This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2310

State of Minnesota,

Respondent,

vs.

Blake McGuire,

Appellant.

Filed August 12, 1997

Affirmed

Norton, Judge

Lake of the Woods County District Court

File No. TX-96-420

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

John R. Krouss, Marshall County Attorney, PO Box 637, Baudette, MN 56623 (for Respondent)

Steven A. Nelson, 210 Fourth Avenue, International Falls, MN 56649 (for Appellant)

Considered and decided by Norton, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

NORTON, Judge

In challenging his conviction for fifth-degree assault, appellant claims the trial court abused its discretion when it allowed a police officer to testify that the victim simultaneously reported prior assaults and the present assault. The trial court did not abuse its discretion; it prevented prejudice by taking precautionary measures and giving the jury a Spreigl instruction. We affirm.

FACTS

This case arises out of a domestic incident between appellant Blake McGuire and his girlfriend. Appellant was charged with two counts of assault in the fifth degree, in violation of Minn. Stat. § 609.224, subd. 1(1), (2) (1996) (intent to inflict bodily harm and intent to cause fear). At trial, the first witness was the officer who had investigated the incident. The prosecutor asked the officer, "What did she tell you happened?" When defense counsel objected, the prosecutor qualified the hearsay as a res gestae exception. The trial court overruled the objection. The officer testified that the victim said:

she had been out at their residence that her and Mr. McGuire shared, and that she'd had an argument and that it had happened in the shower area somewhere of the home, and that this had been the third occasion in the last couple of years and that she would like to press charges in this case.

Immediately after the officer entered this statement on the record, defense counsel moved for mistrial on the grounds that res gestae applied to the time immediately around the offense, not to two hours later, when the victim gave her report. The court denied the motion because the prior incidents were included in the officer's report and the victim's statement, which were part of discovery that had been turned over to the defense months before trial. The court also requested that the attorneys instruct their witnesses not to testify to the prior incidents and gave the jury this Spreigl instruction to disregard the officer's testimony:

Members of the jury, there was some testimony of some prior incidents. [Appellant] is not being tried for any prior incidents. And you're specifically instructed that you are not to convict him on the basis of any conduct occurring prior to the particular incident on May 18, 1996. To do so might result in an unjust, double punishment.

Even though the court took these steps to remedy the situation, appellant chose to testify about the prior incidents in an effort to respond to the officer's remark.

The jury returned a verdict finding appellant guilty as charged. Appellant moved for vacation of judgment or, in the alternative, a new trial based on the officer's testimony. After a hearing, the trial court denied this motion because it determined the testimony not hearsay under Minn. R. Evid. 801(d)(1)(B) and an exception to the hearsay rule under Minn. R. Evid. 803(2).

D E C I S I O N

1. Victim's out-of-court statement

The out-of-court statement at issue contains two elements: the victim's report of the current incident and her comment "that this had been the third occasion in the last couple of years."

An out-of-court 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 * * * consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness * * * .

Minn. R. Evid. 801(d)(1)(B).

The out-of-court statement about the prior incidents does not meet this definition because the "declarant," the victim, never testified about it at trial. After the officer testified to the victim's out-of-court statement regarding prior incidents, the court instructed counsel not to inquire of any other witnesses about the content of her remarks. Consequently, the victim never testified about any other incidents. When, as here, a "witness' prior statement contains assertions about events" that she has not described in trial testimony, "those assertions are not helpful in supporting the credibility of the witness and are not admissible under this rule." Minn. R. Evid. 801, 1989 comm. cmt. (West 1997). In order for the out-of-court statement to be a prior consistent statement, it would, by definition, have to be consistent with the declarant's testimony at trial. Id.; see State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993) (out-of-court statement not hearsay if consistent with declarant's trial testimony).[1] Thus, the victim's out-of-court statement about prior incidents did not constitute a prior consistent statement and was not admissible under Minn. R. Evid. 801(d)(1)(B). The victim's out-of-court statement regarding the current incident, however, was admissible as a prior consistent statement because she was the declarant and she testified at trial to the details of the current incident. However, even if her statement regarding the current incident were not admissible as a prior consistent statement, it would be admissible as an excited utterance, as we will discuss below.

Appellant next contends the entire out-of-court statement, including both the prior and current incidents, could not have constituted an excited utterance, or res gestae, because the victim gave the police report hours after the assault occurred. Whether a statement constitutes an excited utterance rests in the trial court's discretion; the court's ruling will not be overturned absent an abuse of discretion. State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992).

"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" is an exception to the hearsay rule even though the declarant is available to testify. Minn. R. Evid. 803(2). The trial court also has the discretion to determine "whether the declarant was sufficiently under the 'aura of excitement.'" Edwards, 485 N.W.2d at 914 (quoting State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986)). The basic elements of an excited utterance are: (a) a startling event or condition, (b) a statement that relates to the event or condition, and (c) the statement was made under the stress caused by the event or condition. Id.

Of these elements, "[t]he key to admissibility is whether the utterance was spontaneous and excited." In re Welfare of Chuesberg, 305 Minn. 543, 546-47, 233 N.W.2d 887, 889 (1975). The indicia of spontaneity include the lapse of time between the startling occurrence and the statement, the self-serving or incriminating nature of the statement, whether the statement was in response to a question, the declarant's motive and opportunity for fabrication, and the declarant's natural excitement. Hase v. American Guar. & Liab. Ins. Co., 312 Minn. 271, 274, 251 N.W.2d 638, 641 (1977).

