N



A jury convicted appellant of criminal vehicular operation causing bodily harm and driving after cancellation of her license.  Appellant argues that the district court erred when it admitted her fiancé’s response to an officer’s question as an excited utterance under Minn. R. Evid. 803(2).  We affirm.



Appellant was arrested and charged with several criminal offenses after she allegedly struck two bystanders with a vehicle in a bar parking lot.  The state filed an amended complaint charging appellant with four counts of misdemeanor criminal vehicular operation, violations of Minn. Stat. § 609.21, subds. 2b(1), (2)(i), (3), (4) (1998), and one count of gross misdemeanor driving after cancellation, a violation of Minn. Stat. § 171.24, subd. 5 (1998). 

            The disputed trial issue relevant to this appeal was whether appellant drove the vehicle that struck and injured two bystanders after a bar fight spilled out into the bar parking lot. 

            Six witnesses testified for the state.  A police officer testified that as he arrived at the bar, he observed a white two-door vehicle travel in the direction of his squad car and strike two individuals.  The driver, identified by the officer as appellant, exited the vehicle and ran back into the bar.

            A second police officer arrived at the parking lot a few moments later and was directed by the first officer to speak with a man sitting next to the bar’s entrance; the man was later identified as Jeremy Hacker, appellant’s fiancé.[1]  The second officer testified, over defense counsel’s hearsay and foundation objections, that Hacker told him that he had been involved in a bar fight.  The second officer then asked Hacker whether he knew who was driving the vehicle that struck the bystanders.  Hacker allegedly responded, “I think it was my girlfriend,” but also stated that he was unsure because  “the vehicle was going too fast by him to really see who the driver was.”

            The two bystanders who were struck and injured that night also testified.  The first bystander testified that the driver was “a woman, [and] had longer hair.”  The other injured bystander testified that she observed appellant walking towards the white vehicle, but also testified that she did not see appellant enter or drive the vehicle. 

            Other witnesses testified that (1) appellant exited the bar and entered a white vehicle; (2) appellant was the driver of the white vehicle; and (3) after the accident appellant stated, “I don’t even have a driver’s license.” 

Hacker testified that he was the driver of the white vehicle, but did not remember how the bystanders were injured.  He testified that the police officer who spoke with him was “a liar,” and denied ever speaking with him that night.  Hacker testified, however, that the scene was “[v]ery chaotic,” and that “there [were] people everywhere.”  A jury subsequently found appellant guilty of both offenses.  This appeal followed.  


We largely defer to a district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Ferguson, 581 N.W.2d 824, 831 (Minn. 1998); State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

I.          Firsthand Knowledge

Appellant first argues that although the car accident may have been a startling event, there was no evidence that Hacker witnessed it.  Consequently, appellant contends that because Hacker did not observe the startling event, and because he was not certain that his girlfriend was the driver, his statement should not be admissible as an excited utterance.[2] 

Minn. R. Evid. 602 provides:

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. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.


Moreover, “the declarant of a hearsay statement, like a witness, must have personal knowledge before a statement is admissible under a hearsay exception.”  Ferguson, 581 N.W.2d at 832 (citing Minn. R. Evid. 602 cmt.).  Nevertheless,

[d]irect proof of observation is not necessary; if the circumstances appear consistent with opportunity by the declarant, the [firsthand-knowledge] requirement is met. If there is doubt, the question should be for the jury. 


2 Charles T. McCormick, McCormick on Evidence § 272, at 210 (John W. Strong et al. eds., 5th ed. 1999) (footnotes omitted); 6 John Henry Wigmore, Evidence § 1751, at 222 (James H. Chadbourn rev. ed., 1976) (stating that a hearsay “declarant must appear to have had an opportunity to observe personally the matter of which he speaks”).    

Here, it is undisputed that Hacker was standing outside the bar near the location of the accident; therefore, “the circumstances appear consistent with [the] opportunity” for Hacker to observe the vehicle and the accident.  2 McCormick on Evidence, supra § 272, at 210; see also Lambrecht v. Schreyer, 129 Minn. 271, 275, 152 N.W. 645, 646 (1915) (an excited utterance may “describe the circumstances of the accident” or “describe or name the person responsible for it” (citations omitted)); Fed. R. Evid. 803 advisory comm. note (“Participation by the declarant is not required: a non-participant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor.”).

Therefore, we conclude that because Hacker had the opportunity to observe the attendant circumstances, his statement is not inadmissible for want of firsthand knowledge.  

II.         Excited Utterance

Appellant argues in the alternative that Hacker’s statement cannot fall within the excited-utterance exception to the hearsay rule because Hacker was not under an “aura of excitement” after a startling event, because he calmly answered the officer’s questions, and because he qualified his initial answer by noting, “I think it was my girlfriend.”

For a statement to be admitted under the excited utterance exception to the hearsay rule, there must have been a startling event or condition, the statement must relate to the event or condition, and the statement must be made under the stress caused by the event or condition. 


