This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Hennepin County District Court
File No. 01027596
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, Minnesota Public Defender, Michael C. Davis, Special Assistant Public Defender, Suite 1042, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.
On appeal from a conviction of burglary in the first degree, appellant Arthur Jamar Griffin argues that the district court committed reversible error by instructing the jury under one theory of burglary in the first degree and permitting conviction under another theory of burglary in the first degree and abused its discretion and erred as a matter of law by admitting a videotaped interview between the victim and a police officer for substantive purposes. Appellant also raises an ineffective-assistance-of-counsel claim, in a pro se supplemental brief. We affirm.
Appellant and S.F. have been involved in a romantic relationship. But one morning, at approximately 6:00 a.m., S.F. was in her apartment with another man when appellant arrived and entered the apartment with a key S.F. had given to him to use to check on her apartment when she was out of town. The details of what occurred were the subject of disputed testimony at trial, but it is undisputed that two of S.F.’s neighbors telephoned 911 and reported an assault occurring in the hallway of the apartment building. When Officer Daniel Lewis arrived at the apartment building, he observed appellant and another man getting into a vehicle in front of the building and asked them to wait during the investigation of the complaint.
S.F. saw an officer in the hallway from the door of her apartment and motioned for him to come over to her apartment. As Officer Lewis entered her apartment, he noted that the chain on the door had been broken and the molding pulled from the doorframe but the deadbolt had not been broken. Officer Craig Schmidke entered the apartment a few moments later and made the same observations about the door chain, frame, and deadbolt. S.F. told the officers that a man had forced his way into her apartment and assaulted her. Officer Lewis asked her to step outside and look at two men. Appellant and the other man were shown to S.F. at the front door of the building. S.F. told the officers that the other man had not been involved but after hesitating, told them that appellant’s clothes looked familiar. S.F. returned to her apartment but 15 or 20 minutes later approached Officer Schmidke and asked him if the man she had been shown was Arthur Griffin and told the officer that Griffin was the one who had broken her door.
Photographs taken during the investigation showed, among other things, the damage to the entry door and trash and an overturned wastebasket on the bedroom floor of S.F.’s apartment.
Later on the same morning, S.F., at the request of the police officers, went to the police department to speak with Detective Charles Ryan, who had been assigned to investigate the incident. S.F. described the break-in and assault in detail in a videotaped interview, and Detective Ryan took photographs of injuries to S.F.’s lip and to the inside of her mouth. In the interview, S.F. said she was in her bedroom with a friend between 6:00 a.m. and 6:15 a.m. when the telephone rang. She did not answer her telephone and shortly after heard a key turning in the back entry door near her bedroom. She got out of bed and went to the door, which was being pushed open but was still chained. S.F. pushed the door closed, and locked it. She then heard the front entry door opening. She had locked and chained that door before going to bed. She leaned against that door, pushed it closed and locked it. The key turned in the lock, and she tried to hold it closed but could feel pressure from the other side. She assumed it was appellant because no one else had a key to her apartment. She told appellant to leave. The pressure stopped. She backed away from the door, and appellant entered the apartment, kicking in the door with his foot breaking the chain and molding. S.F. told appellant that she had company and he needed to leave. Appellant went into the bedroom and asked S.F.’s guest who he was and what he was doing there. S.F. threatened to call the police and went into the living room. Appellant followed and poured the contents of a bottle of liquor on the floor and threw the bottle on the floor, pushed S.F. onto the floor and punched her with his fists while calling her names and asking about the man in her apartment.
Appellant returned to the bedroom, questioned the man, went through the pockets of his clothes and S.F.’s purse and threw the purse onto the floor. Appellant took S.F.’s diary from under the mattress and S.F.’s keys from the kitchen counter, and he marched the guest out of the apartment and down the hallway. S.F. followed them into the hallway asking for her keys. After escorting the guest from the building, appellant returned to the hallway and rushed towards S.F.; she retreated but appellant hit her with his fist, and she fell against an apartment door. Appellant continued to hit her, and she fell to the floor. Appellant kicked her in the ribs and continued to punch her. S.F. screamed and asked appellant not to hit her. He stopped and S.F. went back into her apartment and sat on the bedroom floor crying. Appellant entered, poured the contents of the bedroom wastebasket over her head, put the wastebasket on her head, and hit the wastebasket multiple times. When he stopped, S.F. took the wastebasket off her head, and appellant asked her why she had someone in the apartment. She said it was her house. Appellant hit her several more times, and then left. S.F. went to the door to close it and saw the police in the hallway.
