This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Rick David Olson,


Filed August 12, 1997

Affirmed and motion granted

Short, Judge

Otter Tail County District Court

File No. K2961454

Paul D. Baertschi, Paul D. Baertschi, P.A., 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2224 (for appellant)

Hubert H. Humphrey III, Attorney General, Jessica S. McConaughey, Catherine Keane, Special Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Waldemar B. Senyk, Otter Tail County Attorney, Otter Tail County Courthouse, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.


SHORT, Judge

After Rick David Olson assaulted the mother of his child in the apartment where she and the child resided, a jury convicted him of first-degree burglary and fifth-degree assault under Minn. Stat. §§ 609.582, subd. 1(c), and 609.224, subd. 2(a). On appeal, Olson argues: (1) the evidence is insufficient to support his burglary conviction; (2) the trial court abused its discretion in admitting evidence of the victim's out-of-court statements and of Olson's prior domestic abuse of the victim; and (3) his defense counsel provided ineffective assistance at trial. The state filed a motion to strike certain documents found in the appendix to Olson's brief. Because the referenced documents were prepared after trial solely for the purpose of appeal, we grant the state's motion. See Minn. R. Crim. P. 28.02, subd. 8 (providing record on appeal consists of "papers filed in the trial court, the offered exhibits, and the transcript * * * "); State v. Evans, 343 N.W.2d 709, 710-11 (Minn. App. 1984) (holding appellate court shall not review evidence outside of trial record). We affirm Olson's conviction.


When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992) (quoting State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988)). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994). Rulings on evidentiary matters generally rest within the sound discretion of the trial court. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981).


Olson argues the state presented insufficient evidence to show he committed first-degree burglary because he was in lawful possession of the apartment in which he allegedly assaulted the victim. See Minn. Stat. §§ 609.582, subd. 1 (1996) (defining first-degree burglary as entering building without consent and committing crime in building), 609.581, subd. 4(a), (c) (1996) (providing that "entering without consent" means entering or remaining in building without consent of person in lawful possession). However, while Olson contends he possessed a key to the apartment, owned most of the furniture on the premises, and had entered the apartment freely in the past to visit the couple's daughter, the record demonstrates: (1) the apartment lease was in the victim's name only; (2) the victim and the couple's daughter had sole occupancy of the apartment; (3) the victim had terminated her relationship with Olson six months prior to the assault, and Olson had stopped cohabiting with her at that time; (4) Olson resided with his father in Minneapolis, and only occasionally visited the apartment to help care for the couple's daughter or to retrieve personal items; (5) when Olson did travel to Fergus Falls to visit his daughter, he stayed at his sister's house and normally contacted the victim ahead of time to schedule visits; and (6) on the evening in question, the couple's daughter was not in the apartment, and the victim had twice requested that Olson leave the premises. Given these facts, we cannot say Olson was in lawful possession of the apartment. See State v. Evenson, 554 N.W.2d 409, 411 (Minn. App. 1996) (defining "lawful possession" under the burglary statute as "[a]ctual holding or occupancy with or without rightful ownership," with focus on distinct legal right to possess), review denied (Minn. Oct. 29, 1996).

Notwithstanding our finding of no lawful possession, Olson argues as a defense to his burglary charge that he had a license to enter the apartment, and the victim's request that he leave was not sufficient to revoke that license. We disagree. Minnesota's burglary statute provides no express defense on the basis of a license or privilege to enter the premises. See generally Minn. Stat. § 609.582 (1996) (providing no "license or privilege to enter" defense to burglary); cf. Model Penal Code § 221.1(1) (1985) (permitting defense to burglary where "actor is licensed or privileged to enter" premises). We cannot go beyond the clear language of the statute to create such a defense. See Minn. Stat. § 645.16 (1996) (providing where statutory language is free from ambiguity, "the letter of the law shall not be disregarded under the pretext of pursuing the spirit"). Olson's burglary conviction is founded upon sufficient evidence.