State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000) (citations omitted); see also Minn. R. Evid. 803(2).  The underlying rationale for the excited-utterance 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.”  State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).  “This is true, notwithstanding that the utterances are prompted by demands for information directed to the declarant,” State v. Ellis, 271 Minn. 345, 366, 136 N.W.2d 384, 397 (1965) (citations omitted), although statements elicited through police questioning are generally less trustworthy.  See State v. Fader, 358 N.W.2d 42, 44-45 (Minn. 1984).     

“There are ‘no strict temporal guidelines for admitting an excited utterance.’”  State v. Martin, 614 N.W.2d 214, 223-24 (Minn. 2000) (quoting State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999)). 

The trial court, in its discretion, determines whether the declarant was under the “aura of excitement,” and we review the determination for an abuse of discretion. 


Martin, 614 N.W.2d at 224 (quotation and citations omitted).

We conclude that the district court did not abuse its discretion when it admitted Hacker’s hearsay statement as an excited utterance. 

First, there was a startling event that night.[3]  Hacker testified that the scene was “[v]ery chaotic” and that “there [were] people everywhere.”  He testified that he was involved a bar fight that continued in the bar’s parking lot.  Moreover, the bystanders were struck by the white vehicle near the time and location of the fight. 

Second, Hacker’s statement related to the startling event, and was offered within close temporal proximity to the event.  The second police officer testified that he spoke with appellant probably less than one minute after arriving at the scene.  Hacker stated, “I think it was my girlfriend.”  See Fed. R. Evid. 803 advisory comm. note (“[T]he statement need only ‘relate’ to the startling event * * * thus affording a broader scope of subject matter coverage.” (citations omitted)).  Although Hacker subsequently denied making the statement at appellant’s trial, this must not be considered in determining whether the statement related to the startling event.  See State v. Stallings, 474 N.W.2d 645, 650 (Minn. App. 1991) (where a hearsay declarant subsequently recants an excited utterance, this does not negate the statement’s reliability because “[a]n excited utterance is reliable because ‘the excitement caused by the event eliminates the possibility of conscious fabrication’” (quotation omitted)), rev. on other grounds, State v. Stallings, 478 N.W.2d 491 (Minn. 1991).

Finally, Hacker was under the stress of the startling event.  It is undisputed that Hacker was involved in a bar fight, both inside and outside of the bar that night, and that he was bleeding from the fight.  See Gates, 615 N.W.2d at 337.[4] 

Therefore, we conclude that the district court did not abuse its discretion when it admitted Hacker’s hearsay statement as an excited utterance.

III.       Harmless Error

Appellant argues that because Hacker’s testimony was important to the state’s case, the district court’s error in admitting the statement was prejudicial.  Appellant argues that the several eyewitness identifications were impaired by the “disruptive and distracting circumstances surrounding the accident.”  She argues that the eyewitness testimony was not conclusive, and, therefore, Hacker’s statement was not cumulative.

Although we have already concluded that the district court did not abuse its discretion by admitting Hacker’s statement as an excited utterance, we also conclude that even if the statement was erroneously admitted, the jury’s verdict was surely unattributable to any error in admitting that hearsay statement.

If a district court errs in admitting evidence, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  Therefore, in completing a harmless-error-impact analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

The first officer at the scene, perhaps the only eyewitness to the accident who was not under the influence of alcohol, testified that appellant was the driver of the white vehicle that struck the bystanders.  His testimony was corroborated, with varying indicia of reliability, by four other eyewitnesses who observed the circumstances surrounding the accident.  The evidence that appellant was the responsible party was strong and significant, and although Hacker’s testimony on behalf of appellant was exculpatory, his relationship with appellant limited his usefulness to her defense.      

We conclude that the verdict was surely unattributable to any error in admitting the hearsay statement and we therefore affirm.


[1] The second officer testified that he spoke with Hacker “[p]robably just less than a minute” after arriving at the scene.

[2] Appellant also argues that the district court failed to make findings required by the excited-utterance rule.  Appellant provides no authority for this proposition.  See Banks v. State, C9-00-1216, 2001 WL 410219, at *2 (Minn. App. Apr. 24, 2001) (noting that “appellant has not cited a single excited utterance case where a court has made explicit findings of foundation before admitting a statement”).

[3] Appellant parses and segments the night’s events to argue that Hacker did not witness the startling event: the car accident.  The record, however, reflects that each event that night did not occur in a vacuum.  The record suggests the bar fight began inside, flowed outside, the car accident occurred, and the sequence of events ended a brief time later.  Therefore, whether there was one large startling event, or several independent startling events, is irrelevant.   

[4] Appellant suggests that Hacker calmly answered the officer’s questions.  There is no evidence in the record that suggests Hacker was calm when he answered the questions; indeed, he testified, among other things, that he was involved in a fight inside the bar and was injured during the fight.