This opinion will be unpublished and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 January 10, 2006
Watonwan County District Court
File No. K9-03-294
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Crippen, Judge.
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
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
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 (
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.
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.
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
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).
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.
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.
a defendant fails to object to the admission of evidence, our review is under
the plain error standard.
Failure to sua sponte strike
or instruct on evidentiary issues generally is not reversible error. See, e.g., State v.
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.