This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Washington County District Court
File No. C8015361
Thomas A. Rothstein, Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)
††††††††††† Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.
Matthew Andrew Myers appeals the district courtís denial of his petition to rescind the revocation of his driverís license for driving while impaired.† Appellant denies that he drove while intoxicated and argues that there is insufficient evidence to support the revocation because the district court relied on inadmissible hearsay and failed to make adequate findings. We affirm.
††††††††††† On May 21, 2001, at approximately 3:15 a.m., City of Woodbury police officers responded immediately to a 911 call from Angela Myers reporting a violation of an order for protection at her apartment.† Angela Myers told the officers that she initially gave appellant permission to stay overnight at her apartment, despite the existence of a no-contact order excluding him from the apartment.† At 2:45 a.m., when she found him drinking vodka in the living room, they argued, and Angela Myers feared that appellant was going to assault her.† She left the apartment and got into her vehicle, but appellant followed her outside and drove his truck behind her vehicle to block it.† Appellant then went into the apartment and returned with a knife.† He pounded on Angela Myersís car windows and attempted to slash her tires.† Appellant then left in a Chevrolet truck.† Angela Myers told the officers that the truck, which had Wisconsin license plates, contained two dogs.††
At approximately 3:40 a.m., Officer Miller located the truck at a park approximately two miles from Ms. Myersís residence.† There were two dogs in the truck, the keys were in the ignition, the engine was warm, the truck had Wisconsin license plates, and the truck was registered to appellantís father.† Appellant was not in the vehicle.† An officer saw a man cross the street near the park but was unable to find him when he drove to that area.† At approximately 4:40 a.m., a K-9 dog found appellant at the side of a house hiding between an air conditioner and a wall, about two blocks from where the officer had seen a man cross the road.† Appellant told the officers that he had been drinking vodka that evening but that he had not been driving.† Appellant also stated that he had not been to his wifeís apartment and that he was merely out for a walk.† He did not explain why he was hiding.
††††††††††† The officers arrested appellant for driving under the influence of alcohol.† Appellantís blood alcohol, tested at 5:35 a.m., was .12.† Appellantís driving privileges were revoked.† Appellant petitioned the district court to rescind the revocation of his driverís license.† The district court denied the petition.† This appeal followed.
††††††††††† Appellant claims that the district court erred by failing to rescind the revocation of his driverís license because respondent failed to prove by a fair preponderance of the evidence that appellant had been driving a motor vehicle.† A reviewing court will not overturn findings of fact made by a district court in an implied consent proceeding unless they are clearly erroneous.† Berge v. Commír of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).† And the district courtís conclusions of law will not be set aside unless the district court erroneously construed and applied the law to the facts of the case.† Dehn v. Commír of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).††
Appellant correctly notes that the only direct evidence that he was driving is contained in Angela Myersís statement to the officers.† Angela Myers did not testify at the implied consent hearing.† Appellant objected to the introduction of her statement, through the testimony of the officers, as inadmissible hearsay.† The district court admitted the statement based on respondentís assertion that the statement was not offered to prove the truth of what she said, but rather to explain why the officers were looking for appellant.† Appellant does not challenge admission of the statement to explain the officersí actions, but argues that circumstantial evidence was insufficient to establish that he was driving, so the district court impermissibly relied on Angela Myersís statement for the truth of what was asserted.††
On appeal, respondent argues that even if the district court relied on Angela Myersís statement for the truth of the assertion that appellant was driving, the statement qualifies as an excited utterance, and therefore could have been admitted as an exception to the hearsay rule for the truth of the matter asserted.† Respondent asserts that even if the district court admitted the statement for the wrong reason, the ruling does not affect the substantial rights of appellant.† See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (holding that to demonstrate plain error there must be an error that was plain and that affected substantial rights of parties).† We agree.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
††††††††††† * * * *
(2) Excited utterance.† 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.
††††††††††† Angela Myersís statements were made in close proximity to her 911 call requesting police assistance for appellantís violation of a restraining order.† Angela Myers reported being threatened by appellant who was pounding on her car windows and attempting to slash her tires as she sought refuge in her car, surely a startling event.† Given the nature of the event and the proximity to the event of her statements to police, we conclude that her statements could have been admitted as direct evidence that appellant had been drinking vodka and was driving a Chevrolet truck with Wisconsin plates, containing two dogs.† Because the statement was admissible as an exception to the hearsay rule, use of the statement to prove appellant was driving does not violate appellantís substantial rights even though the statements were initially admitted for another purpose.
Furthermore, we conclude that the circumstantial evidence in the record is sufficient to support a finding that appellant was driving, without reliance on Angela Myers statement that he was driving.† Minutes after leaving Angela Myersís apartment, the officers found a Chevrolet truck with Wisconsin license plates, registered to appellantís father.† There were keys in the ignition, two dogs in the truck and the engine was still warm.† Appellant was the only person located in the area.† He was intoxicated and he was hiding.† The circumstantial evidence in the record supports a finding that appellant was driving the truck.
Appellant next argues that he is entitled to rescission of the revocation of his driverís license because the district court failed to make an explicit finding that he was driving.† The district court correctly noted that respondent had the burden to prove, by a fair preponderance of the evidence, that officers had probable cause to believe that the driver was in physical control of a vehicle and that he was actually in control of the vehicle.† See Roberts v. Commír of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985).† The district court explicitly found that the facts established by a preponderance of the evidence that the officers had probable cause to believe that appellant was both in physical control and actual control of the vehicle, but the district court failed to make an explicit finding that appellant was actually in physical control or driving the vehicle.
While it would have been preferable for the district court to have made an explicit finding that appellant drove the motor vehicle, such a finding is implicit in the district courtís denial of appellantís petition to rescind the revocation of his driverís license. See Umphlett v. Commír of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App.1995), review denied (Minn. Aug. 30, 1995) (finding that driver did not request an additional test was implicit in district courtís conclusion that driver's right to additional test was not denied); see also Daley v. Commír of Pub. Safety, 384 N.W.2d 536, 538 (Minn. App. 1986) (holding that district courtís memorandum implicitly found blood-alcohol test to be valid).† Failure of the district court to make the explicit finding that he was driving does not require reversal of the denial of appellantís petition.†
 Appellant also asserts that respondent failed to prove that he was in physical control of a motor vehicle when he was apprehended.† Respondent asserts that revocation is based on appellantís driving the vehicle to the park, not on alleged physical control at the time he was apprehended.
 Respondent asserts that the statement was later admitted to prove the truth of what was said, but the transcript reflects that the district court only received the evidence to explain why the officers were looking for appellant and the truck.