This opinion will be unpublished and

may not be cited except as provided by

Minn Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Juan Michael Smith,



Filed December 17, 2002


Peterson, Judge


Hennepin County District Court

File No. 01053374


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55155-6102; and


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55144


            Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.

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


In this appeal from a first-degree criminal sexual conduct conviction, appellant Juan Michael Smith argues that the district court erred by admitting into evidence the victim’s out-of-court statement and that police illegally searched his residence without a warrant.  We affirm.


            In June 2001, Smith and the victim, E.H., had been dating for about two years.  E.H. was 21 years old.  She and Smith had a five-month-old daughter, and E.H. was pregnant with their second child.  E.H. and Smith were not living together at the time of the offense, but she had a set of keys to Smith’s house and spent time there.

            Shortly before 9:00 a.m. on June 28, 2001, E.H. called 911.  She told the dispatcher that she had gotten into a fight with Smith, and he tied up her feet and wrists, gagged her, poured hot wax on her, carved on her body with a knife, and hit her in the head.  E.H. told the dispatcher that she escaped from Smith’s house and ran to the nearest pay phone to call 911.

            Minneapolis Police Officers William Kenow and Carl Blad responded to the 911 call.  They described E.H. as very frightened, shaking, and stumbling over her words with her voice cracking.  E.H. identified herself to the officers and told them that Smith had physically and sexually assaulted her.  E.H. stated that she had gone into an upstairs bedroom at Smith’s request, and then Smith began screaming at her and hitting her and tied her up and dripped hot wax on her.

            E.H. brought the officers to Smith’s house, but she was too frightened to go inside herself.  She told the officers that Smith was in an upstairs bedroom when she escaped.  The officers found Smith sleeping in an upstairs bedroom.  They woke him up and arrested him for domestic assault.  Kenow took Smith to the squad car, and Blad remained in the bedroom to secure the scene.

            E.H. told Blad that Smith had telephoned her repeatedly asking her to come to his house.  Fearing for her safety, she did not want to go, but eventually he persuaded her.  When she got to his house, she put her children on the couch downstairs, and she and Smith went upstairs to the bedroom.  Smith became angry and accused her of having another boyfriend.  Smith pushed E.H. down onto the bed on her stomach, put her hands behind her back, and held her down while he tied her hands.  Smith then tied E.H.’s feet together with a black cord and gagged her mouth with a white T-shirt.  He poked her with an orange knife and threatened to carve his name into her.  The gag came out of E.H.’s mouth.  She pleaded with Smith not to cut her and promised that she would get a tattoo with his name on it.  Smith picked up a candle and poured hot wax on E.H.  Smith stood up, unzipped his pants, pulled out his penis, grabbed E.H. by the hair, lay down on the bed, and told her to give him oral sex.  After ejaculating into her mouth, Smith pushed E.H. away and fell asleep.  Blad testified that on the way to jail, Smith commented, “That bitch sure give good head, though.”

            After placing Smith in the squad car, Kenow returned to the house and took pictures of E.H.’s injuries.  E.H. had indentations and red marks around both of her wrists, burn marks on her face, and candle wax in her hair and on her clothing.  E.H. told Kenow that Smith tied her wrists with shoelaces, tied her feet with a black electrical cord, gagged her with a T-shirt to stop her from screaming, dripped hot candle wax on her, and threatened her with an orange razor-blade knife.  A candle was on top of the bedroom dresser, and a shoelace was on the bed.  A black electrical cord, a rolled-up white T-shirt, and an orange knife were on the floor next to the bed.

            Carol Schwartz, a nurse at Hennepin County Medical Center, examined E.H. a few hours after the sexual assault.  E.H. told Schwartz that Smith shoved her down on the bed, bound her wrists with shoelaces and her feet with an electric charging cord, gagged her mouth with a shirt, threatened to carve his name on her with a knife, and poured hot wax on her.  Schwartz noted that E.H. had the following injuries: red markings around each wrist, consistent with something having been wrapped tightly around the wrists, and fresh bruises near her eye and on her chest, consistent with E.H. having been poked or punctured with a sharp object; and red marks, consistent with burns, on her face.  Schwartz also observed drops of wax on the sweater E.H. was wearing. 

