This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Todd Allen Bellanger,


Filed December 24, 2007


Muehlberg, Judge*


 Becker County District Court

File No. K6-06-1715


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


Joseph A. Evans, Becker County Attorney, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Crippen, Judge**; and Muehlberg, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Todd Bellanger, a member of the White Earth Band of Chippewa Indians and a resident on its reservation, challenges his convictions of being a felon in possession of a firearm and second-degree assault.  Because we conclude that the state has jurisdiction to enforce the felon-in-possession statute, Minn. Stat. § 609.165 (2004), on a tribal member living on a reservation, and because we see no abuse of discretion in the district court’s admission of two witnesses’ out-of-court statements, we affirm.



.           In August 2005, appellant called 911 for assistance in removing some intoxicated visitors from his home.  His girlfriend’s nephew was among these visitors, and appellant had threatened him with a rifle before calling 911.  The nephew left shortly before the sheriff’s deputy arrived, and appellant left shortly afterwards.

            After appellant left, his girlfriend showed the deputy a rifle and told him that appellant had threatened her nephew with it, but she refused to give a taped statement.  The deputy then went to find her nephew, who gave a taped statement corroborating the account of appellant’s girlfriend.

            Appellant was charged with possession of a firearm by a felon and second-degree assault.  He moved to dismiss the firearm-possession charge for lack of subject-matter jurisdiction, and his motion was denied.   He later moved to exclude the deputy’s hearsay evidence of the statements of appellant’s girlfriend and her nephew, and that motion was also denied.  A jury found appellant guilty on both charges.

 He challenges his convictions, arguing that the state lacked jurisdiction to enforce Minn. Stat. § 609.165 (2004) (prohibiting felons from possessing firearms) on a tribal member on a reservation and that the district court abused its discretion in admitting hearsay evidence of statements made by his girlfriend and her nephew.


1.         Jurisdiction

            This court reviews de novo whether the state has authority to enforce a statute against a member of an Indian tribe on a reservation.  State v. Jones, 729 N.W.2d 1, 4 (Minn. 2007).

            Jones holds that the state has authority to enforce Minn. Stat. § 243.166, subds. 3(b), 4(e), 5 (2002) (requiring a person convicted of kidnapping to notify authorities of a change of address and to return address verification forms) against a member of an Indian tribe on a reservation.   Id. at 12; see also State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (holding that the state has authority to enforce the prohibition on driving after cancellation of license as inimical to public safety against a member of an Indian tribe on a reservation). 

These holdings are based on Pub. L. 280, which grants the state jurisdiction to enforce criminal/prohibitory statutes, but not civil/regulatory statutes, on tribal members who commit crimes on reservations.  See Jones, 729 N.W. 2d at 5 (applying analysis of Cal. v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-08, 107 S. Ct. 1083, 1087-88 (1987) and State v. R.M.H., 617 N.W.2d 55, 58 (Minn. 2000)); Busse, 644 N.W.2d at 82-83 (same).  We must therefore determine whether Minn. Stat. § 609.165 (2004) is criminal/prohibitory, like the statutes at issue in Jones and Busse, or civil/regulatory.   This determination is in turn based on whether the statute pertains to “broad” conduct or to “narrow” conduct.  See Jones, 729 N.W.2d at 5.  

            Jones and Busse both concluded that their respective statutes pertained to “narrow” conduct.  In Jones, the narrow conduct was “an identified predatory offender residing or moving without maintaining a current address registration with the proper authorities[,]” and the broad conduct was any person “residing at an address or moving to a new address.”  Id. at 6.   In Busse, thenarrow conduct was “driving after cancellation [of driver’s license] as inimical to public safety[,]” and the broad conduct was driving by ordinary licensed drivers.  Busse, 644 N.W.2d at 83.  Analogously, in Minn. Stat.
§ 609.165, the narrow conduct is the possession of firearms by a convicted felon, and the broad conduct is the possession of firearms by citizens in general. 

            When narrow conduct presents “substantially different or heightened public policy concerns,” that conduct is the focus of the court’s analysis. Jones, 729 N.W.2d at 6; Busse, 644 N.W.2d at 88.  The reasoning set forth in Jones and in Busse compels the conclusion that the focus here should be on the narrow conduct. 

            Jones considered legislative history: “Our review of the legislative history of section 243.166 indicates that the public policy concerns associated with persons convicted of specified predatory crimes [such as kidnapping] have grown over time . . . .  The legislature increased the offense grade for a violation of section 243.166 from a gross misdemeanor to a felony . . .”  729 N.W.2d at 7.  Here, a review of the legislative history shows that the legislature changed the ten-years-after-expiration-of-sentence prohibition on convicted felons possessing firearms to a lifetime prohibition.  Compare Minn. Stat.
§ 624.713, subd. 1(b) (2002) with Minn. Stat. § 624.713, subd. 1(b) (Supp. 2003).  As in Jones, a consideration of the legislative history indicates that the public policy concerns about the narrow conduct at issue have increased over time.

