This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




In the Matter of the Welfare of: R. R. H., Child.

Filed October 23, 2007


 Kalitowski, Judge


Watonwan County District Court

File No. JV-06-68


John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant R.R.H.)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


LaMar Piper, Watonwan County Attorney, Kevin Lin, Assistant County Attorney, 710 Second Avenue South, St. James, MN 56081 (for respondent)


            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant R.R.H. challenges his adjudication of delinquency for second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2002), arguing that: (1) the district court committed plain error in admitting certain out-of-court statements and without those statements the evidence was insufficient to support his adjudication; and (2) he received ineffective assistance of counsel because his attorney failed to object to those statements.  We affirm. 



            Appellant argues that the district court’s admission of hearsay testimony requires a reversal of his adjudication of delinquency.  Specifically appellant contends that it was reversible error to allow the mother of the 4-year-old victim to testify that soon after she saw appellant push her son off a couch and cover himself with a blanket her son told her he was “just having sex” with the 15-year-old appellant, and that sex meant “[t]he [appellant’s] finger up the [victim’s] butt.” 

Because appellant did not object to the testimony at trial, plain error is the appropriate standard of review.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “Plain errors or defects affecting substantial rights may be considered by the court . . . on appeal although they were not brought to the attention of the trial court.”  Minn. R. Crim. P. 31.02.  Under the plain error doctrine, appellant “must show that the district court’s failure to sua sponte exclude the testimony at issue constituted (1) an error; (2) that was plain; and (3) that affected [appellant’s] substantial rights.”  State v. Medal-Mendoza, 718 N.W.2d 910, 919 (Minn. 2006). 

An error is plain if it is “clear” or “obvious.”  State v. Burg, 648 N.W.2d 673, 677 (Minn. 2002) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993)).  “[I]f the error contravenes case law, a rule, or a standard of conduct” it is plain.  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).    Hearsay, an out-of-court statement offered for its truth, is generally inadmissible evidence.  Minn. R. Evid. 801(c), 802.   But numerous exceptions dilute the presumption barring admissibility.  See, e.g., Minn. R. Evid. 803.  

Admission of hearsay statements can be plain error if “the statements, by the application of well-settled law, constitute inadmissible hearsay.”  Bernhardt v. State,684 N.W.2d 465, 476 (Minn. 2004).  But not every admission of hearsay is plain error.  See State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006) (holding it was not plain error to admit unobjected-to hearsay testimony given that the state did not have the opportunity to establish that some or all of the statements would have been admissible under a hearsay exception). 

Relevant exceptions to the hearsay rule include the residual hearsay exception and the legislatively-created exception for statements made by sexually abused children. Minn. R. Evid. 803(24),[1] Minn. Stat. § 595.02, subd. 3 (2004).  Under either exception it is error to admit hearsay without sufficient guarantees of credibility.  Id.  The considerations relevant to both hearsay exceptions are “basically the same.”  State v. Hollander, 590 N.W.2d 341, 345-46 (Minn. App. 1999).  And if the statements are admissible pursuant to the residual exception it is unnecessary to consider the legislative exception.  Id. at 346-47. 

Under the residual exception, a hearsay statement is admissible if it has “circumstantial guarantees of trustworthiness[,] . . . is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts . . . and the interest of justice will best be served by admission of the statement into evidence.”  Minn. R. Evid. 803(24).  Supplementing the Rules of Evidence, Minnesota law provides that:

            An out-of-court statement made by a child under the age of ten years . . . alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child . . . by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:


            (a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and


            (b) the child … either:


            (i) testifies at the proceedings; or


            (ii) is unavailable as a witness and there is corroborative evidence of the act; and


. . . . An unavailable witness includes an incompetent witness.                                   

                                                                                                                                                    Minn. Stat. § 595.02, subd. 3 (emphasis added).


            “[T]he focus is not on all the circumstances, including evidence at trial corroborating the child’s statements, but only on those circumstances actually surrounding the making of the statements.”  State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991) (quoting State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990)).  If the child’s statement was spontaneous and made in close proximity to the event described, repeated consistently, with terminology typical of a child of that age, and the child appeared upset and had no motive to fabricate, the statement appears more trustworthy.  In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999).  The statement is less credible if made in response to suggestive or leading questions and the person speaking to the child had preconceived notions about what the child would say.  Id.

             Evaluating the relevant factors, we conclude that guarantees of trustworthiness are present here.  On the day of the incident the victim was at appellant’s apartment.  The victim’s mother returned from an errand and saw appellant push her son off the living room couch and cover himself with a blanket.  The mother saw that the victim’s pants and underwear were down around his knees.   The challenged statement was made while the victim was alone with his mother “two minutes” after the event described.   Although appellant argues the victim made the story up because he called it “a joke,” the victim did not have a motive to lie.  The victim said he loved appellant and appellant loved him.  Moreover, the victim’s mother had no motive to fabricate these statements because she was friends with appellant and his family.  And based on the mother’s account, her questions were not leading or suggestive but were limited to “what?” “why?” and “what do you mean?” 

In addition, other factors support a conclusion that the statement was trustworthy:  (1) although the victim was not upset when he made the statement, he was concerned that his mother not tell anyone else; (2) the four-year-old victim’s description of “having sex” as a “finger up the butt”; (3) the fact that the victim initiated the conversation; and (4) appellant left the apartment before anyone could confront him, even though he was home sick from school.  Although the victim did not repeat any of the accusations in a subsequent interview with health care professionals, we conclude that the statement has “circumstantial guarantees of trustworthiness” because it was supported by the majority of the relevant factors.  Minn. R. Evid. 803(24). 

            In addition, the four-year-old victim’s out-of-court statement was the most probative evidence available to prove the point that appellant was guilty of criminal sexual conduct.  Therefore the statement was properly admissible under either the catch-all exception or the legislative exception.

            We conclude the district court did not err by allowing the mother’s testimony regarding statements made by her four-year-old son.  Because we conclude the admission of the out-of-court statements was not plain error, it is unnecessary to consider if appellant’s substantial rights were affected.  Similarly, we need not address his argument that without those statements the evidence was insufficient to support his adjudication of delinquency. 


Appellant argues that he received ineffective assistance of counsel because his attorney failed to object to the admission of the hearsay statements.  We disagree.

The appellant bears the burden of proving his counsel was ineffective.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  Appellant must show he received representation “below an objective standard of reasonableness.”  Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984); see also Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (adopting the Strickland standard in Minnesota).   Appellant must overcome the strong presumption that his counsel’s performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Courts generally defer to counsel’s judgment regarding trial strategy.  Id.  In addition to demonstrating counsel’s performance was unreasonably deficient, there must exist “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  If the probability is “sufficient to undermine confidence in the outcome” the probability is reasonable.  Id. 

Here, as discussed above, the hearsay was properly admitted.  And because the evidence would have been admitted over objection as an exception to the hearsay rule, appellant has failed to show that his counsel’s failure to object fell below an objective standard of reasonableness or that the failure to object was prejudicial. 


[1] Effective September 1, 2006, Minn. R. Evid. 803(24) and Minn. R. Evid. 804(b)(5) were combined to form Minn. R. Evid. 807.