            Swabs taken from E.H.’s mouth by Schwartz were examined by Dr. Garry Peterson.  Peterson reported that the swabs contained human male reproductive cells, commonly known as sperm heads, and that the cells were of recent origin or recently deposited.

            Minneapolis Police Sergeant Eddie Frizell, an investigator in the family-violence unit, interviewed E.H. about 14 hours after the assault.  E.H. stated to Frizell:  She and Smith lived together in 2000, but she moved out in July 2000, hoping that it would improve their relationship.  When E.H. and Smith lived together, he frequently threatened, hit, and argued with her.  E.H. tried staying with Smith again after their daughter was born, but on repeated occasions, he choked her until she passed out.  During the night of June 27-28, 2001, Smith phoned E.H. 13 times and left ten messages saying he wanted to talk to her and would come to her place if she did not come to his house.  In the messages, Smith said that he had heard rumors that E.H. was sleeping with a bunch of people and that there would be problems if E.H. did not come over and talk to him about it.  E.H. phoned Smith at 4:45 a.m. on June 28, 2001.  Smith said that he loved her and wanted to work things out and promised not to hurt her if she came to his house.  E.H. then agreed to go to Smith’s house.

            E.H. described the sexual assault to Frizell as follows:  When E.H. arrived at Smith’s house, he accused her of sleeping with a bunch of people, said she needed to pay him back, and instructed her to go upstairs to the bedroom.  In the bedroom, Smith tied E.H.’s hands behind her back with white shoelaces and tied her feet together with a black cord.  Smith had an orange knife and threatened to carve his name into E.H.  E.H. told him not to use the knife and promised to get a tattoo with his name on it.  Smith gagged E.H.’s mouth with a white T-shirt, so she would not scream when he cut her.  E.H. spit the T-shirt out.  Smith poked her repeatedly with the knife, leaving cuts on her skin.  After threatening to brand his name on her, Smith poured hot wax from a candle onto E.H., burning her face.  Smith told  E.H. that she was his, grabbed her by the head, pulled out his penis, forced her head down onto it, and ejaculated into her mouth.  E.H. told Frizell that she had burns on her face from the wax, cuts on her side and back from the knife, and bruising near her eyes.

Smith was charged by complaint with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (sexual penetration and circumstances existing at the time of the act caused the victim to reasonably fear imminent great bodily harm), (e)(i) (sexual penetration using force or coercion and causing personal injury) (2000); two counts of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (confining or removing from one place to another any person without the person’s consent to facilitate commission of any felony), (3) (confining or removing from one place to another any person without the person’s consent to commit great bodily harm or terrorize the victim) (2000); and one count of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2000) (assault with a dangerous weapon).

            After the assault, E.H. continued to have contact with Smith by phone and mail and in person.  E.H. sent cards to Smith stating that she loved him and could not wait to get married.  Smith sent letters to E.H. stating that he loved her and the children and directing her to tell his attorney that they had “kinky,” consensual sex and that she “made the rest up.”  E.H. contacted defense counsel and said that she wanted the case dismissed and that the sex on June 28 was consensual.

E.H. did not appear to testify at trial after being served with a subpoena, so the district court issued a bench warrant.  E.H. then agreed to testify in response to the subpoena, and the bench warrant was quashed.  At trial, E.H. testified that she did not want to testify against Smith and that she had lied to police.  She testified that she loved Smith, and they had plans to marry.

E.H. testified that she woke up at about 4:30 a.m. on June 28, saw the message light flashing on her answering machine, and discovered that Smith had called her 13 times and left several messages for her.  She called Smith back, and he asked her to come over to his house and promised not to hurt her.  E.H. testified that she consented to having her hands and feet bound and her mouth gagged; Smith cut her with a knife while playfully suggesting that he put his name on her; hot wax accidentally dripped on her when Smith moved a candle; and that the oral sex was consensual.  E.H. admitted that she had repeatedly sought police assistance due to Smith’s threats and violence.