Appellant was charged with burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1(c) (2000). S. F. continued to have contact with appellant and several months after giving her statement, telephoned Detective Ryan and told him she did not want to pursue charges against appellant. S.F. told Flattum, one of the neighbors who had called 911, that she did not want to see appellant punished, that she believed the prosecution was going to use him as a “star witness,” and that he did not have to respond to a mailed subpoena. A week before appellant’s trial, S.F. telephoned an investigator for the defense and told him that appellant had not used force to enter the apartment, had not hit her, and she had caused the damage to the door. At the omnibus hearing, appellant’s attorney told the court that S.F. had recanted her statement to the police and moved the court to exclude her statements to the police from evidence. The prosecutor moved for admission of the statement as substantive evidence pursuant to Rule 803(24) of the Minnesota Rules of Evidence. The district court denied appellant’s motion and granted the state’s motion.
S.F. recanted her statement during the trial and testified consistently with what she had told the defense investigator and said that she bruised her lip as a result of tripping over the telephone cord and hitting her head on a table. She admitted that prior to trial she told the prosecutor that (1) appellant broke down her door on the date in question; (2) appellant pushed her down, cutting her lip; (3) she asked appellant to leave but he would not; and (4) she asked appellant not to hit her.
Jerry Flattum, whose apartment was near S.F.’s apartment, testified that he was awakened at 6:00 a.m. by what he thought to be a break-in. Through the peephole of his apartment door, he saw a man trying to enter the apartment across the hall. Flattum saw the man enter the apartment. He heard raised voices, as if a man and woman were arguing, then saw two men come out of the apartment and walk toward the exit at the back of building. A woman came out of the apartment, and one of the men ran back towards her. Flattum heard the woman say, “Oh, no. Oh, no, please, please don’t. Don’t hit me.” Flattum saw the man hit the woman “with a closed fist.” The woman fell onto Flattum’s door and to the floor. Flattum called 911 and told the operator that a man was “beating the s--- out of a woman” and that the woman was screaming “please don’t hit me.”
Victoria Wagner, who also lived near S.F., testified that she was awakened by screaming either in the hallway or in an apartment in the building. A woman was screaming for a man to stop hitting her. She called 911 and told the operator “there’s this guy beating this woman in the hallway in my apartment building.”
At the conclusion of the jury trial, the jury found appellant guilty of burglary in the first degree. Appellant moved for a mistrial, a new trial, and a Schwartz hearing; moved to postpone sentencing; and moved for the sentencing court to recuse itself from the sentencing hearing. The district court denied these motions. Appellant then moved for a downward durational departure in his sentence, which the district court also denied. The district court sentenced appellant to 74 months, fined appellant $50, and surcharged appellant $38. This appeal followed.
I. Variance between charge in complaint and conviction
Appellant asserts that his conviction must be reversed because he was charged with assaulting S.F. “within the building,” but the jury was permitted to convict him on the basis of evidence showing that the assault occurred on the building’s “appurtenant property.” A reviewing court will reverse a conviction when the conviction is at variance with the indictment only when the “variance deprived the defendant ‘of a substantial right, namely, the opportunity to prepare a defense to the charge against him.’” State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (quotation omitted). “Ultimately, [a reviewing court] must ask whether the erroneous charge denied the defendant the opportunity to prepare an adequate defense.” Id. (citation omitted).
Minn. Stat. § 609.582, subd. 1(c) (2000), provides:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree * * * if:
(c) the burglar assaults a person within the building or on the building’s appurtenant property.
The complaint, in accordance with the statute, stated:
That on or about March 31, 2001, in Hennepin County, Minnesota, [appellant]entered a building, without consent and with intent to commit a crime or committed a crime, while in the building and assaulted S.D.F., a person within the building.
