This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Bailey Allen Hill,


Filed July 20, 1999

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

Ramsey County District Court

File No. K3973222

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN 55101 (for appellant)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Bailey Hill appeals from his convictions and sentences for attempted murder in the second degree and assault in the first degree. He alleges there was insufficient evidence to convict him of the assault, the trial court abused its discretion in permitting the state to elicit testimony of an out-of-court identification pursuant to Minn. R. Evid. 804(b)(5), and the trial court erroneously sentenced him for each count although they arose from a single course of criminal conduct. We hold Hill was properly convicted of both offenses, but that under Minn. Stat. § 609.035, subd. 1 (Supp. 1997), he should have been sentenced only once. We, therefore, remand for vacation of one of the sentences.


Appellant Bailey Hill was charged with assault in the first degree in violation of Minn. Stat. § 609.221, subd. 1. The complaint charged that at approximately 3:00 a.m. on October 3, 1997, Hill repeatedly struck Charles Roberson in the head with a piece of concrete. The attack occurred near the corner of Avon and Aurora in St. Paul. Prior to the first trial, the state filed an amended complaint adding the charge of attempted murder in the second degree in violation of Minn. Stat. §§ 609.19, subd. 1(1) and 609.17, subd. 1. The new complaint did not allege any additional facts. Following three days of jury deliberations, the jury announced it was deadlocked and the trial court declared a mistrial. Approximately two months later, Hill was retried and convicted of both counts.

Roberson has been in a coma since the date of the offense and was unable to testify. Several witnesses were in the vicinity of the crime and testified at the second trial. But none of them testified to actually seeing Hill commit the assault.

Timothy Brazil was one of the witnesses near the corner of Avon and Aurora. His testimony placed Roberson and Hill in the area of the assault around the time a local bar was closing.

Johnny Phipps testified he saw Hill walk across University Avenue with a rock in his hand. Alberta Adell stated she heard yelling coming from the corner of Aurora and Avon and saw Roberson laying on the ground bleeding. She also testified she saw Hill running away from the corner of Avon and Aurora.

David Oliver Smith knew Hill by the street name "Bill Bo." On October 3, around 3:00 a.m., he was on Avon, between Aurora and University, drinking and getting high with Adell. Smith testified he saw Roberson walk south from University on Avon; he saw the assailant walking fast, about a half a block behind Roberson, carrying something in his hand. The assailant caught up with Roberson at the corner and hit him repeatedly in the head. Afterwards, Smith went over to where Roberson lay on the sidewalk and told someone to call an ambulance.

When asked to make a courtroom identification of the person who struck Roberson with the brick, Smith testified,

I can't say that because the lighting wasn't -- you can look in the picture, in the background, it was too dark around there. I'm not going to point no fingers and I could be wrong.

Shortly after the assault, Smith talked to Officer Jeffrey Hutchinson. Smith told Hutchinson he had seen the assault, the assailant was a black male who was approximately 6 feet to 6 feet 2 inches tall, had a muscular build, and was wearing a brown sweater and blue jeans. Smith told Hutchinson he had yelled at the assailant to stop hitting Roberson and the assailant did. He also told Hutchinson he did not know the assailant, but had seen him in the neighborhood.

Later that day, Sergeant Keith Mortenson questioned Smith at police headquarters. Smith told Mortenson he did not want his name included in any police reports. Smith recounted to Mortenson what he had seen.

At trial Mortenson maintained Smith told him the assailant's name was "Bill Bo" and he had a daughter who lived somewhere on Central Avenue. Mortenson testified he then put together a computer-generated photographic array, which consisted of approximately 50 images. The computer displayed these images randomly for Smith to view. At the midpoint of the display, Smith responded to an image by stating, "That's him." Mortenson testified Smith identified the individual as Bill Bo.

Smith, however, denied telling Mortenson the person who had struck Roberson was Bill Bo. He maintained Mortenson had shown him a series of computer-generated photos, none of whom he identified as the assailant. Smith stated Mortenson then left the interview room to take a phone call; when he returned, he asked Smith to name the individual whose photograph he then displayed. Smith answered that it was a photograph of Bill Bo.

When the police arrested Hill on October 3, 1997, Mortenson interrogated him. During the interview, Hill denied assaulting Roberson, but acknowledged that Roberson had hit him in the head with a bottle a few days earlier. Mortenson saw a horseshoe-shaped cut on the top of Hill's head and saw abrasions on his hands. Hill explained the abrasions were from helping his mother-in-law move.

The jury returned verdicts of guilty on both the attempted second-degree murder and the first-degree assault charges. The trial court sentenced appellant to an executed sentence of 240 months on each count to be served concurrently. This was an upward durational departure of 27 months on the attempted second-degree murder count and an upward durational departure of 82 months on the first-degree assault count. Hill appeals from these convictions and sentences.


1. Sentencing

Minn. Stat. § 609.035, subd. 1 (Supp. 1997), prohibits the imposition of multiple sentences, including concurrent sentences, arising from a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). The primary purpose of this statute is to

protect a defendant convicted of multiple offenses from unfair exaggeration of the criminality of the conduct and to ensure that punishment is commensurate with culpability.

State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997) (citation omitted).