Smith’s sister and her fiancé lived in the same house as Smith.  Smith’s sister testified that she and her fiancé were in their upstairs bedroom on the night of June 27-28, 2001, that she heard no yelling or other noises coming from Smith’s bedroom, and that when she got up at 7:30 a.m. to get ready for school, she saw Smith and E.H. asleep together.  Her fiancé testified that he heard no yelling or other noises coming from Smith’s bedroom during the night of June 27-28, 2001, and that when he got up to use the bathroom at 6:00 a.m., he saw Smith and E.H. asleep together.

A jury found Smith not guilty of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3), and guilty of the remaining charges.  The district court denied Smith’s motion for a downward durational and dispositional departure and sentenced him to an executed term of 144 months in prison, the presumptive term under Minn. Stat. § 609.342, subd. 2(b) (2000).


            The district court has broad discretion to make evidentiary rulings, and its decision will be reversed only when the discretion is clearly abused.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).  A defendant arguing that a district court erroneously admitted evidence has the burden of proving error and resulting prejudice.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).        

            The district court admitted E.H.’s statement to Frizell under Minn. R. Evid. 803(24), the residual exception to the hearsay rule, which excludes from the hearsay rule:

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.


            Smith argues that E.H.’s statement to Frizell did not have sufficient circumstantial guarantees of trustworthiness.  In State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985), the supreme court held that a statement had sufficient circumstantial guarantees of trustworthiness, and explained:

            First, there is no confrontation problem presented by the admission of the statement as substantive evidence, since [the witness] testified, admitted making the prior statement, and was available for cross-examination by defense counsel.  Second, since [the witness] admitted making the prior statement, there was no real dispute over whether he made it or over what it contained.  Indeed, the prior statement was taped.  Third, the statement was against [the witnesses’s] penal interest, a fact that increases its reliability.  Fourth, the statement was consistent with all the other evidence the state introduced, evidence which pointed strongly toward both defendant and [the witness’s] guilt.[1]


            Three of the four trustworthiness guarantees noted by the Ortlepp court are present in this case.  First, E.H. testified, admitted making the statement to Frizell, and was available for cross-examination.  Second, E.H. made the statement to Frizell and the contents of the statement were undisputed.  Third, E.H.’s statement to Frizell was consistent with other evidence presented by the state, including E.H.’s statements to the 911 dispatcher, Blad, Kenow, and Schwartz, the injuries to E.H., and the evidence found in Smith’s bedroom.  Although the statement to Frizell was not against E.H.’s penal interest, it was against her interest given her continuing relationship with Smith and her opposition to his prosecution.  See State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987) (listing as an indicator of trustworthiness the fact that statements were against declarant’s interest because she was hostile to prosecution and supportive of defendant, who was her boyfriend). 

            Smith also argues that E.H.’s statement to Frizell was not more probative than other evidence that the state could have procured.  Smith contends that E.H.’s in-court testimony was the most probative evidence as to what happened between her and Smith on June 28, 2001.  Smith cites no authority supporting this argument, and the argument is contrary to caselaw upholding the admission of a trial witness’s prior inconsistent statement under Minn. R. Evid. 803(24).  See, e.g., Ortlepp, 363 N.W.2d at 44.  As the state argues, E.H.’s statement to Frizell was more probative than other evidence because it was more detailed than E.H.’s other out-of-court statements and was in her own words, unlike her statements to Kenow, Blad, and Schwartz.  The district court did not err by admitting E.H.’s statement to Frizell.

2.         Smith argues that because the police did not have an arrest warrant, they illegally entered his home and arrested him.  Therefore, Smith contends, the district court erred by not suppressing the evidence seized from his bedroom and the statement he made in the squad car after his arrest. 

When reviewing a decision on a motion to suppress evidence, this court independently reviews the facts and determines as a matter of law whether the district court erred in suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court accepts the district court’s findings of fact unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Minn. Stat. § 629.341, subd. 1 (2000), states:

            Notwithstanding section 629.34 or any other law or rule, a peace officer may arrest a person anywhere without a warrant, including at the person’s residence, if the peace officer has probable cause to believe that within the preceding 12 hours the person has committed domestic abuse, as defined in section 518B.01, subdivision 2.  The arrest may be made even though the assault did not take place in the presence of the peace officer.


