This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Justin Lee Harrill,


Filed November 4, 1997


Huspeni, Judge

Faribault County District Court

File No. K096123

Maureen Williams, Law Office of Maureen Williams, Barristers Trust Building, 247 Third Ave. S., Minneapolis MN 55415 (for appellant)

Hubert H. Humphrey III, Attorney General, Jessica S. McConaughey, Asst. Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Joel Welder, Faribault County Attorney, P. O. Box 130, Blue Earth, MN 56013 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge, and Amundson, Judge.



Appellant challenges his convictions for first-degree criminal sexual conduct, kidnapping, and second-degree assault, alleging that because his Fourth Amendment rights were violated by a warrantless entry into his home and subsequent search and seizure, the trial court erred in failing to suppress evidence resulting therefrom and also erred in excluding evidence of the victim's past sexual conduct with appellant. Because we find no error in either decision of the trial court, we affirm.


Appellant Justin Lee Harrill and victim T.H. were married in 1994. By April 1996, they were separated and attempting to negotiate custody of their two-year-old son, Z.H. On April 12, 1996, appellant drove T.H. against her will from Colorado to appellant's trailer located in Faribault County.

Upon arriving at the trailer, appellant and T.H. argued. Appellant produced a hunting knife, ordered T.H. to remove her clothes, tied her to a door with rope and had oral, anal, and vaginal sex with her. After T.H. complained of pain in her hands, appellant cut the ropes from the door, tied her hands and feet again, and went to sleep. Once appellant was asleep, T.H. removed the ropes with her mouth and drove to a farmhouse 100 yards away.

When police responded to her call, T.H. stated that appellant had just sexually assaulted her, was armed with a hunting knife, was asleep in the trailer when she left, and might be suicidal because he had been suicidal in the past. Officers proceeded to the trailer, quietly entered without a warrant, arrested appellant, removed him without questioning him, read him his Miranda rights, and placed him in the police car. The police took photos in the bedroom of the rope and woman's clothing that were in plain view. While taking the pictures, one of the officers noticed and photographed a large hunting knife on the ceiling fan in the center of the bedroom. At the police station, appellant admitted having consensual sex with T.H. and asserted that T.H. wanted to be tied to the door.

Appellant's request that all evidence taken in conjunction with his warrantless arrest be suppressed was denied, as was his motion to allow T.H. to be questioned about her past sexual conduct. After a jury convicted appellant of first-degree criminal sexual conduct-dangerous weapon, kidnapping, and second-degree assault, the trial court used the kidnapping conviction as an aggravating factor to enhance appellant's sentence to 134 months.


1. The Fourth Amendment

Because the protection of a person's home from warrantless, nonconsensual entry is an important Fourth Amendment right, the state must show that exigent circumstances existed to warrant the entry. State v. Olson, 436 N.W.2d 92, 97 (Minn. 1989), aff'd, 495 U.S. 91, 110 S. Ct. 46 (1990). There are two tests to determine the presence of exigent circumstances: (1) the single factor test; or (2) the "totality of the circumstances" test. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).[1] The totality of the circumstances test requires consideration of:

(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reasons to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made.

Id. (citing Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)). The trial court applied these factors and found that exigent circumstances existed to justify the warrantless entry and arrest. We find no error in that determination.

The first Gray factor was met because kidnapping and rape are grave and violent offenses, especially when perpetrated with a knife. Appellant was suspected of tying up T.H. and raping her at knife point. T.H. escaped only after loosening the ropes with her mouth and driving without clothes to a nearby farmhouse.

The second Gray factor was also met; appellant admits the presence of a hunting knife, although he claims that it was used only as part of a "bondage routine" the couple engaged in. T.H.'s statement given at the scene, however, provided the police with reason to believe that a weapon was present.

Appellant concedes the presence of the third and fourth Gray factors.

With regard to the fifth Gray factor, appellant asserts that because he was last seen asleep, T.H. had taken his car, and police were watching the trailer, there was no chance that he would escape. However, in Gray, the supreme court found this factor to be satisfied even though the defendant was in a hotel room surrounded by police. Id. The court reasoned that because the defendant was not from the area and had been very active the previous night, he was likely to escape at any time. Id. In the present case, the 9-1-1 caller told the dispatcher that the couple had just come to the area to get a few things after being gone all winter; this situation is factually similar to Gray. Also, the trial court stated that if appellant awoke to find T.H. missing, he would have attempted to escape. It was likely that appellant would have attempted an escape, regardless of his eventual success.

And finally, regarding the requirement of peaceable entry, we find that this case is very similar to Gray, where police entered the defendant's hotel room and arrested him in such a way as to avoid injury to people in other hotel rooms.

[A]lthough peaceable entry was not made, police handled the situation admirably in making a quick entry, using limited force, and thus preventing anyone, including other motel residents, from being injured.

Id. at 256. In the present case, where appellant was asleep in his trailer, but had a knife and might have been suicidal, we find that police acted properly by moving quickly and quietly to protect appellant as well as themselves.

