This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





David Lawrence Eichholz,



Filed July 18, 2006


Halbrooks, Judge



Hennepin County District Court

File No. 04019476



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


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)


Glenn P. Bruder, Mitchell, Bruder & Johnson, 4005 West 65th Street, Suite 110, Edina, MN 55435 (for appellant)




            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant David Lawrence Eichholz challenges his convictions of third- and fourth-degree criminal sexual conduct and attempted third-degree criminal sexual conduct, arguing that (1) the district court improperly admitted the hearsay statements of an incompetent accuser, (2) the district court improperly allowed certain testimony and documentary evidence, and (3) there was insufficient evidence to support the convictions.  Because the district court did not err in admitting the challenged statements or allowing the challenged testimony and because the record contains sufficient evidence to support the convictions, we affirm.


            Appellant and his wife are the parents of three adult daughters, each of whom is mentally disabled.  With an IQ between 18-36, daughter DME functions at a 2- to 3-year-old child’s level.  She is capable of clearly communicating her needs and desires and has what has been characterized as “a large vocabulary.”  At the time of the trial, DME and her older sister lived in group homes, while DME’s younger sister lived with appellant and his wife. 

            On December 24, 2003, DME went to stay at her parents’ home for the Christmas holiday.  She was scheduled to be picked up by group-home staff on December 27, although appellant and his wife understood the return time to be flexible.  Appellant and his wife instead returned appellant to the group home on December 26; DME was agitated and refused to hug and kiss her parents good-bye, although she usually did so.  Minutes after appellant and his wife left, Melanie Rannow, a staff member at the home, checked to make sure that DME’s medications had been returned.  As she did so, DME flipped her head toward the front door, a sign of agitation.  To calm DME, Rannow asked her about her Christmas gifts.  Instead of responding to the questions, DME flipped her head, looked at the front door, and said, “Stick it in my mouth, stick it in my mouth.”  When Rannow asked, “What?”  DME replied, “He stick it in my mouth, stick, stick it in my mouth.” 

            Acting pursuant to a directive issued earlier that year that had noted a “question of possible sexual abuse” of DME and that instructed staff to bring DME for examination if she exhibited any sexual behaviors, Rannow took DME to Hennepin County Medical Center (HCMC).  Rannow had DME change her underclothes before they left, and Rannow placed the undergarments that DME had been wearing in a bag. 

            At HCMC, DME was examined by Claudia Nelimark, a registered nurse for Sexual Assault Resource Services (SARS), who is trained to perform sexual-assault examinations.  Nelimark had never before performed a sexual-assault exam on an individual who is as severely mentally disabled as DME.  Prior to the examination, DME’s demeanor was “cheerful and smiley.”  But during the examination, when Nelimark asked DME if she had “had sex,” DME became agitated and replied, “Stick it, stick it, the toilet, it hurt” as she gestured toward and touched her genital area. 

            From the record, it appears that DME did not indicate, and Nelimark was unable to elicit, to whom or what DME was referring when she referred to “it” in the context of “stick it.”  The record does indicate that DME has previously “referred to her vagina as the toilet” and that when Nelimark pointed toward her own genital area and asked DME “What is this area?” DME replied, “Toilet, it’s the toilet, it hurt, stick it.”

            Nelimark was unable to conduct a pelvic examination of DME, but did get other samples for DNA testing.  Those samples and DME’s underwear were part of a sexual-assault kit submitted to the Minnesota Bureau of Criminal Apprehension (BCA) for testing.  Forensic scientist Jacquelyn Kuriger examined the underwear that DME was wearing when her parents returned her to the group home on December 26.  The underwear tested positive in initial semen-screening tests, but a subsequent test did not show the presence of human seminal protein.  Kuriger cut a two-square millimeter sample from DME’s underwear and created a microscopic slide, which she determined contained a single sperm head.  That finding was confirmed by another scientist at the BCA.  DNA testing revealed that the sperm found on DME’s underwear matched appellant’s DNA sample. 

            Appellant was charged with third- and fourth-degree criminal sexual conduct and attempted third-degree criminal sexual conduct.  Before trial, appellant unsuccessfully challenged the use of DME’s statements to Rannow and Nelimark, arguing that they were unreliable and that their admission violated his rights under the Confrontation Clause.  During trial, appellant questioned the reliability of the DNA-testing results and unsuccessfully challenged the district court’s ruling to admit certain testimony regarding his sexual relationship with his wife and the circumstances leading to DME’s sexual-assault examination.  The jury convicted appellant of third- and fourth-degree criminal sexual conduct and attempted third-degree criminal sexual conduct.  This appeal follows.



