This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF
State of Minnesota,
Timothy R. Hanson,
Filed July 31,
County District Court
File No. K7-05-3366
Lori Swanson, Attorney General, 1800 Bremer Tower,
445 Minnesota Street,
St. Paul, MN 55101;
Doug Johnson, Washington County Attorney, Michael
Hutchinson, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6,
Stillwater, MN 55082 (for respondent)
John M. Stuart, State Public Defender, Jessica Godes,
Assistant Public Defender, 2221
University Avenue Southeast, Suite 425, Minneapolis,
and decided by Halbrooks,
Presiding Judge; Lansing,
Judge; and Hudson,
U N P U B L I S H E D O P I N I O N
Timothy R. Hanson and Elizabeth Sheridan were involved in a romantic
relationship and lived together for approximately five months before the
relationship ended. Sheridan changed the locks after appellant
moved out, but she hid the spare key in the same location. On May 18, 2005, appellant drove to Sheridan’s neighborhood and parked his car on an adjacent
street so that it was not visible from Sheridan’s
home. Appellant stood on Sheridan’s driveway for
several minutes and then opened the garage door. As it grew dark, a neighbor noticed that
lights were on in the home, but Sheridan
had yet to return. When Sheridan got home, she saw appellant, who
appeared to be under the influence of alcohol, coming out of her home. Nonetheless, she invited him back inside.
Sheridan saw an
empty bottle of liquor on the living room floor, she “went absolutely
hysterical” because appellant’s alcohol consumption had been a reason for their
break-up. She demanded that appellant
leave; but he refused and slapped Sheridan
on the left side of her face. Sheridan pushed appellant
out the door and locked it. She
immediately called 911 on her cell phone and reported that “I came home, my
door was wide open, and he attacked me” by “slapp[ing] me across the
face.” She described the slap as “really
hard.” Sheridan denied needing medical attention,
but as she was crying, she said, “I just need help.” Sheridan
also told the 911 operator that appellant was “freaking out, he’s banging on
the windows . . . [m]y living room windows” and “banging on the door.”
Sheridan remained visibly frightened
when the police arrived at her home. She
told police that appellant had rifled through the house, opening her dresser
drawers and pulling out her clothes and taking seven $20 bills from a desk
drawer. Officer Clausen observed that
all the drawers in the bedroom furniture were open and clothing was on the
floor. When searched upon entering jail,
appellant had seven $20 bills in his pockets.
also told the police that appellant “got mad, turned around and struck her with
his right hand on the left side of her face.”
subsequent written statement to police corroborated these facts. And Officer Clausen, who responded to Sheridan’s 911 call, noticed that the left side of Sheridan’s face was
after the 911 call, Officer Foucault found appellant walking less than a mile
away from Sheridan’s
home. Officer Lindeen arrived shortly
afterward from Sheridan’s
home. Appellant smelled of alcohol and was
weaving slightly as he walked but otherwise seemed normal. Appellant was charged with first-degree
burglary under Minn. Stat. § 609.582, subd. 1(c) (2004); second-degree
burglary under Minn. Stat. § 609.582, subd. 2(a) (2004); domestic assault
with intent to cause fear in another of immediate bodily harm under Minn. Stat.
§ 609.2242, subd. 1(1), (2) (2004); and two counts of harassment and stalking
under Minn. Stat. § 609.749, subd. 2(a)(1), (3) (2004).
days later, Sheridan
went to the Harriet Tubman Alliance and spoke to someone about the
incident. She completed an affidavit in
support of an order for protection (OFP) against appellant that restated the
information that she had told the police.
affidavit also stated that she had tried to lock herself in the bathroom but
that appellant had “pushed his way in.”
The district court granted the OFP.
Sheridan subsequently wrote
a letter to the county attorney and telephoned Officer Clausen to correct what
she then stated were inaccuracies in the police report. She stated that she was “hysterical” upon
seeing appellant intoxicated in her home but that he is otherwise welcome. Because she was “hysterical,” Sheridan stated that she
jumped to the conclusion that appellant had opened her dresser drawers and
threw her clothes on the floor. Instead,
she reported that only the bathroom rugs were in disarray as a result of
appellant. Similarly, she reported that
she found the missing $140 beneath furniture in the living room. She noted that appellant “would never, ever
steal property, nor do I feel he ‘assaulted’ me. He was so intoxicated he was falling over,
and he did bump me as I was hanging onto him.” At trial, Sheridan testified consistently with this later
version of events.
