This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Donald Edarde Moorhead,


Filed July 13, 2004


Wright, Judge


Ramsey County District Court

File No. K5-02-4470


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Wright, Judge.



U N P U B L I S H E D   O P I N I O N



            In this challenge to his conviction of second-degree assault, appellant argues that the district court’s admission of hearsay statements of the victim constitutes plain error.  We affirm.



            Appellant Donald Moorhead’s conviction arises out of an altercation at his residence in St. Paul, shortly after midnight on the morning of September 13, 2002.  When Moorhead’s nephew came to the residence to do his laundry, Moorhead and his nephew got into an argument about a stolen bicycle.  Following this dispute, Moorhead’s brother confronted Moorhead.  Moorhead pulled out a knife and stabbed his brother in the abdomen.  Moorhead was charged with second-degree assault, a violation of Minn. Stat. § 609.222, subd. 1 (2002).

            The case proceeded to trial, during which Moorhead’s nephew, his brother, and the investigating police officer gave testimony implicating Moorhead.  Moorhead’s nephew testified that, prior to the stabbing, Moorhead’s brother said to Moorhead, “[P]ut that knife away.”  After Moorhead pretended to give an object to his girlfriend, Moorhead’s brother then stated, “You still got the knife in your back pocket.  I can see it.”  Regarding the same events, Moorhead’s brother testified that he told Moorhead, “Put the knife down.”  When Moorhead threw a screwdriver to the ground instead, Moorhead’s brother responded, “That’s a screwdriver.  I know a knife when I see one.”

            A police officer arrived at the scene around 12:45 a.m. and spoke to Moorhead’s brother before he was sent to the hospital.  The officer testified that Moorhead’s brother told her that Moorhead stabbed him in the abdomen.  Moorhead’s brother later gave a similar account during his trial testimony.



            The only substantive error Moorhead asserts is improper admission of hearsay.  He specifically challenges the testimony of his nephew and the police officer detailing statements made by the victim.  Moorhead failed to object at trial to the testimony that he now challenges on appeal.  If a defendant fails to object to evidence at trial, we review its admissibility for plain error.  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  The defendant bears the burden of establishing that an error was obvious and that it affected the defendant’s substantial rights.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002); accord United States v. Olano, 507 U.S. 725, 732-34, 113 S. Ct. 1770, 1777 (1993).  Reversal is required only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”  Strommen, 648 N.W.2d at 686 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1554, 1549 (1997)).

            A statement is hearsay if it is made outside of court and is offered to prove what it asserts.  Minn. R. Evid. 801(c).  Hearsay ordinarily is not admissible as evidence.  Minn. R. Evid. 802.  Some out-of-court statements, by definition, are not hearsay and are admissible.  Minn. R. Evid. 801(d).  For example, a witness’s out-of-court statement of identification or a present sense impression is not hearsay if that witness testifies at trial.  Minn. R. Evid. 801(d)(1)(C), (D).

            A statement of identification is admissible if it is made after the witness perceived a person and the circumstances of the identification offered a reliable opportunity for the witness to identify that person.  Minn. R. Evid. 801(d)(1)(C).  If the witness is the victim of a close assault and that witness’s perception is not otherwise impaired, a district court may admit that witness’s out-of-court statement of identification.  Cf. State v. Hogetvedt, 623 N.W.2d 909, 912 (Minn. App. 2001) (finding assault victim’s statement of identification admissible where victim made statement, while in severe pain and heavily medicated, three hours after assault), review denied (Minn. May 29, 2001).

            A present sense impression is admissible if the witness’s out-of-court statement relates an event or condition while the witness perceived that event or condition.  Minn. R. Evid. 801(d)(1)(D).  Statements that a victim makes during an assault about the assault are admissible as present sense impressions.  See State v. Taylor, 650 N.W.2d 190, 196, 205 (Minn. 2002) (finding assault victim’s present sense impressions admissible where victim’s statements during assault were captured by 911 recording).

            Even if an out-of-court statement is hearsay, it may qualify as an exception to the rules excluding hearsay.  See Minn. R. Evid. 803, 804.  Under the excited-utterance exception, for example, when a person makes an out-of-court statement about a startling event or condition while under the stress of that event or condition, that statement is admissible regardless of whether the person is available as a witness.  Minn. R. Evid. 803(2).  No “strict temporal guidelines” control whether a person remains under the stress of a startling event.  State v. Martin, 614 N.W.2d 214, 223 (Minn. 2000).  Consequently, the statement of an upset or agitated person who is the victim of violence or has been threatened with violence ordinarily is admissible as an excited utterance.  See State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (statement after receiving threats from perpetrator, time frame not specified); Hogetvedt, 623 N.W.2d at 912 (statement three hours after assault); State v. Gorman, 532 N.W.2d 229, 234 (Minn. App. 1995) (statement given after police appear on the scene, time frame not specified), aff’d, 546 N.W.2d 5 (Minn. 1996).

            Here, Moorhead’s nephew testified that, in the midst of the altercation, Moorhead’s brother said, “Put that knife away,” and “You still got a knife . . . .  I can see it.”  These statements relate what Moorhead’s brother saw while he was making the statements and therefore are admissible as present sense impressions.  Cf. Taylor, 650 N.W.2d at 205.  Alternatively, because the statements also occurred during a heated encounter, they may be admissible as excited utterances.  Cf. Bauer, 598 N.W.2d at 366.

            The police officer testified that Moorhead’s brother told her that Moorhead stabbed him in the abdomen.  This statement is admissible as a statement of identification, made after an argument during which Moorhead’s brother had ample opportunity to identify Moorhead.  See Hogetvedt, 623 N.W.2d at 912.  Because the stabbing was a stressful event and Moorhead’s brother made the statement after police arrived but before receiving medical attention, it is likely that this statement also is admissible as an excited utterance.  See Gorman, 532 N.W.2d at 234.

            As there are several theories by which the out-of-court statements of Moorhead’s brother are admissible, there simply is no basis to conclude that the district court committed an obvious mistake of law that resulted in plain error.  See Crowsbreast, 629 N.W.2d at 437.

            In his pro se supplemental brief, Moorhead raises three additional issues.  He contends that (1) the district court improperly admitted prejudicial evidence; (2) the prosecutor committed prejudicial misconduct; and (3) the cumulative effect of the errors of law was not harmless.  Having considered these issues carefully in light of the applicable legal standards, we conclude that Moorhead’s claims are without merit.