This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


David Lee Brooks,


Filed September 2, 2003


Minge, Judge


Olmsted County District Court

File No. K2011610


Mike Hatch, Attorney General, Thomas R. Ragatz and Scott R. Goings, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55103; and


Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street S.E., Rochester, MN 55904-3712 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


David Brooks appeals from a conviction for fifth-degree assault, arguing that the trial court abused its discretion by admitting multiple hearsay statements and imposing a double upward departure, that he had ineffective assistance of trial counsel and appellate counsel, and that there is not sufficient evidence to support the jury’s verdict.  Because we find no abuse of discretion or ineffective assistance of counsel and because the evidence is sufficient to support the verdict, we affirm.



Appellant David Brooks was convicted of assaulting his girlfriend Roxanne Bennerotte, with whom he had been living.  The assault occurred in Bennerotte’s apartment.  At the time of the assault, Bennerotte’s 13-year-old son, Zachary, was staying with her.  Rick Nierman and John Melton, who also lived in the building, witnessed some aspects of the altercation.  During the incident, Nierman called his ex-wife, Cathy Nierman, and asked her to call 911. 

Nierman and Melton were awakened by Zachary, who went downstairs to report the trouble.  They went upstairs after hearing screaming, hollering, and pounding coming from Bennerotte’s bedroom.   

            Olmsted County Deputy Sheriff Gary Fiegel arrived at the residence in response to Cathy Nierman’s “911” call just as Rick Nierman was outside calling “911” himself.  Deputy John Mrozek arrived a few minutes later.  Deputy Mrozek saw Bennerotte’s injuries and observed that she appeared intoxicated.  Deputy Mrozek and Deputy Fiegel questioned the witnesses.  The deputies taped interviews with Bennerotte, Rick Nierman, and Zachary.  Bennerotte was eventually taken by ambulance to a hospital.  Brooks was arrested and taken to an adult detention center where Deputy Fiegel conducted a taped interview with him.  Brooks was charged with assault in the fifth degree in violation of Minn. Stat. § 609.224, subds. 1(2), 4(b). 

A few days later, Bennerotte filed for an order for protection (OFP) against Brooks.  The affidavit Bennerotte completed in support of the OFP details Brooks’ attack, the intervention of the housemates, and the arrival of law enforcement officers.  Bennerotte signed this affidavit under oath.  After two weeks, the court dismissed the OFP upon Bennerotte’s request. 

            A month after the incident, Bennerotte met with the county prosecutor, two detectives and a victim’s advocate.  She told them that a man named Troy had spent the night and then had assaulted her because she would not have sex with him.  About the same time, Bennerotte wrote two letters to the district court judge explaining that Brooks was not the man who assaulted her. 

            A jury trial was held, and several witnesses were called by the state.  Zachary testified that he was staying with his mother on the weekend of the assault.  He stated that on the night before the incident, his mother did not have any injuries, that he awoke at 8:45 a.m. to the sound of Brooks yelling at his mother, that he saw Brooks and his mother go into his mother’s bedroom and shut the door, that two or three times he heard his mother call for him to go get Rick Nierman, and that he went downstairs to awaken Rick Nierman and John Melton. 

Bennerotte testified that she was intoxicated from drinking the previous night, and that somebody had beaten her up.  She admitted that her statements to the deputies and county prosecutor naming Troy as the aggressor were a lie, that she could not remember who assaulted her, that she awoke to pain in her face and somebody pulling at her feet, and that she did not remember anything else until the police arrived. 

Bennerotte’s friend, Lisa Ableitner, testified that she visited Bennerotte in the hospital the morning of the incident.  She testified that Bennerotte told her that Brooks found her in bed with a man named Troy, that Brooks hit Troy, that Troy fled, and that Brooks then punched Bennerotte in the face, grabbed her hair, and threw her against the bedroom wall. 

Brooks testified on his own behalf.  He admitted to committing prior acts of abuse against Bennerotte, and against a former girlfriend.  He denied assaulting Bennerotte on this occasion, and insisted it was Troy who assaulted her.  He stated that he started fighting with Troy, that Troy left, and that he tried to console Bennerotte, who was hysterical and pounding on the floor with her fists. 