For purposes of section 609.582, “[b]uilding” is defined as:
[A] structure suitable for affording shelter for human beings including any appurtenant or connected structure
and “[d]welling” is defined as “a building used as a permanent or temporary residence.” Minn. Stat. § 609.581, subds. 2, 3 (2000). “[T]he definition of ‘dwelling’ includes appurtenant structures.” State v. Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).
When counsel and the court met to discuss jury instructions, counsel and the court agreed to use the term “dwelling” in the instructions rather than “building” and to add the phrase “an apartment is a dwelling.” The prosecutor suggested excising the instruction’s reference to “the dwelling’s appurtenant property” based on his belief that the state had to prove that the assault occurred in the apartment and that the term “appurtenant” would confuse the jury. Defense counsel did not object, but the district court disagreed, explaining that there was no difference between an assault in the apartment or the hall. Nonetheless, at the conclusion of the trial, the district court instructed the jury that one of the elements of first-degree burglary is that a person “enter a dwelling without the consent of the person in lawful possession. An apartment is a dwelling.”
During deliberations, the jury sent two questions to the district court.
1. While in the dwelling” does this imply only the apartment unit or include the unit plus the hall, etc.?
2. If it does not include the hallway, can we consider the events in the hallway as part of the assault for purposes of determining first-degree burglary?
The district court, after giving both parties overnight to consider the questions, asked the parties for their opinions on how the question should be answered. The prosecution, despite its earlier position, argued that the jury should be told that “dwelling” includes the hallway and that they could consider the events in the hallway. Defense counsel argued that although case law would support those answers, given the prosecutor’s statements during the conference on jury instructions, it would be unfair in this case to allow the jury to consider the events in the hallway. Ultimately, the district court instructed the jury that they could consider the events in the hallway because that answer was the proper answer to the question in accordance with the law.
We hold that the district court did not commit reversible error despite the fact that the supplemental instruction differed from the original charge because (1) the appellant was not deprived of the opportunity to prepare an adequate defense and (2) the district court accurately informed the jury of the law.
Appellant’s defense was that no assault occurred, either in the apartment or in the hallway, and defense counsel clearly called into question, in the opening statement and during cross-examination, both Flattum’s and Wagner’s testimony that appellant assaulted S.F. in the hallway. Because appellant adequately presented a defense as to whether he assaulted S.F. in the hallway of her apartment, the variance between the complaint and the jury instructions is not reversible error.
In State v. Glowacki, the Minnesota Supreme Court concluded that the district court erred by instructing the jury on the duty to retreat in self-defense cases because the district court removed the word “retreat” from the instruction. 630 N.W.2d 392, 402 (Minn. 2001). The court reached this decision despite the fact that the prosecution and the defense both agreed to the removal of “retreat.” Id. at 397.
We agree with the district court that the implication of the Glowacki decision is that a district court is required to give an accurate instruction despite the stipulations and agreements of counsel. The district court, in the present case, did not err by giving the jury an accurate supplemental response to the jury’s question regarding whether dwelling included the hallway of S.F.’s building because “dwelling” in the context of a first-degree burglary charge includes the hallway.
II. Admission of S.F.’s statement
A reviewing court largely defers 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). But a reviewing court will review the “surrounding circumstances of an out-of-court statement [for] sufficient guaranties of trustworthiness” pursuant to Minn. R. Evid. 803(24) as a question of law. State v. Hollander, 590 N.W.2d 341, 346 (Minn. App. 1999).
Appellant argues that the district court abused its discretion and erred as a matter of law by admitting the videotaped interview between S.F. and Detective Ryan for substantive purposes pursuant to Minn. R. Evid. 803 (24), because the statement was not reliable. We disagree.
Rule 803(24) provides:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name, address, and present whereabouts of the declarant.
Rule 803(24) is generally known as the “catch-all exception” to the hearsay rule and permits hearsay to be admitted in cases in which the declarant testifies
if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803.
State v. Ortlepp, 363 N.W.2d 39, 41-44 (Minn. 1985) (holding that accomplice’s recanted statement was admissible pursuant to rule 803(24)).
Despite the fact that S.F. was the victim in this case and not the accomplice as in Ortlepp, her hearsay statement is sufficiently trustworthy, as a matter of law, under factors similar to those used by the Ortlepp court to find the accomplice’s statement trustworthy: (1) lack of a confrontation problem; (2) admission that declarant made the statement; and (3) the statement was consistent with all of the other evidence introduced by the state.