            The district court found that police had probable cause to believe that Smith had committed domestic abuse within the preceding 12 hours, and the evidence supports that finding.  See Minn. Stat. § 518B.01, subd. 2 (2000) (defining “domestic abuse” as committing against a family or household member physical harm, bodily injury, or assault and “family or household member” as persons who have resided together and persons who have a child in common); State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998) (probable-cause-to-arrest test requires the court to consider the facts objectively under the circumstances to decide “if a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed”). 

Minn. Stat. § 629.341, subd. 1, provides statutory authority for a police officer to make an arrest for domestic abuse not committed in the officer’s presence, but an arrest must still meet constitutional requirements.  See State v. Anderson, 388 N.W.2d 784, 786-87 (Minn. App. 1986) (not reaching issue of whether section 609.341 impermissibly conflicted with constitution).

            Under the Fourth Amendment,

[t]o justify a warrantless entry and search of a person’s home to make a felony arrest the state must show either consent or probable cause and exigent circumstances.  If such an entry is made without consent or probable cause and exigent circumstances, its fruit must be suppressed.


State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).

            The district court found that the officers’ entry into Smith’s house was a valid consensual entry.

Consent to entry is a well recognized exception to the warrant requirement.  Valid consent for police entry of a dwelling may be given by a third party possessing common authority over the premises.  Where common authority does not actually exist, consent to entry is still valid where, under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.


State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).

            Before opening the front door of Smith’s home for the police, E.H. told them that she had keys to the house; she had lived there in the past; she still occasionally stayed there; she and Smith had a child together, and she was possibly pregnant with a second child by Smith; and she had just left the house.  Kenow testified that he believed that E.H. was authorized to consent to the officers’ entry into the house based on “[t]he key, the living there, the domestic situation between the children and [Smith] and [E.H.]”  These facts are sufficient to support a finding of apparent authority.  See id.  (party who was more than casual visitor, had run of the property, and was old enough to understand seriousness of entry had apparent authority to consent to search).

            Because the officers’ entry into Smith’s home was a valid consensual entry, the officers had authority to arrest Smith under Minn. Stat. § 629.341, subd. 1, and E.H. had told the officers about the items Smith used to assault her, the seizure of evidence from Smith’s bedroom was legal under the plain-view doctrine. 

[E]vidence seized without a valid search warrant is nevertheless admissible if it is in plain view, there was a prior justification for an intrusion, the discovery was inadvertent, and there was probable cause to believe that the items seized were immediately apparent evidence of crime.


State v. Bradford, 618 N.W.2d 782, 795 (Minn. 2000).

            Before the district court, Smith argued that his statement about E.H. giving “good head” should have been suppressed because he had not been given a Miranda warning.  But the district court found that there had been no interrogation, that the only questions asked by police had been routine, preliminary booking questions, and that Smith’s statement was spontaneous and volunteered.  The evidence supports those findings.

            A Miranda warning need not be given before asking routine booking questions.  State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977).  A volunteered statement made by a suspect, not in response to interrogation, is admissible without the giving of a Miranda warning.  State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995).

             On appeal, Smith argues that his statement should have been suppressed because it was the fruit of an illegal arrest.  But because Smith did not make this argument before the district court, we will not address it on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court generally will not decide issues which were not raised before the district court.”) 


[1] Smith argues that the fourth Ortlepp factor is no longer valid in light of the Supreme Court’s holding in Idaho v. Wright, 497 U.S. 805, 819 (1990).  The Wright court held that only the circumstances surrounding the making of the statement are relevant to trustworthiness.  Wright, 497 U.S. at 819.  The Minnesota Supreme Court followed Wright in State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995), which, like Wright, involved a declarant who was unavailable to testify at trial.  But in Oliver v. State, 502 N.W.2d 775, 777 (Minn. 1993), which, like the present case, involved a declarant who testified at trial and recanted an earlier statement, the supreme court applied the four-factor Ortlepp analysis and concluded that the witness’s prior statement was admissible as substantive evidence under Minn. R. Evid. 803(24).  Smith cites no authority following Wright when a declarant testifies at trial and is subject to cross-examination.