Both deputies testified.  They said that when they arrived Bennerotte appeared to be intoxicated, that she was bleeding from the mouth, that her cheek was swollen, that she had a black eye, that her hair was matted with blood, and that chunks of hair had been ripped from her head.  Deputy Mrozek also stated that he asked Bennerotte who had hit her and that she replied “[Brooks] hit me.”  Deputy Fiegel also stated that Bennerotte told him at the scene that she was afraid “he” was going to kill her.  She also stated that she had hit herself and that Fiegel should release Brooks because she had self-inflicted injuries.  At the hospital, she told Fiegel that she was afraid of Brooks and that this was not the first time that this sort of an assault had happened. 

Three potential witnesses were not available for trial.  Rick Nierman died before the trial.  John Melton could not be located.  Cathy Nierman did not testify because she was in Ohio with her mother, who was dying of cancer.  The state presented evidence of tapes and transcripts of Cathy Nierman’s “911” call, Rick Nierman’s “911” call, Rick Nierman’s statement to Deputy Fiegel, and John Melton’s statement to Deputy Mrozek.  The letters Bennerotte wrote to the judge were also admitted. 

Rick Nierman’s statement recounted that he could hear screaming, hollering, and pounding coming from Bennerotte’s bedroom above his apartment, and that he went upstairs to intervene.  He stated that he unsuccessfully tried to open the bedroom door, that Brooks appeared at the door and said that he and Bennerotte needed a few more minutes to talk, and that eventually Bennerotte ran from the bedroom.  Nierman continued that when she came from the bedroom, Bennerotte was bleeding from her mouth and had a black eye.  Nierman also related his phone call to his ex-wife in which he had asked that she call “911” and his subsequent “911” call.

Melton’s statement paralleled that of Nierman.  In addition, he reported that while the door to Bennerotte’s bedroom was opened, he could see that there was no one else inside except Brooks and Bennerotte, that Bennerotte was on her hands and knees begging for help, and that he ordered Brooks to let Bennerotte out of the room.  He also reported that when Bennerotte eventually ran from the room he saw that her hair was matted with blood, and that chunks of hair had been ripped from her head

At trial, appellant objected to six items of evidence on the grounds that they were hearsay.  These were the statements by Rick Nierman and John Melton to the deputies, the transcripts of the “911” calls by Rick and Cathy Nierman, statements Bennerotte made in her affidavit seeking an OFP, and the testimony of Lisa Ableitner.  The district court denied the objections.

The jury returned a guilty verdict.  The state moved for an upward double durational departure from the presumptive sentence of 24 months.  The district court granted this motion based on Bennerotte’s vulnerability due to her intoxication at the time of the assault, the particular cruelty of the crime, Brooks’ risk to the public, and because the crime was extremely severe and occurred when Bennerotte’s thirteen-year-old son was in the house.  This appeal follows.




Brooks first argues that the district court abused its discretion by admitting six hearsay statements that violated both the Minnesota Rules of Evidence and the Confrontation Clauses of the United States Constitution and the Minnesota Constitution.  Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court’s broad discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).   

Although generally inadmissible under the rules of evidence, hearsay statements may be admissible under one of several exceptions, including the excited-utterance exception and the catchall exception.  Minn. R. Evid. 803(2), (24).  The excited-utterance exception allows admission of “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).  The rationale for the excited-utterance exception to the hearsay rule stems from the belief that excitement caused by startling events eliminates the possibility of fabrication and ensures trustworthiness.  State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).  The so-called catchall exception to the hearsay rule allows a statement to be admitted in situations not covered by specific exceptions if the statement has “circumstantial guarantees of trustworthiness” similar to the specific hearsay exceptions and meets certain additional criteria.[1]  Minn. R. Evid. 803(24); State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  These other criteria are that the evidence be of a material fact, that the statement is more probative than other admissible evidence on the same point, and that the interests of justice will be served by admission of the statement.  Minn. R. Evid. 803 (24).

