This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed July 19, 2005
Ramsey County District Court
File No. K8-03-1623
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
This appeal requires that we address the admissibility of testimony by medical personnel of a victim’s statements implicating appellant. Because we conclude, contrary to appellant’s assertion, that the statements do not constitute hearsay, we affirm. We find no merit in appellant’s additional arguments that the district court erred in instructing the jury on reasonable doubt and that the evidence was insufficient to support the conviction.
After appellant left and D.A.C. went to his classroom, the principal spoke with the physical education teacher and the school nurse. The school nurse did not remember D.A.C. coming to her with an injury the day before, nor did she have a record of him visiting the nurse’s office that day. The physical education teacher said that no injuries occurred during gym class on February 10.
After the principal spoke with the school nurse and the physical education teacher, she and the school nurse spoke to D.A.C. in the nurse’s office. The nurse met with D.A.C. alone and asked him if the marks were on his face when he got home from school the day before; he said, “No.” She asked D.A.C. how he got hurt, and he said that his dad hit him.
D.A.C. was brought to Children’s Hospital, where he was seen in the emergency room and at the hospital’s Midwest Children’s Resource Center, which specializes in diagnosing and treating sexual and physical abuse of children. A nurse specializing in assessing child abuse examined D.A.C. When she asked him why he was at the hospital, he pointed to the injuries on his face. She then asked him how it happened, and he said he was hit, indicating that it was with a closed fist. When the nurse asked D.A.C. who hit him, he said his “dad.”
At trial, both nurses testified about D.A.C.’s statements that his dad hit him. Appellant testified that D.A.C. told him that he fell while playing basketball. He denied hitting his son and breaking his tooth on February 10, 2003. D.A.C. also testified at trial. He remembered his mouth getting hurt, and he remembered the broken tooth, swollen lip, and bruised chin. He also remembered seeing the school nurse, talking to her about his mouth, and telling her what happened to his mouth, but he would not respond to questions about what he told her. D.A.C. did not remember seeing or talking to the hospital nurse, and he would not say what he told the people at the hospital about what happened to his mouth. He also denied that his dad hit him.
1. Out-of-Court Statements
Appellant asserted to the district court and repeats on appeal that the nurses’ testimony regarding D.A.C.’s statements do not come within the medical-diagnosis exception to hearsay under Minn. R. Evid. 803(4). Citing Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999), and United States v. Sumner, 204 F.3d 1182 (8th Cir. 2000), appellant bases his argument on the proposition that statements made by child-abuse victims to medical personnel may only come within the medical-diagnosis exception if the medical professional explains the purpose of the interview and if the victim manifests an understanding that truthful information is needed for medical diagnosis purposes. This proof that the victim understands the need for truthful information or that the information is for a medical diagnosis shows the trustworthiness of the out-of-court statement, which is to say a lack of motivation to fabricate. See Sumner, 204 F.3d at 1185 (noting that a child’s understanding of the role of the medical health professional in trying to help or heal the child “triggers the motivation to be truthful”).
The Minnesota Supreme Court has
referred to Eighth Circuit authority for the proposition that a child-abuse
victim’s statements identifying the perpetrator are admissible “only if
the evidence suggests that the child knew she was speaking to medical personnel
and that it was important she tell the truth.” State
v. Salazar, 504 N.W.2d 774, 777 (
Respondent contends that according to rule 803(4), the sure knowledge of the victim that he was dealing with medical authorities was sufficient to establish his knowledge that his truthfulness was necessary for his correct diagnosis and treatment.
Although we have
weighed the arguments of the parties, we find more compelling another basis for
a decision affirming the district court.
Appellate courts have a responsibility “to decide cases in accordance
with law, and that responsibility is not to be diluted” by an oversight of
counsel. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (
Because D.A.C. testified and was subject to cross-examination, his statements concerning the identity of the person who hit him do not constitute hearsay under the governing evidence rule.
A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification.
Addressing D.A.C.’s statements to the nurses in this case, the district court specifically stated that, “there was no motive on the part of [D.A.C.] to fabricate any such testimony.” Contrary to appellant’s assertions, the court’s application of the medical-diagnosis exception to the hearsay rule required attention to reliability not significantly different from that required for Minn. R. Evid. 801(d)(1)(C).
