This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Hua Ly,


Filed August 8, 2006


Wright, Judge


Ramsey County District Court

File No. K8-04-4516



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


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


Manuel J. Cervantes, St. Paul City Attorney, Cheri M. Sisk, Assistant City Attorney, 500 City Hall and Court House, 15 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)



            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.


U N P U B L I S H E D  O P I N I O N



            Appellant challenges his conviction of fifth-degree domestic assault, arguing that (1) the victim’s out-of-court statements were admitted in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution and the rules of evidence, (2) the evidence was insufficient to sustain the verdict, and (3) the prosecutor committed prejudicial misconduct.  We affirm.


            On December 3, 2004, during a routine patrol in St. Paul, two police officers heard a woman screaming and then heard a male voice yell, “Shut up, b—” and “I’m going to f—ing hit you.”  After identifying the car from which the noise was emanating, one of the officers approached and opened the car’s door.  Appellant Hua Ly was in the driver’s seat and a woman later identified as Edith Lee was in the passenger’s seat.  Lee, with whom Ly has a child in common, was crying and bleeding from her mouth.

            The officers took Ly into custody.  As they handcuffed Ly, Lee, who was still crying, ran over to them.  She screamed at the officers that Ly “didn’t do this” to her, someone named “Johnny” had hit her.  After Ly was handcuffed and seated in the patrol car, the officers spoke with Lee, who was still distraught.  Lee said that she and Ly had been drinking with friends in an apartment across the street.  She also stated that she was afraid of the “ACK,” the Asian Crypt Killers gang.  An officer then returned to the squad car to speak to Ly, who stated that Lee was “hitting me all over so I punched her in the face.”  When the officer advised Lee of Ly’s statement, she denied that Ly had punched her in the face but stated that he had punched her in the arm on another occasion.  The officers investigated the nearby apartment where Lee and Ly indicated they had been drinking with friends.  But they found no one named Johnny there.

            During an interview at the police station a few hours after his arrest, Ly said that Lee had started a fight with him because she was jealous.  When she began punching him, he pushed her and caused her to fall to the ground.  Ly admitted that his hand may have hit Lee’s face when he pushed her.  Although he named two other individuals who witnessed the encounter, Ly never mentioned anyone named Johnny.

            Ly was charged with fifth-degree domestic assault, a violation of Minn. Stat. § 609.2242, subd. 2 (2004), and obstructing legal process, a violation of Minn. Stat. § 609.50, subd. 1 (2004).  The matter proceeded to a jury trial, during which the officers on the scene testified about their observations and, over Ly’s objection, about the out-of-court statements made by Lee.  Because she could not be located, Lee did not testify at trial.

Ly also did not testify.  But his tape-recorded interview by police was played for the jury.  At Ly’s request, the jurors were instructed on self-defense.  Ly was convicted of the charged offenses, and this appeal followed.


Ly challenges only his conviction of fifth-degree domestic assault.  In doing so, he argues that admission of Lee’s statements to police both violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and was erroneous under the Minnesota Rules of Evidence.  When an evidentiary ruling presents a constitutional issue, we conduct a de novo review.  State v. King, 622 N.W.2d 800, 806 (Minn. 2001).  The district court’s decision to admit evidence pursuant to the Minnesota Rules of Evidence is reviewed for an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). 


The Confrontation Clause of the Sixth Amendment to the United States Constitution prohibits the use in a criminal prosecution of a testimonial out-of-court statement that was not subject to cross-examination if the declarant is not available to testify at trial.  Crawford v. Washington, 541 U.S. 36, ___, 124 S. Ct. 1354, 1365 (2004).  Under Crawford, whether the use of a statement violates the Confrontation Clause turns on the “testimonial” nature of the statement.  Id. at ___, 124 S. Ct. at 1364-65.  If a statement is testimonial, the Confrontation Clause bars the use of the statement against a criminal defendant unless the declarant is available to testify or the defendant has had an opportunity to cross-examine the declarant.  Id. at ___, 124 S. Ct. at 1365.  The United States Supreme Court has defined a testimonial statement to include any statement “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  Id. at ­_­__, 124 S. Ct. at 1364 (quotation omitted).  Certain statements made to a government agent, such as responses to formal police interrogation, are by their nature testimonial.  Id. at ___, 124 S. Ct. at 1364.  But whether statements obtained during on-the-scene police interviews are testimonial must be determined on a case-by-case basis.  See Davis v. Washington, 547 U.S. ___, ___, 126 S. Ct. 2266, ____ (2006) (noting that the character of statements made in response to police questioning outside the context of formal interrogation is not as clear).

  In Davis, the United States Supreme Court compared the testimonial nature of statements made during a 911 call and those made during an on-the-scene interview.  The Davis court determined that a domestic-assault victim’s statements made during a 911 call were not testimonial because the declarant was providing information to enable police to respond to an emergency.  Id. at ___, 126 S. Ct. at ____.  Although the assailant left the scene during the call, the statements were not testimonial because they were made in the present tense and were close in time to the assault.  Id. at ___, 126 S. Ct. at ­­­­____.  But the Davis court determined that a domestic-assault victim’s narrative of past events during an on-the-scene interview was testimonial because the statement “was delivered at some remove in time from the danger” and because she executed an affidavit in order to “establish events that occurred previously.”  Id. at ___, 126 S. Ct. at ____.