Hill contends and the state agrees that Hill's conduct constituted a single behavioral incident, and the trial court erroneously sentenced Hill on both counts in violation of Minn. Stat. § 609.035, subd. 1. We agree, and remand this case to the trial court to vacate one of the two concurrent sentences imposed. See State v. Tilddahl, 540 N.W.2d 514, 515 (Minn. 1995) (remanding to the trial court to vacate one of the two sentences imposed for aggravated driving and open bottle violations). 2. Admission of evidence

The trial court permitted Mortenson to testify to an out-of-court identification made by Smith, a witness to the assault. The court found Smith was unavailable with respect to the identification testimony, and ruled the statement was hearsay admissible under Minn. R. Evid. 804(b)(5), the catch-all exception. Hill argues the statements were not admissible pursuant to Minn. R. Evid. 804(b)(5) and admission of the statements violated the confrontation clauses of the United States and Minnesota constitutions.

a. Hearsay issues The state concedes the trial court erred in finding Smith was unavailable, and therefore, erroneously admitted the evidence pursuant to Minn. R. Evid. 804(b)(5). The state, however, argues the testimony was admissible pursuant to Minn. R. Evid. 801(d)(1)(C). It contends the court's determination that the statements bore equivalent guarantees of trustworthiness and served the interests of justice satisfies the requirement under Minn. R. Evid. 801(d)(1)(C) that the circumstances of the prior identification demonstrate its reliability.

Under Minn. R. Evid. 801(d)(1)(C), 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 * * * (C) one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification.

Thus, testimony about a witness's prior out-of-court identification is admissible if the prior identification occurs under circumstances ensuring its trustworthiness. Minn. R. Evid. Committee Comment 1989; see also State v. Jones, 277 Minn. 174, 179, 152 N.W.2d 67, 72 (1967) (holding extra-judicial identification of defendant by police officers who testified at trial would have been admissible if proper foundation had been laid).

The rationale for the rule stems from the belief that if the original identification procedures were conducted fairly, the prior identification would tend to be more probative than an identification at trial.

Minn. R. Evid. Committee Comments 1989; see also Gilbert v. California, 388 U.S. 263, 272 n.3, 87 S. Ct. 1951, 1956 n.3 (1967) ("evidence of an extra-judicial identification is admitted * * * because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind") (quoting People v. Gould, 354 P.2d 865, 867 (Cal. 1960). We conclude Smith's extra-judicial statements fit within the parameters of Minn. R. Evid. 801(d)(1)(C). Smith testified at trial, was subject to cross-examination concerning his statements to Mortenson, and the statements were identification statements.

Additionally, we are satisfied the circumstances of the prior identification demonstrate its reliability. The five factors used to assess the trustworthiness of a prior identification by an eyewitness are set out in State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969):

the opportunity of the witness to see the defendant at the time the crime was committed, the length of time the person committing the crime was in the witness' view, the stress the witness was under at the time, the lapse of time between the crime and the identification, and the effect of the procedures followed by the police as either testing the identification or simply reinforcing the witness' initial determination that the defendant is the one who committed the crime.

Reviewing the facts of this case in light of these factors, there are sufficient guarantees of trustworthiness to admit the evidence under Minn. R. Evid. 801(d)(1)(C). The initial identification was made shortly after the assault. The assault occurred in the early morning on October 3, and Mortenson showed the photos to Smith that afternoon. Smith was also in a position to identify the assailant. Smith testified he saw Roberson and the assailant about a half a block apart. Smith saw the assailant walking after Roberson and saw the assailant hit Roberson in the head. He was also close enough for the assailant to respond when he told him to stop hitting Roberson. Additionally, he gave a detailed description of the assailant to Officer Hutchinson immediately after the assault.

b. Confrontation Clause

Hill also alleges the admission of the testimony violated his constitutional right to confront the witnesses against him. We find this claim meritless.

The Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with witnesses against him." U.S. Const. Amend. VI. Both Smith and Sgt. Mortenson testified at trial and were available for cross-examination. Moreover, Smith's denial of the initial identification did not affect Hill's ability to cross-examine him or implicate the confrontation clause. See United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842 (1988) (holding confrontation clause was not violated when prison guard, who had made an earlier out-of-court identification of defendant as his assailant, was prevented by memory loss from testifying at trial to the basis upon which he made the identification); Nelson v. O'Neil, 402 U.S. 622, 629-30, 91 S. Ct. 1723, 1727 (1971) (holding "[w]here a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments"); see also 2 McCormick on Evidence § 251 at 123-24 (John W. Strong 4th ed. 1992) (stating "if [the witness] denies making the statement, and also denies the event, it has been held that the result is more favorable to the cross-examiner than could be produced by eliciting an admission that the statement was made and an explanation of change of position, and that cross-examination requirements are satisfied"). 3. Sufficiency of the evidence

Hill challenges the sufficiency of the evidence to support the jury's determination that he was the person who assaulted Roberson. On a challenge to the sufficiency of the evidence, the court's only inquiry is whether, on the facts in the record and legitimate inferences to be drawn from them, a jury could reasonably conclude the defendant was guilty. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The court must view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved any contrary evidence. Id.

The credibility of witness testimony and the weight given to the testimony of any individual witnesses are issues for the trier of fact. Id. Inconsistencies or conflicts between one state witness and another do not constitute a basis for reversal. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).

After a careful review of the evidence in the record, we conclude a jury could reasonably find the evidence was sufficient to prove Hill was the individual who assaulted Roberson. It is implicit in the jury's verdict that they found Mortenson's testimony regarding Smith's identification statement more believable than Smith's testimony about the statement. The jury could also reasonably have believed Smith initially identified Hill as the assailant, but due to lapse of time or fear of retaliation was unwilling at trial to admit to having identified him.

In addition to Smith's out-of-court identification of Hill as the assailant, the circumstantial evidence supports the jury's determination. Hill admitted he had the motive and the opportunity to commit the assault. Hill was alone in the area of the assault when it occurred. Hill had abrasions on the palm of his left hand consistent with repeatedly picking up a rock to hit someone. Hill also fit the physical description of the assailant. Additionally, Phipps testified he saw Hill carrying a rock when he crossed the street in the direction of Roberson, and Adell testified she saw Hill running away from the area where the assault occurred.

Affirmed in part, reversed in part, and remanded.