D E C I S I O N
argues that the evidence was insufficient to convict on the first-degree burglary
charge because appellant entered the residence with Sheridan’s
consent and that the state failed to prove beyond a reasonable doubt that he
home with the intent to commit the crime of harassment. The state must prove “beyond a reasonable
doubt all of the essential elements of the crime with which the defendant is
charged.” State v. Ewing, 250 Minn.
436, 442, 84 N.W.2d 904, 909 (1957). 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 a light most favorable to the conviction,” was 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 on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
factfinder has the exclusive function of judging witness credibility and
weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the factfinder’s credibility
determinations. State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). This 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,
addition to time and jurisdictional elements, the elements of first-degree
burglary are (1) the defendant entered or remained within a building without
the consent of the person in lawful possession; (2) “the defendant assaulted a
person within the building or on the building’s appurtenant property”; (3) the
defendant entered the building with the intent to commit the crime of
harassment. 10A Minnesota Practice, CRIMJIG
17.04 (2006). “It is not necessary that
the intended crime actually was completed or attempted, but it is necessary
that the defendant had the intent to commit that crime at the time that the
defendant” either entered or remained in the building. Id. “Whether the defendant intended to commit the
crime must be determined from all the circumstances, including,” the manner and
time of entry or remaining in the building, “the nature of the building and its
contents,” any things the defendant may have had with them, “and all other
evidence in the case.” Id.
requires more than mere admittance into the building by its owner. An owner may limit consent to certain times
and conditions. State v. Larsen,
442 N.W.2d 840, 843 (Minn. App. 1989) (affirming first-degree burglary because appellant
brought a friend whom the owner prohibited from the cabin). Consent may be withdrawn after entry. Minn.
Stat. § 609.581, subd. 4(c) (2004) (defining “[e]nters a building without
consent” to include “to remain within a building without the consent of the
person in lawful possession”).
assault is “[a]n act done with intent to cause fear in another of immediate
bodily harm or death; or . . . [t]he intentional infliction of
or attempt to inflict bodily harm upon another.” Minn.
Stat. § 609.02, subd. 10 (2004).
was convicted of gross-misdemeanor harassment under Minn. Stat. § 609.749
(2004). As the state accurately argues
on appeal, when prosecuting under that statutory section, the state does not
have to prove a defendant’s specific intent.
Stat. § 609.749, subd. 1a.
Sheridan testified that
appellant had been upset with her because she had invited guests, including a
male guest, to her house the preceding weekend.
Sheridan and appellant had argued about the invitation. She did not want to talk about it then, but
she expected that the issue would come up again. Appellant knew that Sheridan did not want to discuss the
matter. Nonetheless, appellant drove to Sheridan’s home on May 18 and parked his car about 100
yards away, in a location that Officer Foucault testified was not visible from Sheridan’s home.
neighbor, Alexander Holt, testified that he saw appellant standing outside Sheridan’s home that
evening. Holt knew that Sheridan was not home because, after
appellant opened the garage, Holt saw that it was empty. Similarly, lights were on inside the house
although there was no indication that Sheridan herself was home. Moreover, appellant walked to the end of the
driveway, peered left and right as if “expecting someone to come home.”
established ground rules that appellant visit her only when he was sober. That night, he was not. The presence of alcohol limited Sheridan’s consent to
appellant’s presence in her home. And
appellant refused to leave after Sheridan
asked him to leave.
being struck by appellant, Sheridan
reported that “tonight he smacked me across the face really hard.” Officer Clausen, who responded to the 911
call, saw a red mark on the left side of Sheridan’s
face that he later testified was consistent with being slapped from the right
hand of a facing aggressor. When Sheridan subsequently
sought to correct the police report, she stated that appellant bumped her as he
tripped on a coffee table. Sheridan said then that
appellant was “very intoxicated.” But Officers
Lindeen and Clausen testified that they first saw appellant shortly after the
911 call and that he had only a slightly weaving gait. Viewing the verdict in the most favorable
light, there is sufficient evidence in the record for the jury to have
convicted appellant of first-degree burglary and gross-misdemeanor harassment.
After failing to object at trial,
appellant now argues that the district court committed plain error by allowing
the prosecutor to call Sheridan
as a witness for the sole purpose of impeachment. “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
a defendant fails to object to the admission of evidence, our review is for
plain error. Minn.
R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error standard requires that the
defendant show: (1) error; (2) that was
plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686
(citing Griller, 583 N.W.2d at 740). “An error is plain if it was clear or
obvious.” Id. at 688 (quotations omitted). “An error affects substantial rights if the
error is prejudicial—that is, if there is a reasonable likelihood that the
error substantially affected the verdict.”
