This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


William Tell, IV,



Filed January 18, 2005

Klaphake, Judge


Stearns County District Court

File No. K3-03-3868


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


Janelle P. Kendall, Stearns County Attorney, Samuel Wertheimer, II, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4701 (for respondent)


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


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant William Tell IV appeals from his conviction for second-degree assault, arguing that the district court abused its discretion when it admitted a statement made by the victim to police shortly after the incident.  The victim later recanted, but the state sought admission of the statement for impeachment purposes and as substantive evidence.  Appellant asserts that the statement was inadmissible hearsay and contained evidence of prior assaults that the district court had not ruled admissible.

            Because the statement was admissible under Minn. R. Evid. 803(24) and Minn. Stat. § 634.20 (2002), we affirm.


            1.         Standard of Review

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that the appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  The reviewing court will not reverse the district court’s admission of evidence of other crimes or prior bad acts unless the district court abused its discretion.  State v. Waino, 611 N.W.2d 575, 578 (Minn. App. 2000).

            Appellant raised two challenges to the district court’s decision to admit the victim’s taped statement to police and a transcript of the audiotape:  (1) the statement was inadmissible hearsay; and (2) the statement contained inadmissible character evidence. 

            2.         Inadmissible Hearsay

            “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).  The victim’s taped statement does not fit within the exceptions to this definition of hearsay listed in Minn. R. Evid. 801(d), because the state offered the audiotape not only to impeach the victim, but also as substantive evidence. The district court ruled that the taped statement was admissible under the catchall hearsay exception, which allows admission of

[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.


Minn. R. Evid. 803(24).

            In State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985), the supreme court stated that rule 803(24) allows “hearsay to be admitted in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803.”  In Ortlepp, the supreme court allowed a statement to be admitted under rule 803(24) because (1) the declarant was present, so no confrontation issue arose; (2) the declarant admitted making the statement; (3) the statement was made against the declarant’s penal interest, increasing its reliability; and (4) the statement was consistent with other evidence presented.  Id. 

            This analysis was confirmed in State v. Soukup, 376 N.W.2d 498 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  There the declarant was the defendant’s son; he told school authorities that his father had struck him, but later recanted.  The statement was not against the child’s penal interest, but this court nevertheless affirmed the use of the prior statement under rule 803(24), stating that “[t]he record in this case shows that the hearsay statements had circumstantial guarantees of trustworthiness.”  Id. at 501.  We noted that the child testified at trial and admitted to making the prior statement, and that the prior statement was consistent with the medical testimony presented at the trial.  Id. 

            Although appellant argues that the statement admitted here is not reliable because it is not against the declarant’s penal interest, this is not the determinative factor.[1]  The victim testified at trial and admitted making the prior statement.  The content of the prior statement was consistent with the medical testimony, with a second prior statement that the victim made under oath when requesting an order for protection, and with the testimony of an independent witness.  The jury was also in a position to assess the victim’s credibility because she testified at trial.  Under these circumstances, the district court did not abuse its discretion by admitting the prior statement under rule 803(24).

            3.         Inadmissible Character Evidence

            Generally, evidence of a person’s character or of other crimes or wrongful acts is not admissible “in order to show action in conformity therewith,” but may be admissible in order to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake; the evidence must be clear and convincing.   Minn. R. Evid. 404(b).  Appellant argues that because the victim’s prior statement alluded to past incidents of domestic assault, the district court abused its discretion by admitting that statement.

            Minn. Stat. § 634.20 (2002) provides an alternative to rule 404(b) for admission of such evidence.  Pursuant to this statute,

[e]vidence of similar conduct by the accused against the victim of domestic abuse . . . is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


Minn. Stat. § 634.20.  In a recent decision, the supreme court stated that evidence presented pursuant to this statute need not meet the heightened standard of clear and convincing evidence required for the admission of character or Spreigl evidence, but need only be more probative than prejudicial.  State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004).  As in this matter, the victim in McCoy made statements to police implicating the defendant, but later sought to recant the statements.  Id. at 156-57.  The state introduced police reports and medical records from a prior assault, but the victim testified at trial that she retained no memory of that assault and denied that it occurred.  Id.  Despite her denials, the evidence was nevertheless found to be admissible.  Id. at 159. 

            The rationale for admission of such evidence is to show the “strained relationship” of the parties.  State v. Copeland, 656 N.W.2d 599, 602 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003).  In that matter, this court alluded to the use of such testimony when a victim has recanted a prior statement.  While the testimony was not admitted under Minn. Stat. § 634.20, because the domestic abuse victim was not the victim in the matter before the court, this court agreed that use of “strained relationship” testimony could establish a witness’s bias for purposes of Minn. R. Evid. 616, by explaining why a victim might change his or her testimony.  Copeland, 656 N.W.2d at 602-03.

            The district court here did not explicitly rule that the statement was admissible pursuant to Minn. Stat. § 634.20, but an examination of the record satisfies us that the victim’s statement comes within the purview of the statute.  The victim’s rather vague statements about prior assaults are not so inherently prejudicial that they outweigh the probative value of the statements.  See Waino, 611 N.W.2d at 579 (Minn. App. 2000) (concluding that an assessment of “[w]hether the probative value of prior bad acts outweighs their prejudicial effect is a matter left to the discretion of the trial court”).

            We therefore conclude that the district court did not abuse its discretion by admitting the victim’s prior statement.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] A problem may arise if the state uses a prior statement for impeachment purposes for the sole purpose of getting it before a jury in the hopes that it will be viewed as substantive evidence. See Ortlepp, 363 N.W.2d at 42-43; State v. Dexter, 269 N.W.2d 721, 722 (Minn. 1978).  Here, however, the statement was offered and admitted for both impeachment purposes and as substantive evidence.