The parties concede that Rick Nierman was unable to testify because he died in May 2001.  Nierman called his ex-wife to report an assault in progress and instructed her to call “911,” which she did.  He gave a statement to the deputy sheriff immediately after the incident.  Brooks argues that the district court abused its discretion by admitting Nierman’s statement under the catchall exception because it lacked the requisite guarantees of trustworthiness.  We disagree.  There is a guarantee of trustworthiness here because Nierman could hear startling and frightening sounds behind Bennerotte’s bedroom door.  He confronted Brooks at the door, saw Bennerotte run from the bedroom, and saw her injuries.  The record shows no reason why he would lie to the deputies.  The dramatic nature of the incident and the fact his statement to the deputy was substantially contemporaneous with the incident, qualify it as an excited utterance.  Because of his firsthand knowledge, Nierman’s statement is highly probative and also fits under the catchall exception.  Thus, the district court did not abuse its discretion by admitting Nierman’s statement.  Since his call to “911” was also contemporaneous, it similarly was admissible under the excited-utterance exception to the hearsay rule.

Brooks argues that Bennerotte’s affidavit in support of the OFP should not have come in under the catchall exception to the hearsay rule.  In State v. Grube, the Minnesota Supreme Court held that a victim’s OFP affidavits and hearing transcripts were admissible in a domestic abuse case because the victim made the statements under oath, believed that she would be cross-examined later, and then testified under oath.  State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995).  Here, Bennerotte’s affidavit was sworn out under oath, she testified at the trial, and she was available for cross-examination.  The affidavit was trustworthy and was properly admitted under the catchall exception. 

Brooks also argues that admission of the hearsay evidence violated his constitutional rights under the Confrontation Clauses of the United States Constitution and the Minnesota Constitution.  Appellate courts must review de novo the issue of whether admitted testimony violates a defendant’s confrontation clause rights.  State v. King, 622 N.W.2d 800, 806 (Minn. 2001) (citing Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S. Ct. 1887, 1900 (1999); State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999)). 

The Sixth Amendment to the United States Constitution and article I, section 6 of the Minnesota Constitution afford the accused in criminal prosecutions the right to confront the witnesses against him.  A hearsay statement may be admitted into evidence without violating the Confrontation Clauses if the statement is both necessary and reliable.  State v. Byers, 570 N.W.2d 487, 493 (Minn. 1997).  To prove that hearsay testimony is necessary, the state must show that the witness is unavailable despite good-faith efforts to procure him or her.  King, 622 N.W.2d at 807.  To prove a hearsay statement is reliable it must either fall within a “firmly rooted” hearsay exception or have “particularized guarantees of trustworthiness.”  Id. at 808.  For example, the excited-utterance exception is firmly rooted for confrontation clause purposes, but the catchall exception is not.  State v Gates, 615 N.W.2d 331, 336-37 (Minn. 2000); State v. Hollander, 590 N.W.2d 341, 348 (Minn. App. 1999).  The Minnesota Supreme Court has recognized three factors bearing on whether a hearsay statement has particularized guarantees of trustworthiness: (1) whether the context of the statements and the persons to whom they were made suggest that the statements were trustworthy; (2) whether the declarant had a motive for lying or had memory deficiencies; and (3) whether the declarant had personal knowledge of the identity and role of the participants in the crime.  Grube, 531 N.W.2d at 489. 

            Because Nierman died, he was unavailable to testify at trial.  This satisfies the necessity prong of the confrontation clause analysis.  The same analysis of trustworthiness regarding admission of this evidence under the catchall exception applies here.  There is a threshold assurance of reliability, Nierman had no motive to lie, and Nierman had firsthand, immediate knowledge.  Thus the admission of Nierman’s statement and “911” call did not violate Brooks’ confrontation clause rights.

There is no constitutional confrontation clause issue with the admission of Bennerotte’s OFP affidavit because she testified and was available for cross-examination. 

We do not separately consider the other hearsay challenges.  We are not required to decide whether the district court abused its discretion in admitting each piece of evidence where any possible error in admitting the evidence was harmless beyond a reasonable doubt.  State v. Aligah, 434 N.W.2d 460, 460 (Minn. 1989); see also State v. Bauer, 598 N.W.2d 352, 367 (Minn. 1999) (holding that when evidence was erroneously admitted, such error was harmless when the evidence was insignificant and cumulative).  Cathy Nierman’s “911” call and Rick Nierman’s “911” call are cumulative because both give the same information on where the incident took place and who was involved.  John Melton’s statement to the police largely duplicates Nierman’s statement, the testimony from Zachary, and the testimony from the deputies.  Likewise, Bennerotte’s hospital statement to Lisa Ableitner and Bennerotte’s OFP affidavit are substantively duplicative in that both statements implicate Brooks and give details of the assault.  We have determined that the district court did not abuse its discretion by admitting Rick Nierman’s statement to the police, his “911” call, and Bennerotte’s OFP affidavit.  Even if Cathy Nierman’s “911” call, John Melton’s statement, and the Ableitner testimony were not admissible under any exceptions to the hearsay rule, we find they were cumulative to the other evidence, and that their admission, if error, was harmless beyond a reasonable doubt.