The Davis court clarifies that

[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.


Id. at ___, 126 S. Ct. at ____.  Several factors are relevant to determine whether a statement is testimonial.  The demeanor of the declarant and the environment in which questioning occurs are among the relevant factors.  For example, a “frantic” declarant’s statement made in an unsafe environment does not objectively support the conclusion that the statement is testimonial.  Id. at ___, 126 S. Ct. at­­ ____Davis acknowledges that “‘[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’”  Id. at ___, 126 S. Ct. at ____ (quoting Hiibel v. Sixth Jud. Dist. Ct. of Nevada, 542 U.S. 177, 186, 124 S. Ct. 2451, 2458 (2004)).  But when statements constitute “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial.”  Id. at ___, 126 S. Ct. at ____.

Here, three statements were admitted in evidence over Ly’s objection: (1) Lee’s statement that “[Ly] didn’t do this, it was Johnny;” (2) Lee’s statement that she was afraid of the ACK gang; and (3) Lee’s statement that Ly had not punched her in the face but had punched her in the arm on an earlier occasion.  We examine each statement individually because the changing nature of the interaction between a police officer and a declarant may affect whether a statement is testimonial. 

Although the officers initiated the contact on the scene by investigating the screaming coming from the car, Lee’s first statement was unsolicited.  As the officers attempted to arrest Ly, Lee, who was “hysterical,” “extremely distraught,” and crying and shaking, yelled to the officers, “[Ly] didn’t do this, it was Johnny.”  These circumstances do not suggest that the officers were acting to elicit a statement for trial.  The officers, responding to an emergency situation, were not engaged in formal questioning when Lee made her first statement.  In light of Lee’s emotional state and the officers’ need to gain control over “a threatening situation,” Lee’s first statement is not testimonial.

When Lee made her second statement relating her fear of the ACK gang, she was describing her version of events.  But Lee was still distraught, and the officers were still attempting to assess the situation and determine with whom they were dealing—possibly a gang, someone named Johnny, or other individuals in a nearby apartment.  Under Davis, Lee’s second statement also was not testimonial in nature.  Id. at ___, 126 S. Ct. at ____.

Lee’s third statement—that Ly had not hit her in the face but had injured her arm on an earlier occasion—was made after Ly was in custody and had briefly been questioned by police about his version of events.  Lee’s statement was made in response to an officer’s statement that Ly had admitted punching Lee.  Because Lee and Ly were separated and the police were attempting to elicit information from Lee, Lee’s third statement shares certain characteristics with the testimonial statement obtained during the on-the-scene interview in DavisSee id. at ___, 126 S. Ct. at ____ (noting that declarant giving information on the scene in Davis was questioned in a room separate from her husband).  But Lee’s third statement is nevertheless more similar to the frantic 911 call in Davis than to the relatively calm execution of an affidavit that coincidentally took place at the scene of the assault.  Lee’s statement was made only a few minutes after police found her bleeding in the car.  The officers were still attempting to determine who was involved and had not yet attempted to locate the “Johnny” to whom Lee kept referring.  And, unlike the declarant in Davis, Lee was not cooperating with police.   

Because we conclude that, under the circumstances in which they were made, Lee’s three statements were not testimonial, the statements were not admitted in violation of the Confrontation Clause.


We next address whether the district court committed an evidentiary error, as opposed to a constitutional error, when it admitted Lee’s statements.  Evidentiary rulings are within the discretion of the district court and will not be reversed absent a clear abuse of that discretion.  Amos, 658 N.W.2d at 203.  A defendant who claims that the district court erred in admitting evidence has the burden of proving the error and the resulting prejudice.  Id.

The district court admitted Lee’s statements as excited utterances under Minn. R. Evid. 803(2).  Notwithstanding the characterization of the statements in the district court, we examine each statement individually to determine whether it was improperly admitted.  See State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001) (declining to adopt district court’s and parties’ characterization of evidence and determining evidence to be admissible under another rule), review denied (Minn. May 29, 2001).  Our review establishes that Lee’s first and third statements are not hearsay; thus, the excited-utterance exception is inapplicable.  And her second statement is admissible as the declarant’s then-existing state of mind under Minn. R. Evid. 803(3).

Hearsay is an out-of-court statement admitted in evidence to prove the truth of the matter asserted.  Minn. R. Evid. 801.  If the statement is offered for a purpose other than proving the truth of the assertion, it is not hearsay.  Minn. R. Evid. 801, 1989 comm. cmt.  The state’s purpose in offering Lee’s first and third statements was to show her fear of Ly made evident by her state of mind as a victim of a domestic assault.  The prosecutor stated in closing argument that, “the State[] submits that there is no truth in her words.  But there is a real truth behind her words.”  The state then suggested that these statements were evidence that Lee was so afraid of Ly that she invented an exculpatory story about a fictitious “Johnny.”  Offering an out-of-court statement to indirectly or inferentially show the declarant’s state of mind is a permissible nonhearsay use.  State v. Campion, 353 N.W.2d 573, 580 (Minn. App. 1984).