            Appellant contends that the district court erred in admitting DME’s out-of-court statements to Rannow and Nelimark, arguing alternatively that the admission of the statements violated his right to confrontation and that the statements were inherently unreliable.  DME did not testify at trial because of her incompetence. 

            “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 appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).


            The Sixth Amendment to the United States Constitution guarantees a criminal defendant’s right “to be confronted with the witnesses against him.”  But in Crawford v. Washington, the Supreme Court noted that “not all hearsay implicates the Sixth Amendment’s core concerns” and clarified the amendment’s application to testimonial statements.  541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004).  Under Crawford,“when a witness is unavailable, testimonial statements made by the witness are inadmissible at the defendant’s trial unless the defendant had an opportunity to cross-examine the witness.”  State v. Scacchetti, 711 N.W.2d 508, 513 (Minn. 2006) (citing Crawford, 541 U.S. at 51-54, 124 S. Ct. at 1364).  

            Appellant argues that DME’s statements to Rannow and Nelimark were testimonial and therefore should have been excluded under Crawford.  Neither the Supreme Court, the Minnesota Supreme Court, nor this court has set forth a complete definition of “testimonial.”  The Supreme Court has outlined several classes of statements that are testimonial, including

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[;] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[; and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.


Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364. 

            The Minnesota Supreme Court has recently decided two cases that, like this case, involve the admission of out-of-court statements concerning sexual abuse.  See Scacchetti, 711 N.W.2d at 508; see also State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006).  In those cases, the supreme court held that out-of-court statements made by an incompetent child witness to a child-protection worker and to a nurse practitioner were not testimonial and that their admission did not offend the Confrontation Clause.  Scacchetti, 711 N.W.2d at 514-15; Bobadilla, 709 N.W.2d at 256.

            Bobadilla involved a three-year-old victim of sexual abuse who made statements concerning the abuse to a county child-protection worker in the presence of a law-enforcement officer.  709 N.W.2d at 247.  The child was incompetent to testify at trial, and the statements were admitted through a videotape of the interview and the testimony of his mother and the child-protection worker.  Id. at 248.  The supreme court concluded that the statements were not testimonial because the child-protection worker conducted the interview for the health and welfare of the victim—not to preserve evidence for trial—and because the child was incapable of acting to produce evidence for trial. 255-56.  The supreme court noted that, even if the interview was partly designed “to produce a statement for use at a future trial, such a purpose was at best incidental to the main purpose:  assessing and responding to imminent risks to [the child’s] health and welfare.”  Id. at 255.       

            Scacchetti involved a three-and-one-half-year-old child who was examined for possible physical and sexual abuse by medical personnel from the Midwest Children’s Resource Center.  711 N.W.2d at 510.  During the examination, the child made statements indicating that the defendant had engaged in sexual contact with her; after the child was found incompetent to testify, the nurse practitioner testified as to what the child told her during the exam.  Id. at 511-12.  As in Bobadilla, the supreme court placed special significance on the intent of the declarant in making the statements and on the purpose of the questioner in asking the questions.  Id. at 515.  Noting that the nurse was not a government agent and that the nurse’s purpose in interviewing the child was to assess her medical condition, the supreme court cited other courts that “have held that statements made by children are not testimonial when taken for medical assessment purposes without the involvement of government actors.”  Id.  The supreme court concluded that the statements were not testimonial. 516.

            Finally, in State v. Krasky, 696 N.W.2d 816, 820 (Minn. App. 2005), review granted (Minn. Aug. 16, 2005),[1] this court held that a seven-year-old victim’s out-of-court statements concerning abuse made to a nurse practitioner were not testimonial.  In Krasky, the child’s examination was conducted under circumstances similar to those in Scacchetti, and there was no evidence that the statements were elicited or made for a prosecutorial purpose.  Id. 

            The case at bar is substantially similar to Scacchetti, Krasky, and Bobadilla.  Here, the statements in question were made to DME’s caregiver and to a SARS nurse.  The government was in no way involved with taking or eliciting the statements.  DME was incompetent to testify at trial, as she functions at the level of a two- to three-year-old child.  There is no evidence that DME is capable of understanding any alleged prosecutorial purpose behind the examination or her statements.  Nor is there any evidence that the statements were elicited for any prosecutorial purpose.  DME was brought to the hospital for a medical exam, conducted in the interest of her health and welfare.  Based on Scacchetti, Krasky, and Bobadilla, we conclude that DME’s statements were not testimonial and that their admission did not offend appellant’s protections under the Confrontation Clause.     