Id. “If those three prongs are met, we may
correct the error only if it seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.”
at 686 (quotation omitted).
prosecution may not seek to admit prior inconsistent statements that are
inadmissible hearsay through impeachment of its own witness. State v. Dexter, 269 N.W.2d 721, 721 (Minn. 1978). “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Minn.
R. Evid. 801(c).
are four statements that Sheridan
made that are at issue here: (1) the 911
call; (2) her oral statements to Officer Clausen; (3) her handwritten statement
to Officer Clausen; and (4) her affidavit in support of the OFP. All four statements are consistent in their
description of appellant’s conduct. But Sheridan retracted that
account of the incident prior to trial by contacting the county attorney and Officer
Clausen approximately two weeks later to advise them that the police report
contained inaccuracies. At that time, Sheridan stated that
appellant had not slapped her, come by her house at night ringing her doorbell,
repeatedly called her in an effort to get back together, taken her money, or
rummaged through her bedroom dresser on the night of the incident.
statements in the 911 call and to responding police officers are inadmissible hearsay. But prior witness statements are not hearsay
[t]he declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement, and
the statement is . . . a statement describing or explaining an event
or condition made while the declarant was perceiving the event or condition or
Minn. R. Evid. 801(d)(1)(D). Similarly, exceptions to the hearsay prohibition
include an excited utterance, which is “[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Minn. R. Evid.
trial, the prosecution played a recording of the 911 call that Sheridan made. On the tape, Sheridan was crying when reporting that
appellant had hit her and was then pounding on the windows of her home to get back
in. Sheridan’s emotional state indicated that she
was under the stress of a startling event when she was reporting it. Therefore, we conclude that the 911 recording
was admissible as an excited utterance.
also disputes the admissibility of Sheridan’s oral
statements to the officers who arrived while Sheridan was on the phone to the 911
operator. But those statements are fairly
characterized as descriptions or explanations of an event made while Sheridan was perceiving
the event or immediately thereafter. The
officer who interviewed Sheridan
described her as “scared.” As a result, we conclude that those statements were also
admissible as excited utterances.
a third matter, appellant argues that Sheridan’s
written statement to the police is inadmissible hearsay. Sheridan
wrote the statement later on the day of the incident, when she appeared to be calm. The state asserts that this statement is
admissible under Minn. R. Evid. 803(24). Hearsay evidence may be admitted if
[a] statement not specifically covered
by any of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the statement
is offered as evidence of a material fact; (B) the statement is more probative
on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the general purposes
of these rules and the interests of justice will best be served by admission of
the statement into evidence.
Minn. R. Evid. 803(24). In evaluating whether this catchall exception
to the hearsay rule is appropriate, Minnesota appellate courts have relied on
four factors: (1) whether “there is no confrontation problem presented by the
admission of the statement as substantive evidence, since [the witness]
testified, admitted making the prior statement, and was available for
cross-examination by defense counsel”; (2) whether “there [is] no real dispute
over whether [the witness] made it or over what it contained”; (3) whether “the
statement was against [the witness’] penal interest, a fact that increases its
reliability”; and (4) whether “the statement was consistent with all the other
evidence the state introduced.” State
v. Ortlepp, 363 N.W.2d 39, 44 (Minn.
Sheridan admitted writing the statement and
testified about it; appellant had the opportunity to cross-examine Sheridan about it. Second, Sheridan’s
authentication of the document eliminates any dispute as to whether Sheridan made the
statement. Third, although no penal
interests are implicated here, Sheridan’s
written statement is consistent with the other evidence provided by the
state. Therefore, it could be admitted
under the catchall exception.
appellant claims that the affidavit that Sheridan
prepared in support of the OFP is inadmissible hearsay. In requesting an OFP, “[a] petition for
relief shall allege the existence of domestic abuse, and shall be accompanied
by an affidavit made under oath stating the specific facts and circumstances
from which relief is sought.” Minn. Stat.
§ 518B.01, subd. 4(b) (2004).
prior inconsistent 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 . . . inconsistent with the
declarant’s testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding . . . .” Minn.
R. Evid. 801(d)(1)(A). Here, Sheridan testified at
trial with opportunity for cross-examination.
The affidavit was inconsistent with Sheridan’s trial testimony. As the affidavit is a prior inconsistent
statement, given under oath, to which Sheridan
was available for cross examination, it is admissible as nonhearsay. We conclude that the district court acted
within its discretion in its admission of these statements.