            Brooks next argues that the district court abused its discretion by imposing a double durational departure.  Absent an abuse of discretion, departure from a presumptive sentence will not be overturned.  State v. Spain, 590 NW.2d 85, 88 (Minn. 1999).  The district court “must articulate substantial and compelling reasons justifying the departure.”  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).  This court reviews the record to determine whether the reasons supplied support the departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  If the district court’s reasons justify the departure, this court will affirm the departure.  Id. 

A sentencing court has discretion to depart from the sentencing guidelines only when aggravating or mitigating factors are present.  Spain, 590 N.W.2d at 88-89.  A single aggravating factor may support a double durational departure.  State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985).  In determining whether to depart in sentencing, the district court must decide, “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).

            The jury found Brooks guilty of fifth-degree assault.  The court departed from the presumptive sentence because (1) Bennerotte was particularly vulnerable at the time of the crime due to her intoxication; (2) the assault was particularly cruel; (3) due to his past violent behavior, Brooks is a risk to public safety; and (4) Brooks’ conduct was extremely severe and occurred in the presence of Bennerotte’s thirteen-year-old son.

            1.  Vulnerability Due to Intoxication

            Under the Minnesota Sentencing Guidelines, victim vulnerability is an aggravating factor.  Minn. Sent. Guidelines II.D.2.b.(1).  A victim’s vulnerability due to intoxication may be considered a reason for upward departure.  See Ture v. State, 353 N.W.2d 518, 522 (Minn. 1984) (noting that the defendant’s conduct was significantly more serious than was typical because, inter alia, the victim was intoxicated).  However, the accused must be aware of the vulnerability.  State v. Hanson, 405 N.W.2d 467, 469 (Minn. App. 1987).  The evidence shows that Bennerotte appeared intoxicated when the police arrived after the incident.  However, there is nothing in the record to show that Brooks knew that Bennerotte was intoxicated that morning and therefore nothing to show he knowingly exploited her intoxication in assaulting her.  This factor does not support the departure.

            2.  Particular Cruelty

            Brooks argues that while this assault was reprehensible and inexcusable, it was not particularly cruel when compared to other fifth-degree assaults.  Particular cruelty is a permissible factor to support a durational departure.  Minn. Sent. Guidelines II.D.2.b.(2).  Gratuitous infliction of harm falls within this category.  State v. Jeno, 352 N.W.2d 82, 84 (Minn. App. 1984).  An element essential to the crime cannot be an aggravating factor. State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996), review denied (Minn. July 10, 1996).  But, infliction of not just one, but all, of the statutory definitions of the “harm element” of an assault, satisfies the requirement that the offense be significantly more serious than the typical offense.  See, e.g., State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (infliction of all of the factors defining “great bodily harm” made the first-degree assault significantly more serious than the typical, justifying an upward departure), review denied (Minn. Sept. 29, 1987). 

Here, Brooks was convicted of fifth-degree assault in violation of Minn. Stat.        § 609.224, subds. 1(2), 4(b) (2000).  Subdivision 1(2) states that whoever intentionally inflicts or attempts to inflict bodily harm upon another commits an assault and is guilty of a misdemeanor.  Minn. Stat. § 609.224, subd. 1(2).  Bodily harm is defined as, “physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (2000).  The record contains a photo of Bennerotte taken after the assault, showing a cut lip, black eye, bruised cheek, and blood-matted hair.  There is also evidence that she suffered pain in her ribs, head, hands, and face.  The record shows that the assault was particularly cruel because Brooks inflicted physical pain, injury, and impairment of physical condition.  This factor weighs in favor of the departure. 