Olson also argues the trial court abused its discretion in admitting into evidence the victim's out-of-court statements regarding the assault. We disagree. Under Minn. R. Evid. 803(24), the "residual exception" to the hearsay rule, a trial court may admit a witness's out-of-court statements when the witness testifies at trial, there is witness confrontation, and additional evidence supports the trustworthiness of the statements. See Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (affirming admission of hearsay statements where these elements were met). The record demonstrates: (1) an eyewitness to the latter part of Olson's confrontation with the victim called 911 and informed police that Olson was outside arguing with the victim, who was attempting to escape in her car; (2) immediately following the assault, the victim informed the investigating officer that Olson had lost control and had backhanded her across the face; (3) the victim stated during the same interview that shortly after Olson's second appearance at her apartment, she had asked him to leave, and that when he refused, she left the apartment; (4) the investigating officer noticed the victim had a red and puffy eye; (5) although the officer urged the victim to appear at the station the following day for photos of her injuries, she failed to appear; (6) the victim also was absent on the first day of trial; (7) when she finally appeared in court pursuant to a bench warrant for her arrest, the victim testified that she was present under force of subpoena and did not wish to testify; (8) both defense counsel and the prosecution questioned the victim thoroughly regarding the incident and her prior statements to the police; (9) when questioned as to the nature of her injury, the victim recanted her previous statement to the officer and testified that Olson accidently hit her with his baseball cap; and (10) the victim also qualified her testimony regarding her request that Olson leave, stating she "didn't really mean it." Under these circumstances, we cannot say the trial court abused its discretion in admitting the victim's statements as substantive evidence. See, e.g., State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987) (affirming trial court's admission of prior out-of-court statement by victim's mother to social worker that defendant admitted fondling victim, although mother testified at trial that she did not recall night of incident and that her statement to social worker was taken out of context), review denied (Minn. Mar. 18, 1987); State v. Soukup, 376 N.W.2d 498, 501 (Minn. App. 1985) (upholding admission of hearsay under residual rule where indicia of reliability were present, including victim's admission of making statements, consistency of hearsay statements with medical testimony, and no reason on part of other witnesses to fabricate testimony regarding crime), review denied (Minn. Dec. 30, 1985).

Olson further argues the trial court improperly admitted evidence of his prior assault of the victim. Generally, "[e]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith." Minn. R. Evid. 404(b). However, evidence of another crime, wrong, or act may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Furthermore, in domestic abuse cases,

[e]vidence of similar prior conduct by the accused against the victim of domestic abuse * * * is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn. Stat. § 634.20 (1996).

The record shows: (1) testimony at trial described an argument between the parties in 1994, which became heated and ended with Olson's striking the victim in the face and dragging her down a flight of stairs; (2) the victim testified she was afraid of Olson after the 1994 assault, but did not immediately report the assault to the authorities because she did not want to "get [Olson] into trouble"; and (3) the victim also stated she did not want Olson to be prosecuted for the 1994 offense and that the whole incident was a "misunderstanding." Given these facts, the trial court properly admitted evidence of Olson's prior domestic abuse against the victim to illustrate the strained relationship between the parties and to demonstrate the absence of accident or mistake. Olson is not entitled to a new trial on the basis of the trial court's evidentiary rulings.


Finally, Olson argues he is entitled to a new trial on the ground of ineffective assistance of counsel, because his attorney failed to: (1) raise the issue of Olson's possessory interest in the apartment; or (2) object to the admission of the victim's out-of-court statements as substantive evidence. Because Olson had no possessory interest in the apartment and the trial court properly admitted the victim's out-of-court statements into evidence, Olson cannot demonstrate that his defense counsel's failure to raise these issues altered the outcome of the trial. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (requiring defendant, in ineffective assistance of counsel claim, affirmatively to prove his or her attorney's representation fell below objective standard of reasonableness and to demonstrate a reasonable probability that, but for attorney's unprofessional errors, result of proceeding would have been different) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Therefore, we decline to grant a new trial on this basis.

Affirmed and motion granted.