Appellant argues that the victim's remarks to the officer regarding the prior and present incidents were not an excited utterance because of the length of time that elapsed between the alleged assault and the police report. The lapse of time between a startling occurrence and a statement is an important factor, though not a controlling factor. Beebe v. Kleidon, 242 Minn. 521, 526, 65 N.W.2d 614, 617 (1954).

Both appellant and the victim testified that the incident occurred at approximately 9:30 a.m. The victim testified that she left the scene of the assault immediately, drove to her friend's house, called her mother, and then went to her mother's house. Once there, she called the police immediately. The officer testified that he met with the victim before noon that day, yet she was still "visibly upset and shaken to some degree." Although over two hours had lapsed between the time of the incident and the police report, the fact that she was still visibly shaken supports the trial court's determination that her entire out-of-court statement was admissible as an excited utterance. Cf. State v. Quinnild, 231 Minn. 99, 106-07, 42 N.W.2d 409, 413 (1950) (child's statements were not excited utterances when made nearly two hours after assault and after child had showered, reflected on the incident, and taken a nap).

Finally, in addition to determining that the out-of-court statement was not excludable as hearsay, the trial court properly determined that the statement was not excludable as Spreigl evidence.[2] See State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (setting forth elements for admission of Spreigl evidence). The facts in the record satisfy the elements of Spreigl evidence: the victim's statement was part of the police record, the statement showed the history of the relationship between appellant and the victim, appellant testified to his participation in the prior incidents, and, other than appellant, no one else at trial mentioned the prior incidents after the officer testified. See id. (Spreigl evidence must be clear and convincing that defendant participated in prior incidents, relevant and material to state's case, and more probative than prejudicial); State v. Enger, 539 N.W.2d 259, 263 (Minn. App. 1995) (evidence of prior bad acts between defendant and victim was not Spreigl and was admissible to establish their relationship; even if it were Spreigl evidence, it was admissible because defendant knew relationship would be at issue at trial and should have been prepared to refute it), review denied (Minn. Dec. 20, 1995).

2. Spreigl instruction

Appellant alleges he is entitled to a new trial because the Spreigl instruction that the court gave the jury was insufficient to repair the alleged damage caused by the officer's testimony. Whether trial proceedings have prejudiced a defendant and warrant a mistrial rest within the trial court's discretion; the court's decision will not be reversed absent a clear abuse of that discretion. State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985).

To make this determination, appellant suggests the court must apply the factors set out in State v. Halvorson, 506 N.W.2d 331, 336 (Minn. App. 1983). This test, however, ordinarily applies only in cases where the jury has been exposed to some outside influence, such as an outburst from the victim against the defendant in the courtroom or comments from a sheriff regarding his opinion of the defendant's guilt or innocence. See State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982) (sheriff's comments); Halvorson, 506 N.W.2d at 336 (victim's comments).

The officer's comments here were not spontaneous, but rather were a direct response to the prosecutor's question. The officer included details of what had happened the morning of the incident, as well as the victim's desire to prosecute because these types of incidents had occurred before. The record shows that, months before trial, the prosecutor had disclosed to the defense the police report and the victim's statement attached to it. Consequently, the officer's remarks were not a surprise to the prosecution. See Enger, 539 N.W.2d at 263 (evidence of prior bad acts admissible and not prejudicial because defendant knew issue of relationship with victim would be at issue at trial and should have been prepared to refute it).

Moreover, the trial court reduced the probability of any prejudice when it instructed counsel not to elicit any other testimony regarding appellant's prior incidents, instructed the jury to disregard the comment regarding the prior incidents, and specifically instructed the jury that they must decide this case based only on the current charges, not on the prior incidents. Despite the fact that the court took precautions to eliminate any prejudicial effect, appellant chose to testify about his version of the prior incidents and unnecessarily put the facts into the record when he took the stand. Even so, however, the prosecution did not mention those incidents again. The Spreigl instruction, in this context, was sufficient to repair any alleged damage that the officer's testimony could have caused. We cannot say that there is a reasonable likelihood that the out-of-court statement, as opposed to appellant's prolonged testimony regarding the prior incidents, substantially prejudiced the jury.

The trial court's evidentiary rulings were not an abuse of discretion. The Spreigl instruction and remedial measures at trial eliminated the likelihood of any prejudice arising from the officer's testimony. In addition, the record contained sufficient evidence from the victim to support the jury verdict finding appellant guilty of fifth-degree assault.

Affirmed.

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

[ ]1 Appellant contends this statement was not admissible as a prior consistent statement because it must be "offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." Slater v. Baker, 301 N.W.2d 315, 318 (Minn. 1981) (quoting Minn. R. Evid. 801(d)(1)(B) in effect in 1981). That law is outdated, however, and has been superseded by the current amended version of Minn. R. Evid. 801(d)(1)(B).

[ ]2 The 1989 committee comment to Minn. R. Evid. 803 notes:

Rules 803 and 804 provide certain exceptions to the general rule of exclusion for hearsay statements. A statement qualifying as an exception to the hearsay rule must satisfy other provisions in these rules before it is admissible.