Ly asserts that these statements, if not offered for the truth of the matter asserted, are irrelevant.  See Minn. R. Evid. 402 (excluding irrelevant evidence).  This argument is unavailing.  Indeed, a victim’s state of mind is relevant when, as here, a defendant claims self-defense.  Bernhardt v. State, 684 N.W.2d 465, 474 (Minn. 2004). 

Because Lee’s first and third statements were admissible as nonhearsay and were relevant to show her state of mind, that the district court construed them as excited utterances was harmless error.  See Minn. R. Crim. P. 31.01 (stating that harmless error shall be disregarded).  Although the excited-utterance analysis may have been inapplicable, admission of Lee’s first and third statements was neverthelss proper under the rules of evidence. 

Lee’s statement that she was afraid of the ACK also was admitted in evidence through the police officers’ testimony.  The prosecutor argued in his closing that “[Lee] was deathly afraid.  She mentioned the ACK.”  Thus, the statement, offered to prove the truth of the matter asserted, is hearsay.  Although not an excited utterance, this statement is admissible under Minn. R. Evid. 803(3) as a statement of Lee’s then-existing mental, emotional, or physical condition.  “[H]earsay statements probative of the declarant’s state of mind or emotion are not made inadmissible by the hearsay rule.”  Minn. R. Evid. 803(3), 1989 comm. cmt.  Here, Lee was describing her own fearful emotional state at that moment.  Accordingly, the district court did not abuse its discretion when it admitted this statement into evidence.


Ly next argues that the mostly circumstantial evidence presented was insufficient to support his conviction of fifth-degree domestic assault.  We review a claim of insufficient evidence to determine whether the jury reasonably could find the defendant guilty of the offense, based on the facts in the record and the legitimate inferences that can be drawn from those facts.  State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999).  In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id.  Circumstantial evidence is accorded the same weight as any other evidence “so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).  It is the exclusive province of the jury to determine the credibility and weight of the evidence.  Id.  We 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, reasonably could conclude that the defendant was guilty of the offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Fifth-degree domestic assault is defined as the intentional infliction of bodily harm against a family or household member.  Minn. Stat. § 609.2242, subds. 1, 2 (2004).  A family or household member includes “persons who have a child in common regardless of whether they have been married or have lived together at any time.”  Minn. Stat. § 518B.01, subd. 2(b)(5) (2004).   

            Our review of the trial testimony establishes that police officers heard a male voice threaten to “f—ing hit you” coming from a car in which they found Ly and Lee.  Lee was crying and had fresh blood running from her mouth.  Ly admitted to the officers that he punched Lee in the face because “she was hitting [him] all over.”  And Ly and Lee have a child in common.  From this evidence, combined with Lee’s properly admitted statements blaming “Johnny” and the fact that Ly never mentioned anyone named Johnny, the jury reasonably could conclude, based on direct and circumstantial evidence, that Ly was guilty of fifth-degree domestic assault.



Ly also maintains that the prosecutor impermissibly (1) speculated about events occurring at the time of the offense, and (2) commented on the credibility of witnesses.  Whether prosecutorial misconduct is harmless depends on the seriousness of the misconduct, if any.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  More serious misconduct requires reversal unless it was harmless beyond a reasonable doubt.  Id.  Less serious misconduct requires reversal only when it substantially influenced the verdict.  Id. 

Ly objected to the following statements made by the prosecutor during closing argument:

So why would Edith Lee say Johnny did it? . . .


. . . .


            What is the truth behind that lie?  The truth is that Edith Lee was terrified of the defendant.  That Edith Lee was so afraid that she would not cooperate with the police.  That Edith Lee was so afraid that she was going to identify somebody else because the defendant was right there. . . . Sooner or later she will have to get back with Mr. Ly, down the road.  Think about it.  What might have happened if she had accused Mr. Ly right at the scene in front of him in the presence of the officers.  She was deathly afraid.  She mentioned the ACK.  That is the truth behind her lie.


The record does not support a finding of misconduct.  This aspect of the prosecutor’s closing argument did not fabricate unsupported details.  It simply presented the state’s theory of the case.  Lee also objects to the prosecutor’s statement that, “The defendant didn’t have a chance to get his story straight with Edith Lee.”  But arguing that Ly and Lee were lying when the evidence comprised several contradictory statements and suggesting that Lee was afraid when the evidence established that the police officers found her crying and bleeding does not constitute unsupported speculation or improper comments on the credibility of witnesses.  C.f. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (holding that prosecutor’s repeated characterization of his witnesses as honest and having integrity and of defendant’s testimony as a joke and incredible was improper).

Because Ly has failed to demonstrate any error that entitles him to reversal of his conviction of fifth-degree domestic assault, we affirm.