Reliability of DME’s statements

            Pointing to DME’s mental disabilities and her incompetence to testify at trial, appellant also argues that the district court erred by admitting DME’s out-of-court statements because the statements were inherently unreliable.  Appellant asserts that “once the victim was determined to be incompetent, any accusatory statements made by her became inherently unreliable and should have been excluded.”  But such a per se rule has been rejected by Minnesota courts.  See State v. Edwards, 485 N.W.2d 911, 916 (Minn. 1992) (citing Idaho v. Wright, 497 U.S. 805, 825, 110 S. Ct. 3139, 3151-52 (1990)).

            While certain of DME’s functional limitations are clear and undisputed, a close review of the record reveals that appellant misrepresents the evidence in an attempt to support his claim.  While appellant claims that “[t]he unrebutted testimony in this case was that DME had no understanding of time or chronology,” the record contains testimony from one of DME’s caregivers stating that DME can relate events from the recent past and that she does understand concepts like “before dinner.”  Further, Rannow testified that DME did not lie when one would expect her to, that she had always been truthful in Rannow’s experience, and that Rannow did not believe that DME has the capacity to lie.  Appellant’s assertions that “DME was incapable of truthfully relating events” and that “she lacked the fundamental capacity to relate any event” are unsupported by the record.

            Whether DME’s out-of-court statements were sufficiently reliable to be admitted into evidence should “be determined from the totality of the circumstances surrounding the actual making of the statement.”  See Edwards, 485 N.W.2d at 915.  Circumstances to be considered include

whether the statements were spontaneous, whether the person talking with the child had a preconceived idea of what the child should say, whether the statements were in response to leading or suggestive questions, whether the child had any apparent motive to fabricate, and whether the statements are the type of statements one would expect a child of that age to fabricate.


State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990), cert. denied, 498 U.S. 1033 (1991).

            Considering all of the factors, there is no indication that the district court abused its discretion in determining DME’s statements to be sufficiently reliable for admission.  The statement to Rannow was spontaneous.  Nelimark’s questioning was not impermissibly leading.  There is no indication in the record that Rannow or Nelimark had any preconceived notion about how DME would answer the questions.  There is no evidence suggesting that DME had a motive to fabricate.  And there is no evidence that a mentally disabled individual functioning as a two- to three-year-old child would fabricate such statements.    


            Appellant argues that the district court erred by allowing testimony regarding his sexual relationship with his wife.  He contends that his relationship with his wife had no relevance to his guilt or innocence and that the state used the testimony to establish that he had a motive to abuse DME.  Appellant contends that the state should have been required to make an offer of proof demonstrating the relevancy of the information before eliciting the testimony.  Respondent argues that appellant’s sexual relationship with his wife was relevant to rebut the most plausible explanation for the presence of semen on the underwear:  recent sexual activity between them. 

            It was established at trial that DME did not wear her own underwear when she stayed at home with her parents; instead she would “borrow” and wear her sisters’ underwear.  DME’s mother testified that she or DME’s sister would typically help DME get dressed, but that she did not know where DME had found the underwear that she was wearing when she returned to the group home on December 26 and that DME had put the underwear on herself during a confusing series of events at the house that morning. 

            “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  Here, appellant has failed to establish either that the testimony was irrelevant or that he was prejudiced by it, particularly in light of the other evidence of appellant’s guilt.

            Appellant also argues that the district court erred by admitting Exhibit 4 and related testimony; Exhibit 4 is a directive from DME’s psychiatrist that states, “There is a question of possible ? sexual abuse when pt. visits family on weekends.  If pts. behavior is sexual in nature (as documented in previous notes) please take pt. to E.R. for eval. of sexual abuse immed. after visit.”  The exhibit was introduced to provide context for the reason that Rannow took DME to the hospital on December 26.  We conclude that it was not error to allow the exhibit, given the very narrow purpose for which it was introduced and used, and note that, in light of the other evidence of appellant’s guilt, any potential error in allowing the exhibit was harmless. 


            Appellant asserts that there was insufficient evidence presented at trial to support the convictions.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            A close review of the record here does not support appellant’s claim.  Appellant’s contentions are based on DME’s mental capacity and on concerns regarding the DNA-testing results.  While conflicting evidence and theories were presented at trial, the evidence was sufficient to permit the jury to conclude beyond a reasonable doubt that appellant is guilty of the charged offenses. 


[1] The supreme court granted review of Krasky partially vacating this court’s opinion and remanding to this court for reconsideration in light of Scacchetti and BobadillaState v. Krasky, No. A04-2011 (Minn. May 16, 2006) (order).