            3.  Risk to Public Safety

            Generally, a defendant’s criminal history cannot be used as a reason for departure since that history is part of the determination of the presumptive sentence.  State v. Gross, 332 N.W.2d 167, 169 (Minn. 1983).  The guidelines do allow aggravation, however, when “[t]he current conviction is for an offense in which the victim was injured and there is a prior felony conviction for an offense in which the victim was injured.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (quoting Minn. Sent. Guidelines II.D.2.b.(3) (1984)).  The existence of such a prior conviction can justify a durational departure, even when no other aggravating factors are present.  See id. at 300.  But here, the assault was a felony-level assault because of Brooks’ previous assaults.  It would be duplicative to also use the prior convictions as grounds for the departure.  This factor does not weigh in favor of affirming the departure. 

            4.  Presence of Bennerotte’s Son

            Brooks argues that it is in the nature of domestic violence that children are present while their parent is assaulted.  Therefore, Brooks argues that courts may only permit upward departures in those situations in which a child’s presence renders the victim more vulnerable or where the offense was particularly outrageous. 

            The presence of a child in another room is a valid basis for departure and is analogous to a victim’s reduced physical capacity.  State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989).  In State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982), the Minnesota Supreme Court stated that the children’s presence in that case may have actually made the victim less vulnerable “because they were making noise and because the arrival of one of them with his parent caused defendant to flee.”  Id.  But the court stated that regardless, committing a crime in front of children victimizes the children and is particularly outrageous when the defendant knew children would be present.  Id.  The same rationale applies here.  While Zachary may have actually aided his mother by obtaining help, he was still a victim in the sense that he had to listen to his mother calling for help and hear the frightening sounds coming from his mother’s bedroom.  Since Zachary was sleeping on the couch in the living room of the apartment, Brooks must have been aware that he was present.  This factor weighs in favor of affirming the departure. 

We conclude that two aggravating factors are present.  Because the record shows substantial and compelling reasons for departing from the presumptive sentence and the district court articulated these reasons, we affirm the departure.


            Finally, in his pro se supplemental brief, Brooks argues that he had (1) ineffective assistance of trial counsel because his attorney did not read certain pieces of evidence to the jury; and (2) ineffective appellate counsel because his appellate attorney did not file a postconviction petition alleging ineffective assistance of trial counsel.  Brooks also alleges that there was insufficient evidence to support the jury’s verdict. 

            1.  Ineffective Trial Counsel

            To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted).  “A strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance.”  Id. (citation omitted).

            Brooks argues that his trial attorney should have read the jury two letters that Bennerotte wrote to the district court judge.  Brooks’ attorney questioned Bennerotte about the letters, and the letters were admitted into evidence for the jury to review.  Brooks also argues that his attorney should have read an email from defense investigator Patrick Montplaisir.  However, Montplaisir was called as a witness and testified as to the content of the email.

            Even if these acts of Brooks’s trial counsel fell below a reasonable standard of performance, Brooks does not show that the outcome would have been different but for counsel’s errors.  Instead the record shows that the desired evidence was brought to the attention of the jury and there is no reasonable probability the outcome would have been different. 

            2.  Ineffective Appellate Counsel

            Brooks claims that he did not receive effective assistance of appellate counsel because his appellate counsel did not seek a postconviction evidentiary hearing on the issues of ineffective trial counsel.  To prove a claim of ineffective assistance of appellate counsel predicated on ineffective assistance of trial counsel, the petitioner must first prove that trial counsel was ineffective.  Sanders v. State, 628 N.W.2d 597, 602 (Minn. 2001).  If the original claim of ineffective assistance of trial counsel fails, so does the claim against appellate counsel.  Id.  Because we find that Brooks has not shown that his trial counsel was ineffective, this claim fails.

            3.  Sufficiency of the Evidence

            Brooks argues the evidence was not sufficient to support the jury’s verdict that he committed fifth-degree assault.  In considering a claim of insufficient evidence, we conduct a painstaking review of the record to determine whether the evidence is sufficient to allow the factfinder to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The evidence is viewed in a light most favorable to the conviction.  Id.  This court assumes the jury believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  In coming to our conclusions on the admission of hearsay evidence, the district court’s discretion in imposing a double durational departure, and the effectiveness of both trial and appellate counsel, we have conducted a painstaking analysis of the record, and we conclude that the record shows that the jury could conclude beyond a reasonable doubt that Brooks committed fifth-degree assault. 


[1] The rule also requires that advance notice be given of any evidence to be offered under the catchall exception.  Minn. R. Evid. 803(24).  In this case, no claim is made that appropriate notice was not given.