            Busse provided four criteria for determining any increase in public policy concerns over the narrow conduct of driving after cancellation of a driver’s license as inimical to public safety: “[1] the criminal sanction imposed, [2] the direct threat to physical harm, [3] the need for the state to be able to enforce cancellations based on a threat to public safety, and [4] the absence of exceptions to the offense of driving after cancellation based on being inimical to public safety.”  644 N.W.2d at 87.  Consideration of the four criteria here leads to the same conclusion.  The criminal sanction imposed is imprisonment of not more than 15 years, a fine of not more than $30,000, or both.  Minn. Stat. § 609.165, subd. 1b(a) (2004).  The direct threat to physical harm by having convicted felons possess firearms is obvious, as is the need for the state to be able to enforce the prohibition on felons’ possession of firearms.  Finally, the only exception is for felons to whom the court has restored the right to possess firearms.  Minn. Stat. § 609.165, subd. 1d (2004).  Thus Busse, like Jones, supports the conclusion that the narrow conduct of felons possessing firearms is the focus of our analysis, and that the statute prohibiting that narrow conduct is criminal/prohibitory rather than civil/regulatory.  See Jones, 729 N.W.2d at 5; Busse, 644 N.W.2d at 82-83.  Under Pub. L. 280, the state had jurisdiction to enforce Minn. Stat. § 609.165 against appellant.


2.         Admission of Hearsay Evidence

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, 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).

            Appellant’s girlfriend and her nephew testified that, on the night of the incident that led to appellant’s arrest, they were too intoxicated to recall anything about the incident or about their conversations with the deputy.  They were therefore unavailable as witnesses under Minn. R. Evid. 804(a)(3) (“‘Unavailability as a witness’ includes situations in which the declarant . . . testifies to a lack of memory of the subject matter of the declarant’s statement”). The district court concluded that their statements to the deputy were admissible under Minn. R. Evid. 803(2) (defining an admissible excited utterance as 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”). “[W]hether [a declarant] was under a sufficient aura of excitement to ensure the trustworthiness of the statement . . . is within the sound discretion of the trial court.”  State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985).  The theory behind Minn. R. Evid. 803(2) is that “the excitement caused by the event eliminates the possibility of conscious fabrication, and insures the trustworthiness of the statement.”  State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986). 

            Here, the startling event was appellant’s threatening of his girlfriend’s nephew with a rifle, since that event would have put the girlfriend and her nephew under the stress of excitement.  The record shows that appellant appeared with the rifle and threatened his girlfriend’s nephew shortly before he called 911 at 1:30 a.m., that the girlfriend’s nephew had left the premises when the deputy arrived at 1:34 a.m., that appellant left soon afterwards, that the deputy heard the girlfriend’s statement shortly after appellant left, and that the deputy arrived at the nephew’s home, a half-mile away, and tape-recorded the nephew’s statement at 2:05 a.m.  The sequence lasted for about 45 minutes; the girlfriend’s statement was made about 15 minutes after she saw appellant threaten her nephew with a gun, and the nephew’s statement was made about a half an hour after appellant threatened him with a gun.  Statements made as much as 90 minutes after an event have been upheld as excited utterances.  See id. at 783.  

            Appellant argues that the statements are not admissible as exceptions to the hearsay rule because they were made in response to police questioning, but he provides no legal support for this argument.[1]  He also argues that the statements were inadmissable because the declarants were under the influence of alcohol.  But the declarants’ testimony on this point was contradicted by the deputy’s testimony.  The deputy testified that he had training and experience in detecting intoxication, and that: (1) appellant’s girlfriend  “had been drinking that evening, but she didn’t seem to be intoxicated to me at that time”; 
(2) her speech was clear; (3) she was not slurring her words; and (4) she could articulate the events of the night in a comprehensible manner.  The deputy further testified that appellant’s girlfriend’s statement was corroborated by that of her nephew, who (1) also had been drinking but was not intoxicated; (2) was able to explain the events of the night in a comprehensible, chronological fashion, without inconsistencies; and (3) provided a taped statement without slurring his words.  The district court did not abuse its discretion in finding the statements trustworthy enough to be admissible as excited utterances. [2]

            The state had jurisdiction to enforce Minn. Stat. § 609.165 against appellant, and the district court did not abuse its discretion in admitting the statements of his girlfriend and her nephew as excited utterances under Minn. R. Evid. 803(2).





* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the Minnesota Court of Appeals, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant’s reliance on State v. Hansen, 312 N.W.2d 96 (Minn. 1981), is misplaced.  In Hansen, the statements were held inadmissible because one declarant had been promised leniency by the police and the other had been promised a reward for making the statements, and therefore, the statements were not trustworthy.  Id. at 101-102.  Hansen is distinguishable because no promises were made here.

[2]The district court also concluded that the statements were admissible under Minn. R. Evid. 804(b)(5) (statement not excluded as hearsay if, inter alia, it has circumstantial guarantees of trustworthiness) (now recodified as part of Minn. R. Evid. 807).  While our affirmance of admissibility under Minn. R. Evid. 803(2) makes it unnecessary for us to address this conclusion, we note that it was adequately supported by the district court’s findings that the statements were against the declarants’ interests, the statements perfectly corroborated each other, and the declarants had no opportunity to fabricate their statements together.