This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Luis Esquivel,




Filed January 10, 2006

Crippen, Judge


Watonwan County District Court

File No. K9-03-294



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, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Lamar T. Piper, Watonwan County Attorney, Watonwan County Courthouse, 101 South Seventh Street, St. James, MN  56081 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            This appeal requires that we consider the admissibility of hearsay statements implicating appellant in first-degree criminal sexual conduct.  Because we conclude that the statements had sufficient indicia of trustworthiness to be admitted under the residual hearsay exception in Minn. R. Evid. 803(24), we affirm.  We also find no merit in appellant’s argument that the district court erred when it admitted a transcript of a police interview with appellant, already partly redacted, that contained the questioner’s accusations of deceit.


Twelve-year-old M.S. was away from her home and her mother had no knowledge of her whereabouts from June 8 until June 10, 2003.  The child finally was found by her mother in downtown St. James, Minnesota.  M.S. told her mother that, while away from home, she had had sex with someone known as “Junior” or “Shorty.”  A subsequent pelvic examination revealed that M.S. likely was sexually active. 

            M.S. gave police a physical description of “Junior” or “Shorty” as Hispanic, short, skinny, and 18 years old.  She described where the man lived, and she also said she did not want the officer to do anything to hurt Junior.  Police found appellant Luis Paz Esquivel, who matched M.S.’s description, at the apartment M.S. had described.  M.S. then refused to cooperate or identify a photo of appellant.

Nearly two weeks later, M.S. gave police another statement that detailed appellant’s conduct in the same fashion as before.  On this occasion, when shown a photo lineup, M.S. selected appellant’s photo as the person with whom she had had sex.

            At trial, M.S. denied having sex with appellant, but admitted going to his apartment and spending the night there.  When impeached with her recorded statements to police, M.S. admitted making the statements but said that they were “garbage” and that she had made it up.  Over a defense objection, the district court admitted transcripts of the statements as substantive evidence.  Excerpts of her videotaped statement also were played for the jury.

            Appellant was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), which prohibits engaging in sex with a person younger than 13 years of age.


Evidentiary rulings rest within the sound discretion of the district court and will not be reversed unless they are clearly erroneous.  State v. Byers, 570 N.W.2d 487, 491-92 (Minn. 1997), cert. denied 523 U.S. 1123, 118 S. Ct. 1807 (1998).  An appellant has the burden of establishing that the district court abused its discretion and that appellant was prejudiced as a result.  State v. Plantin, 682 N.W.2d 653, 658 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004)


            The district court admitted M.S.’s statements to police under the residual hearsay exception.  This exception permits admitting the statement of an available witness when the interests of justice and the general purposes of the rules of evidence are best served, the statement has circumstantial guarantees of trustworthiness equivalent to those in the established hearsay exceptions, and the statement is more probative on the point for which it is offered than any other evidence that could be obtained through reasonable efforts.  Minn. R. Evid. 803(24).

The standard for determining whether the district court abused its discretion in admitting evidence under Rule 803(24) is declared in State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  Plantin, 682 N.W.2d at 658.  The statement is admissible when there is no confrontation clause problem, there is no dispute that the declarant made the statement and no dispute about the content of the statement, the trustworthiness of the statement is increased because it was made against the declarant’s penal interest, and the statement is consistent with the other evidence introduced by the state, which points strongly toward the guilt of the accused.  Ortlepp, 363 N.W.2d at 44.  The against-penal-interest factor may be satisfied if the declarant is hostile to the state and supportive of the defendant.  Plantin, 682 N.W.2d at 659 (finding that a hearsay statement made by an assault victim who was trying to reconcile with her defendant boyfriend was against her “relationship” interests).

Appellant maintains that M.S.’s statements should not have been admitted as substantive evidence because there was no physical evidence linking him to the offense and because the statements were not sufficiently trustworthy. 

Appellant does not dispute that M.S.’s statements satisfy the first three Ortlepp factors.  M.S. testified, eliminating any confrontation problems.  She admitted making the prior statements, and their contents are undisputed because they were recorded.  The prior statements were against M.S.’s relationship interests with appellant because she testified that she loved him and did not want him to be hurt.  Contrary to appellant’s argument, review of the record on the fourth factor does not show an abuse of the district court’s discretion when it admitted the statements.  The physician’s assistant who examined M.S. on June 11 testified that it was likely that she was sexually active.  She also testified that M.S. told her she had had sex with an older man.  M.S. testified at trial and admitted telling her mother that she had had sex with appellant while she was away from home.  Finally, the police officer who interviewed M.S. two weeks after the offense testified that M.S. identified appellant in a photo line-up as the person she had sex with.  This and other circumstantial evidence presented by the state is consistent with the recorded statements and adequately implicates appellant.