Here, as in Ortlepp, the admission of this hearsay statement does not raise Confrontation Clause problems because S.F. testified and was available for cross-examination by defense counsel. See Ortlepp, 363 N.W.2d at 44. Second, as in Ortlepp, “there was no real dispute over whether [she made the statement] or what [the statement] contained.” Id. Third, S.F.’s statement was consistent with all the other evidence introduced by the state, “which pointed strongly toward[s]  defendant[’s] guilt.” See Ortlepp, 363 N.W.2d at 44. Appellant argues that the fourth factor should not be relied on because the Supreme Court’s decision in Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139 (1990), makes clear that the “determination of the reliability of the statement must be determined exclusively from the circumstances surrounding the taking of the statement.” But see Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (applying fourth factor of Ortlepp by noting that hearsay statement “not only was consistent with but closely corroborated [victim’s] statement to the police.”). Wright is inapplicable to the present case because there theCourt examined the admissibility of the hearsay statement under the Confrontation Clause, which is not an issue in this case. Wright, 497 U.S. at 816, 110 S. Ct. at 3147.
At trial, S.F. testified that she made the statement in anger at appellant because she had learned that he had fathered a child with another woman. Appellant asserts that the statement was unreliable because it was made in anger. But the statement was videotaped, and S.F. was available for cross-examination. The statement was made very close to the time the events described occurred and was fresh in S.F.’s mind and included numerous details corroborated by police and witness observations. The jury was in a position to judge S.F.’s credibility both on the tape and at trial. The district court did not abuse its discretion by admitting the statement pursuant to Rule 803(24).
III. Ineffective assistance of counsel
In order to properly establish a claim for ineffective assistance of counsel, an appellant
must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).
Appellant, in his pro se supplemental brief, alleges that he received ineffective assistance of counsel because (1) his attorney did not raise involuntary intoxication as a defense to the charges, (2) he believes that his attorney waived the omnibus or probable cause hearing, or may have appeared on appellant’s behalf at the hearings and, therefore, he asserts that he did not have an opportunity to present facts or confront witnesses.
Appellant failed to meet the burden of proving his ineffective-assistance-of-counsel claim because he failed to adequately prove the elements of such a claim. See State v. Ture, 632 N.W.2d 621, 632 (Minn. 2001) (stating that while appellant alleged that his counsel committed several errors at trial, appellant made no attempt to prove the above elements “and therefore fails to meet his burden”).
Appellant argues that counsel should have raised a defense of involuntary intoxication but provides no evidence to support this claim. Appellant also fails to present any evidence to support his claim that he did not waive his omnibus hearing and his preliminary probable-cause hearing or that his attorney appeared on his behalf. The record demonstrates that appellant had both a probable-cause hearing and an omnibus hearing and that he was present at both hearings. His presence at these hearings provides sufficient evidence that appellant was given the opportunity to address the claims against him. Appellant’s pro se claims are without merit.
 S.F. had previously told the defense investigator that appellant had pushed or kicked in the door; had poured out a bottle of alcohol when he entered the apartment; had fought with the guest, during which fight she was pushed down and injured; and when the guest left, there were no more problems in the apartment.
 Appellant cites State v. Voracek, 353 N.W.2d 219 (Minn. App. 1984), for the proposition that any variance in the conviction from the complaint is grounds for conviction reversal. But Voracek is distinguishable from the present case. In Voracek, this court concluded that it was reversible error to charge appellant under one statutory provision and to convict him under a different statutory provision. Id. at 220. Here, unlike Voracek, appellant was convicted and charged under the same statutory provision.
 But in State v. Hansen, 312 N.W.2d 96, 102-03 (Minn. 1981), in considering whether statements of unavailable witnesses bore sufficient “indicial of reliability” to avoid conflict with the confrontation clause, the supreme court recognized the traditional view that ex parte statements made during police questioning are “inherently untrustworthy.” Hansen involved exculpatory statements, statements made to gain a reward and statements made in exchange for leniency, and is distinguishable from the instant case. Id at 101.