This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Leaha Harper-Jenkins,



Filed November 2, 2004

Affirmed in part, reversed in part, and remanded
Klaphake, Judge


Cass County District Court

File No. K7-02-1237


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484-3000 (for respondent)


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


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Leaha Harper-Jenkins appeals from her conviction for aiding and abetting second-degree intentional murder, arguing that the district court abused its discretion and denied her the constitutional right to present a defense when it ruled that certain hearsay statements were inadmissible.  Appellant also contends that the district court improperly entered judgment on multiple convictions arising out of the same behavioral incident involving the same victim.  Finally, appellant asserts that the district court improperly imposed an upward departure from the presumptive sentence in violation of the standard set forth in Blakely v. Washington, 124 S. Ct. 2531 (2004).

            Because the district court did not abuse its discretion by ruling that the hearsay testimony was inadmissible, we affirm appellant’s conviction for aiding and abetting second-degree intentional murder, but direct the district court to vacate any judgments of conviction beyond this charge.  Because the district court imposed an upward departure from the presumptive sentence without a jury’s findings or admissions by appellant that support a departure, we reverse appellant’s sentence and remand for sentencing consistent with Blakely.


            1.         Hearsay Evidence

            The right to present witnesses is constitutionally protected; nevertheless, the district court may enforce “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.”  State v. Richards, 495 N.W.2d 187, 195 (Minn. 1992) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973)).  Even where a violation of a constitutional right is alleged, this court reviews the district court’s evidentiary rulings under an abuse of discretion standard.  State v. Jackson, 655 N.W.2d 828, 832 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). 

            “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Minn. R. Evid. 801(c).  Use of hearsay statements raises issues of reliability, due process, and denial of confrontation or cross-examination.  Jackson, 655 N.W.2d at 832.   When testimony involves hearsay within hearsay, as here, each hearsay statement must be admissible under an exception to the hearsay rule.  Minn. R. Evid. 805; State v. Martin, 614 N.W.2d 214, 223 (Minn. 2000). 

            Appellant sought to introduce inculpatory statements made by her co-defendant, Kenneth Conger, to his cousin, Stephanie Day.  Because both Conger and Day refused to testify to the potentially incriminatory statements, appellant sought to present the statements through the testimony of the investigating officer, to whom Day had repeated Conger’s statements.  The district court ruled that although Conger’s statements to Day would be admissible as excited utterances, Day’s statements to the officer were inadmissible because they were not clearly against her penal interests.  See Minn. R. Evid. 803(2) (excited utterance exception), 804(b)(3) (exception for statement against interest). 

            A statement against penal interest is one that exposes the declarant to criminal liability, such that the declarant would not have made it unless it was true.  Jackson, 655 N.W.2d at 834.  Generally, other evidence must corroborate such statements because “‘hearsay statements tending to exculpate the accused must be regarded with suspicion.’”  State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990) (quoting State v. Higginbotham, 298 Minn. 1, 4-5, 212 N.W.2d 881, 883 (1973)).  “Whether a reasonable person in the declarant’s position would not have made the statement unless believing it to be true is determined in light of the surrounding circumstances.”  State v. Hooper, 620 N.W.2d 31, 38 (Minn. 2000) (quotation omitted).   

            Appellant argues that Day exposed herself to criminal liability as an accessory to murder because she transported Conger away from the crime location.  Conger did not make the disputed statements, however, until after they were on the road or until after Day stopped for gas and discovered blood on her car.  At that point, Day refused to drive Conger any further.  Minn. R. Evid. 804(b)(3) “requires more than possible criminal sanctions from a statement; the statement must have so far tended to subject the declarant to criminal liability that a reasonable person would not have made the statement unless believing it to be true.”  State v. Ashby, 567 N.W.2d 21, 26 (Minn. 1997) (quotation omitted).  Under these circumstances, it is unlikely that Day would be criminally charged, and the statements are not clearly against her penal interest.

            The district court’s refusal to permit the hearsay testimony is supported by the record and is not an abuse of discretion.

            2.         Multiple Judgments of Conviction

            Under Minn. Stat. § 609.04, subd. 1 (2002), a defendant may be convicted of the crime charged or an included offense, but not both.  This has been interpreted to mean that only one judgment of conviction can be entered on offenses arising out of the same facts against the same victim.  State v. Pippitt, 645 N.W.2d 87, 96 (Minn. 2002). 

            The district court file here contains three judgments of conviction, but only one sentence, for intentional second-degree murder.  From the record before us, judgments were entered on the other two convictions.  If that is the case, we direct the district court to vacate those two judgments of conviction.

            3.         Sentencing

            Appellant argues that the district court’s upward departure from the presumptive sentence was improper under the standard articulated by the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004). 

            First, we agree that appellant has not forfeited her right to raise this issue on appeal.  The Minnesota Supreme Court has stated that new rules of federal constitutional procedure apply to any case pending on direct review when the new rule is announced.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  Because this matter was pending on direct appeal when the Supreme Court’s decision in Blakely was issued, the new rule applies here and appellant may properly raise this issue.

            In Blakely, the United States Supreme Court affirmed and expanded its holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), which stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  In Blakely, the Supreme Court stated:

Our precedents make clear, however, that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.  When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority.


Blakely, 124 S. Ct. at 2537 (quotations & citations omitted). 

            This court has recently concluded that “a judge who imposes an upward durational departure [from the Minnesota Sentencing Guidelines presumptive sentence] must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.”  State v. Conger, ___ N.W.2d ___, ___, 2004 WL 2340067, at *4 (Minn. App. Oct. 12, 2004).  This means that the judge’s reasons for departure must be based on facts found by a jury or admitted to by the defendant.  Id. 

            We therefore reverse appellant’s sentence and remand for sentencing in accordance with Blakely.

            Affirmed in part, reversed in part, and remanded.