The overriding consideration in determining whether hearsay may be admitted under a residual exception is whether circumstantial guarantees of trustworthiness surround the making of the statements.  Ortlepp, 363 N.W.2d at 44.  M.S.’s first statement to police was made the day after the incident, enhancing its reliability.  State v. Tate, 682 N.W.2d 169, 177 (Minn. App. 2004) (noting that the fact a statement was made the day after the incident was an additional circumstantial guarantee of trustworthiness), review denied (Minn. Sept. 29, 2004).  M.S.’s second statement was made less than two weeks later, still close in time to the incident.  See State v. Hollander, 590 N.W.2d 341, 346 (Minn. App. 1999) (holding that a sexual abuse victim’s statement made within two months of the incident was close enough in time to enhance reliability).  Moreover, M.S.’s responses during both interviews were not simply “yes” answers to leading questions.  Tate, 682 N.W.2d at 177; cf. State v. Keeton, 589 N.W.2d 85, 90 (Minn. 1998) (finding defendant’s answer of “yes” to all of his attorney’s leading questions exhibited an inherent lack of honesty).  Although the interviewer asked leading questions, M.S. did not always respond affirmatively and sometimes volunteered information.  Hollander, 590 N.W.2d at 346 (noting that a hearsay statement was deemed trustworthy in part because the child victim did not agree with everything the interviewer asked).  M.S. also provided detail in her statements, such as describing the location of the apartment and consistently indicating that appellant had removed her clothes and that they had used a condom.  Finally, M.S. had no apparent motive to fabricate the story.  Id.; State v. Edwards, 485 N.W.2d 911, 916 (Minn. 1992) (noting that the fact that victim had no motive to fabricate added reliability to the hearsay statements).  On the contrary, M.S. resisted police action and asked the police not to do anything to hurt appellant. 

Because M.S.’s statements were made close in time to the incident, reflect no motive to fabricate, and have other indicia of reliability, the district court did not abuse its discretion when it determined that the statements were sufficiently trustworthy to be admitted under Minn. R. Evid. 803(24).

            Appellant argues that M.S.’s statements should be considered untrustworthy because she was afraid when she gave her first statement to police, because her statements were not subject to cross-examination when she gave them, and because she recanted.  See State v. Aubid, 591 N.W.2d 472, 479 (Minn. 1999) (“That a statement was made under oath and subject to cross-examination can be important in determining whether a statement carries sufficient guarantees of trustworthiness, but these factors are not determinative.”).  Although these factors require consideration, Aubid also indicates that a test for determining whether statements are trustworthy should be flexible and unmechanical, not as simple as appellant suggests.  Id. at 479 (citing Idaho v. Wright, 497 U.S. 805, 822, 110 S. Ct. 3139, 3150 (1990)).  Appellant also argues that M.S.’s initial police statement was not trustworthy because while away from home, she did not take her medications to control depression and attention deficit disorder.  Although this could have some impact on a trustworthiness analysis, M.S. gave a substantially similar statement on June 23, when she had apparently resumed her medication.  Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (considering as part of a trustworthiness analysis whether a witness was on drugs at the time the statement was made).


            Appellant argues that the district court erred when it failed to sua sponte redact segments of his police interview during which the officer accused appellant of lying.   Although the transcript was already redacted by mutual agreement of the parties at trial, appellant argues that the officer’s statements that he believed appellant to be lying about whether he had recently seen M.S. and about his church attendance should have been redacted sua sponte by the court. 

            When a defendant fails to object to the admission of evidence, our review is under the plain error standard.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The defendant must show error that was plain and that it seriously affected the fairness, integrity, or public reputation of judicial proceedings.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  When we find error to be harmless, we do not reach the question of whether the unobjected-to error merits correction.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored). 

            Failure to sua sponte strike or instruct on evidentiary issues generally is not reversible error.  See, e.g., State v. Williams, 593 N.W.2d 227, 237 (Minn. 1999) (holding that a failure to give limiting instructions on character evidence absent a request is not reversible error), cert. denied 528 U.S. 874, 120 S. Ct. 180 (1999).  Our review of the record establishes that admission of the transcript in the form stipulated to by the parties was harmless.  There are two references in the transcript to appellant lying, and neither relates to whether or not he had sex with M.S.  In addition, the impact of the statements was reduced because they were not in the form of oral testimony.  Finally, had the district court redacted these statements, the jury would still have been presented with evidence that the defendant could have lied; the defendant admitted at trial that he lied under oath at his omnibus hearing about having a twin brother.  Because any error was harmless, we decline to determine whether a plain error occurred.

            Appellant contends that the district court’s failure to redact statements from the interview transcript, considered cumulatively with the admission of M.S.’s hearsay statements to police, rendered his trial unfair.  Because we have found no error in the district court’s admission of M.S.’s statements, there is no accumulation of error.  Appellant is not entitled to a new trial.

Appellant also asserts his right to withdraw an Alford plea leading to his conviction for a fifth-degree controlled substance crime, a claim premised singularly on consequences of this court’s reversal of his conviction for first-degree criminal sexual conduct.  There being no cause for this reversal, we have no occasion to further address the appeal directed to the plea on a controlled substance crime.


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