Other circumstances the court weighed in assessing the totality of the circumstances were the indestructibility of the evidence, the rural setting, and the knowledge that appellant might be suicidal. Weighing the totality of the circumstances, exigent circumstances existed to allow police to enter appellant's home and arrest him without a warrant.

Appellant next argues that evidence taken in conjunction with the warrantless arrest should be suppressed because the police failed to "strictly circumscribe" their search. We disagree, and note that all the evidence obtained was in plain view of the officers. To meet the requirements of the plain view exception to a warrantless search: (1) the officers must be lawfully in a position to view the evidence; (2) the incriminating nature of the evidence must be readily apparent; and (3) the officers must have a lawful right of access to the object. In re the Welfare of G.(N.M.N.)M., 560 N.W.2d 687, 693

(Minn. 1997) (relying on Minnesota v. Dickerson, 508 U.S. 373, 375, 113 S. Ct. 2130, 2136-37 (1993)).[2] The evidence indicates that all three factors are met.

The deputy was in the room only to arrest appellant when he noticed that rope on a stool and on the floor matched the description given by T.H. As a result of the objects in view, the deputy requested that someone go to his car to get a camera so that he could photograph the evidence. While the deputy was taking pictures, another officer noticed a hunting knife on the blade of the ceiling fan. The deputy subsequently photographed the knife also.

Lastly, the officers did not ransack the trailer, but limited their photography to evidence that was visible in the room. The warrantless arrest and the evidence taken in conjunction with that arrest did not violate appellant's Fourth Amendment rights.

2. Victim's Past Sexual Conduct

Evidence of a victim's sexual conduct is not admissible in criminal sexual conduct cases except in limited circumstances:

(A) When consent of the victim is a defense in the case,

(i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent [and];

(ii) evidence of the victim's previous sexual conduct with the accused * * * [are admissible] * * *.

Minn. R. Evid. 412. Minn. Stat. § 609.347, subd. 3(a) (1996), states:

When consent of the victim is a defense in the case, the following evidence is admissible: (1) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue.

"When a victim's sexual history involves a pattern of clearly similar behavior constituting habit or modus operandi" it becomes relevant, material, and potentially admissible in rape cases. State v. Davis, 546 N.W.2d 30, 34 (Minn. App. 1996), review denied (Minn. May 21, 1996) (emphasis added). In order to qualify, this pattern must "occur regularly and be similar in all material respects." Id.

Appellant contends that forceful sexual activities were commonplace in his marriage to T.H. and that this particular incident was part of their routine sexual conduct. Thus, appellant sought to question T.H. about her statement to police that "this has happened nine times" before, and that appellant had used force on her eleven times. Appellant contends that this is evidence of a pattern of consensual sexual activities.[3]

The trial court denied appellant's request to question T.H. about her statement to police, concluding that there were at least three possible interpretations of the statement and an attempt to determine the exact meaning of the statement could consume the focus of the entire trial. The court did, however, permit appellant to testify as to his relationship with T.H. In his testimony, appellant stated that he and T.H. enjoyed experimenting sexually and engaged in consensual bondage activity on a regular basis.

We recognize that under limited circumstances Minn. R. Evid. 412 does permit receipt of evidence of the victim's past sexual conduct. This rule is tempered, however, by the overarching principle that evidence is not admissible if its prejudicial nature outweighs its probative value. Minn. R. Evid. 412, subd. 1; Minn. Stat. § 609.347, subd. 3. T.H.'s vague statement did not reach the threshold of proof of a "pattern of clearly similar behavior." In fact, considering it was given immediately after a brutal rape, it was very possibly evidence of other rapes that had occurred since the parties separated.

Because the challenged evidence would have changed the focus of the trial, and because appellant himself was allowed to testify as to the nature of his relationship with T.H., exclusion of the challenged evidence was not an abuse of discretion.


[1]If any one of the single-factor exigent circumstances exists, then the warrantless entry is reasonable; however, since respondent does not argue that any of the single factors applies, we focus on the totality of the circumstances test.

[2] We recognize that this test eliminates the requirement that police discover the evidence inadvertently. See State v. Smith, 386 N.W.2d 403, 404 (Minn. App. 1986), review denied (Minn. July 16, 1986); but see Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304 (1990) (holding that "though inadvertence is a characteristic of most legitimate `plain-view' seizures, it is not a necessary condition."). Even if inadvertent discovery were still a requirement of a valid plain view discovery, the facts indicate that the evidence was discovered inadvertently by police when they arrested appellant.

[3]Appellant also moved the court to permit Kris Harrill to testify that T.H. "enjoyed unusual sex." The court refused to allow her to testify as to any unusual sexual relationships because the incidents involved people other than appellant. Evidence of events involving other people at other times is irrelevant evidence and exclusion of Kris Harrill's testimony was not an abuse of discretion. See Minn. R. Evid. 402.