This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




State of Minnesota,



Randy Lee Morrow,


Filed June 10, 1997


Willis, Judge

Dakota County District Court

File No. K8-96-240

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Appellant was convicted of fourth-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.345, subd. 1(b), 609.346 (1996). He argues that his due process rights were violated when the police destroyed a taped telephone conversation that may have contained exculpatory evidence. We affirm.


In the fall of 1995, appellant Randy Lee Morrow moved to Lakeville, where he was employed delivering newspapers. Deciding that he needed help with his deliveries, Morrow asked around the neighborhood to see if anyone was interested in assisting him. When T.M., the thirteen-year-old son of Morrow's next-door neighbors, expressed an interest, Morrow paid him approximately $60 for helping once with deliveries on his route.

The word quickly spread among neighborhood boys of how easy the job was and how well it paid. Soon, the victim, N.F., his two younger brothers, and two other boys were helping Morrow make deliveries. Because deliveries had to be made in the early morning hours, Morrow often would allow the boys who were going to help in the morning to spend the night in his home. The boys slept in various places, including in Morrow's bed.

The boys spent much of their free time at Morrow's home, playing video games and watching movies. Morrow took them to the Mall of America, took them swimming, took them out to eat, and bought them toys and CDs.

Morrow testified that he is affectionate and likes to hug and kiss. He stated that he showed his affection for these boys by hugging and kissing them and telling them he loved them. He kissed the older boys, including N.F., on the lips. Morrow also gave the boys backrubs. N.F. testified that on two occasions while Morrow was giving him a backrub, he touched N.F.'s buttocks.

On January 23, 1996, Lakeville police detectives Michael Server and Mark Holden arranged to have N.F. telephone Morrow in an effort to obtain admissions from Morrow while the detectives listened in and recorded the conversation. The conversation lasted approximately 20 minutes, and Morrow made no admissions of sexual contact with N.F. During the conversation, Morrow asked N.F. if someone were telling him what questions to ask, and Morrow told N.F. that he should tell the truth. On January 24, 1996, Morrow was arrested. During questioning at the police station, Morrow denied that he ever touched N.F.'s buttocks.

On April 3, 1996, an omnibus hearing was held in Dakota County District Court. Defense counsel and the prosecutor first learned during the hearing that efforts had been made to record the telephone conversation of January 23, 1996. The detectives admitted that the conversation took place and that efforts were made to tape-record it. Holden testified that he thought the tape was preserved and that it had been transcribed. Server, however, stated that the day after making the tape, he taped over it because it was of poor quality and Morrow had made no admissions of guilt.

Morrow moved for dismissal of the charge against him on the ground that possibly exculpatory evidence was deliberately destroyed. The district court found the destruction of the tape to be willful, but denied the motion. The jury convicted Morrow of fourth-degree criminal sexual conduct, and the district court sentenced him to imprisonment for 36 months. This appeal follows.


Under the Due Process Clause of the Fourteenth Amendment, the state has a duty to deliver exculpatory evidence to the accused. State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992). The same is not true for possibly exculpatory evidence. Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664, 667 (Minn. App. 1984). To succeed in a claim that destruction of evidence is reversible error, "a defendant must show that the destruction was intentional and that the exculpatory value of the evidence was apparent and material." State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992).

To be material, the

evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Schmid, 487 N.W.2d at 541 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984)).

Here, it is undisputed that Server intentionally destroyed the tape. He testified that he did so because Morrow made no admissions of guilt during the conversation and the tape was of poor quality. Those are insufficient justifications for destroying the tape. See Schmid, 487 N.W.2d at 542 (holding that the difficulty of transcribing a tape due to a lack of secretarial help was not a good-faith basis for destruction of the tape).

Although the tape was intentionally destroyed, Morrow has not shown that it had any apparent exculpatory value. Morrow was a party to the conversation and, therefore, has first-hand knowledge of what was said. Yet, other than a general statement that exculpatory evidence might have existed on the tape, Morrow points to nothing in the conversation that would constitute exculpatory evidence.

Further, comparable evidence was reasonably available to Morrow. All parties to the taped telephone conversation were available to testify to its substance. Because comparable evidence was reasonably available to Morrow, we cannot say that his due process rights were violated by destruction of the tape. See State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987) (holding that where videotape of defendant's field sobriety test was destroyed, defendant's due process rights were not violated where arresting officer and defendant were both available to testify), review denied (Minn. Apr. 17, 1987).

Morrow argues pro se that (1) his arrest was illegal because the officers had no warrant, (2) the statements he made following his arrest were inadmissible because his arrest was illegal, (3) the transcripts are not true and correct, (4) the evidence was insufficient to support his conviction, (5) witnesses' testimony was coached, (6) Spreigl evidence was improperly used, (7) there was juror misconduct, and (8) there were improprieties during voir dire. Although we find that Morrow's pro se arguments are without merit, we do address his argument regarding the legality of his arrest.

The record shows that Officer Holden and Detective William Forbord went to Morrow's residence on January 24, 1996, to speak with him about the allegations against him. Morrow answered the door. When he did so, he opened the interior door to his home, and, according to Holden, because there was frost on the exterior door, Morrow opened that door as well. The officers identified themselves and stated the purpose of their visit. Morrow responded by saying that he wanted to report harassment by his neighbors. Morrow's mother, who was inside the home, invited the officers in. The officers entered, and, according to the record, Morrow stepped aside to let them in. At no time did Morrow ask the officers to leave.

"The fourth amendment requires police officers to obtain a warrant before entering a residence to make an arrest." State v. Powell, 357 N.W.2d 146, 148 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985). A warrant is not required when valid and voluntary consent to enter is given. Id. Consent may be implied by the circumstances, such as an individual's words, gestures, or conduct. Id.; see State v. Ulm, 326 N.W.2d 159, 162 (Minn. 1982) (holding that valid consent to enter was given where defendant's mother motioned to sheriff and led officers into house); Carlin v. Commissioner of Pub. Safety, 413 N.W.2d 249, 251 (Minn. App. 1987) (holding that valid consent was given where defendant's mother opened door when officer knocked and went upstairs leaving the door open and no one told officer she could not enter home). Further, a nonexigent warrantless arrest initiated at the threshold of a suspect's residence is permissible if the suspect voluntarily opens the door in response to knocking by the police. State v. Howard, 373 N.W.2d 596, 598 (Minn. 1985) (holding that valid consent to enter was given where suspect opened inner door completely and then stepped back as if to make room for officers to enter). By stepping aside after his mother invited the officers into the home, Morrow acquiesced in his mother's invitation, thereby consenting to the officers' entry.

We conclude that because Morrow gave the officers valid and voluntary consent to enter his home, his arrest was valid.