In addition to the absence of a motive to fabricate, the reliability in rule 801(d)(1)(C) may also refer to the witness’s opportunity to see or know who he is identifying. Compare State v. Henderson, 620 N.W.2d 688, 698-99 (Minn. 2001) (noting that the district court did not err by excluding a witness’s identification statement when the district court found the statements unreliable because the declarant was unable to “[get] a good look” at the defendant); with Sparks v. United States, 755 A.2d 394, 400 (D.C. 2000) (noting that victim’s identification was reliable because of the victim’s lifelong relationship with the defendant). Here, undisputed evidence established what is impliedly assumed in the district court’s determination, that D.A.C. knew appellant and knew who had hit him. Because he had the opportunity to see and know who he was identifying and because the district court further found that he had no reason to fabricate his statements to the nurses, the reliability requirement of rule 801(d)(1)(C) is met.
In State v. Hogetvedt, 623 N.W.2d 909,
913-14 (Minn. App. 2001), review denied
(Minn. May 29, 2001), this court determined that a victim’s videotaped
statement made to a police officer the morning after she was assaulted and
identifying the person who attacked her was not hearsay under rule
establishes that the rule, in its reference to “identification of a person made
after perceiving the person,” extends not only to initially clarifying a
person’s identity but also to a person’s later recollection of the
perpetrator. See id.;
2. Other Issues
Appellant argues that the district court’s instructions to the jury defining “proof beyond a reasonable doubt” diluted respondent’s burden of proof and constituted reversible error. He argues that the district court overemphasized what does not constitute reasonable doubt. Although the district court’s instructions included each of the elements listed in the CRIMJIG instructions, appellant argues that the district court erred in structuring these elements and adding other sentences.
The CRIMJIG definition of proof beyond a reasonable doubt provides:
Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
The district court’s instruction was as follows:
Proof beyond a reasonable doubt does not mean proof
beyond all possibility of doubt. A
reasonable doubt is a doubt based on reason and common sense. It is not a frivolous doubt or one based on
impulse or whim. Proof beyond a
reasonable doubt is a type of proof upon which ordinarily cautious and
reasonable men and women would act in their most important matters and
affairs. The requirement of proof beyond
a reasonable doubt does not, however, mean that the State of
district court’s instructions are accurate descriptions and elaborations of the
reasonable doubt instruction in CRIMJIG 3.03. The instruction does not obscure the meaning
of reasonable doubt under Smith or
Sufficiency of the Evidence
finally argues that the evidence was insufficient to support the jury’s verdict
that he was guilty of felony malicious punishment of a child. When reviewing the sufficiency of the
evidence, this court must determine “whether, given the facts in the record and
the legitimate inferences that can be drawn from those facts, a jury could
reasonably conclude that the defendant was guilty of the offense charged.” Bernhardt
v. State, 684 N.W.2d 465, 476 (
A parent commits felony malicious punishment of a child when that parent, “by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances . . . . [that] results in substantial bodily harm.” Minn. Stat. § 609.377, subds. 1, 5 (2002). Substantial bodily harm means “bodily injury which involves a temporary but substantial disfigurement . . . or which causes a fracture of any bodily member.” Minn. Stat. § 609.02, subd. 7a (2002).
Appellant argues that he was convicted solely on the out-of-court statements made by his son to the school nurse and to the hospital nurse. Without those statements, we agree that the evidence would be insufficient to support a guilty verdict; apart from these statements, nothing directly points to appellant as the cause of his son’s injuries. But appellant also argues that even with the admission of these statements, there is a problem with the sufficiency of the evidence. Appellant asserts that “there was absolutely no evidence to support the proposition that [he] had abused his son.”
To the contrary, the conclusion that appellant caused the injuries to D.A.C. is corroborated by the evidence that the injury did not occur during D.A.C.’s gym class and by the fact that there is no evidence or explanation offered to explain why the child would lie to the nurses. Appellant emphasizes the strength of his family’s denial of his wrongdoing, but weighing the credibility of a witness’s testimony is left to the jury.
D.A.C.’s statements were admissible as non-hearsay statements of prior identification. These statements, along with other evidence, are sufficient to support the jury’s verdict that appellant was guilty of the malicious punishment of D.A.C.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
In addition to Ring, the court cited White v. Illinois, 502 U.S. 346, 356,
112 S. Ct. 736, 743 (1992), for the proposition that statements made for the
purpose of medical diagnosis or treatment where the declarant knows of the need
for truthfulness for correct diagnosis may contain special guarantees of
credibility. And the court cited Idaho v. Wright, 497
 The district court in Hogetvedt found that the victim’s statement was hearsay but was admissible under the residual-hearsay exception of Minn. R. Evid. 803(24). Although the district court did not admit the statement under rule 801(d)(1)(C), this court found that the statement was not hearsay under this rule. Hogetvedt, 623 N.W.2d at 913-14.