This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1160

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Walter Paurus,

Appellant.

 

Filed August 9, 2005

Affirmed

Lansing, Judge

 

 

Clay County District Court

File No. K5-03-2049

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN  55101; and

 

Lisa Borgen, Clay County Attorney, P.O. Box 280, Moorhead, MN 56560 (for respondent)

 

John Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from conviction and sentence for felony domestic assault and fourth-degree criminal damage to property, Christopher Paurus challenges a district court evidentiary ruling, jury instructions, and the sufficiency of evidence to establish that he committed a domestic assault.  He also contends that the dispositional departure in sentencing violates his Sixth Amendment rights.  Because the disputed evidence is within an exception to the hearsay rule, the jury instructions properly defined the statutory terms, and the evidence satisfies the elements of the domestic-assault offense, we affirm the conviction.  We also affirm the dispositional sentencing departure.

F A C T S

Christopher Paurus and Yolanda Hanson were involved in a romantic relationship beginning in 2001.  During the relationship, Paurus kept personal belongings at the house Hanson shared with her two children and also spent nights at Hanson’s house.  By the spring of 2002 the relationship had become strained, and between March 2002 and mid-August 2003, four physical altercations resulted in police calls.  The first altercation involved Paurus slapping Hanson; the second, according to Hanson, involved Paurus striking Hanson on the arm, face, and legs with a closed fist approximately ten times, resulting in bruises, broken glasses, a black eye, a bloody nose, and knife slashes on Hanson’s leather jacket; and the third involved Paurus pulling Hanson off a desk and pushing her while her daughter was present.

The fourth altercation, the subject of this appeal, occurred on August 14, 2003.  In response to a report about slashed tires, police were dispatched to Hanson’s house.  On arrival police observed that Hanson was excited, upset, and looked as though she had been crying.  Police also observed that Hanson had bruises on her arm.  Hanson said Paurus had caused the bruises by grabbing her.  The police took Hanson’s statement within one hour of the time of the dispatch.  In testimony at trial, the officer who took Hanson’s statement said she did not answer questions with direct answers and interjected topics that were not responsive to the questions. 

Hanson reported that the altercation began when she refused to drive with Paurus to his mother’s home in Rochester.  Paurus began to gather his clothes from the house, called Hanson offensive names, and kicked her table.  He pulled her off the couch by her leg, grabbed her arms, pushed her arms over her head to the ground, and knelt over her.  He then stood up and left, but returned fifteen minutes later, grabbed a knife from her kitchen, and threatened to damage her car.  Hanson called the police and watched Paurus from the house as he used the knife to slash her tires. 

The state charged Paurus with felony domestic assault and fourth-degree criminal damage to property.  At trial, in response to the state’s subpoena, Hanson testified but provided a conflicting account of the events.  She testified that she had lied in her statement to get Paurus in trouble, that Paurus had not assaulted her, that he did not have a knife, that the tire damage was caused by a nail, and that the marks on her arms were caused by a screen door, not by Paurus.  Over defense objection, the court permitted the state to admit into evidence Hanson’s statement to the police.

Hanson also provided conflicting testimony on the nature of her relationship with Paurus.  On direct-examination, she stated that she considered her relationship with Paurus to be a significant, boyfriend-girlfriend relationship and that she and Paurus had broken up “two, three months ago.”  On cross-examination, she stated that she was not in a romantic or sexual relationship with Paurus on August 14, 2003.  Then, on redirect, she said that, up to and at the time of the incident, she had “never not thought” of Paurus as her boyfriend.

Following the evidentiary portion of the trial, the judge instructed the jury on the elements of felony domestic assault, including the statutory definition of “household or family member[s]” and the criteria for determining whether persons are or have been involved in a “significant romantic or sexual relationship.”  Paurus objected to both instructions. 

The jury returned a verdict of guilty on both counts.  The district court sentenced Paurus to eighteen months in prison for the felony domestic assault, a dispositional departure from the presumptive stayed sentence under the guidelines.  On the criminal-damage-to-property conviction, the district court imposed a concurrent ninety-day sentence.  In this appeal from conviction and sentence, Paurus challenges (1) the sufficiency of the evidence to establish that he and Hanson were household or family members for purposes of the domestic-abuse statute, (2) the jury instructions, (3) the admissibility of Hanson’s statement to police, and (4) the constitutional validity of the dispositional sentencing departure.

D E C I S I O N

I

            To be guilty of domestic assault under Minnesota law, the assaultive act must be committed “against a family or household member, as defined in section 518B.01, subdivision 2.”  Minn. Stat. § 609.2242, subd. 1 (2002).  A “family or household member” includes “persons involved in a significant romantic or sexual relationship.”  Minn. Stat. § 518B.01, subd. 2(b)(7) (2002).  With respect to this term, the definitional statute provides additional guidance to the court:  “In determining whether persons are or have been involved in a significant romantic or sexual relationship under clause (7), the court shall consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since termination.”  Minn. Stat. § 518B.01, subd. 2(b) (2002).

In a challenge to the sufficiency of the evidence, our role is limited to “ascertaining whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We carefully review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the fact-finder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

Paurus contends that the evidence is insufficient to support the jury’s finding that he and Hanson were household or family members.  We disagree.  Viewing the evidence in a light most favorable to the conviction, the jury could reasonably conclude that Paurus and Hanson were involved in a significant romantic or sexual relationship, which establishes household or family membership.  At trial, on February 4, 2004, Hanson testified that she and Paurus had broken up two or three months earlier.  From this testimony the jury could reasonably infer that the significant romantic or sexual relationship ended in November or December 2003, which was several months after the August 2003 assault.  Hanson testified to events in their ongoing relationship and affirmatively responded that she considered Paurus to be her boyfriend.  The jury could have also attached significance to the fact that, at the time of the August 14 assault, Paurus still kept clothing at Hanson’s home. 

Although Hanson also denied that she was involved in a relationship with Paurus, the jury could have attributed this contradictory statement to Hanson’s reluctance to testify against Paurus and her apparent attempts to reduce Paurus’s culpability following the events.  Consequently, Hanson’s affirmative and specific statements describing the relationship are sufficient for the jury to determine that she and Paurus were involved in a significant romantic or sexual relationship at the time of the August 14 assault.

II

            District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  We view jury instructions in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  If an instruction materially misstates the law, it is erroneous.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  In a criminal trial, the jury instructions should define the crime charged and the elements of that crime.  Id.

            The district court instructed the jury on the statutory factors for determining whether persons are involved in a romantic or sexual relationship.  This definition embodies rather than misstates the law.  The domestic-assault statute, Minn. Stat. § 609.2242, subd. 1, expressly incorporates the definition of “family or household member[s]” provided in Minn. Stat. § 518B.01, subd. 2, which includes parties in a “significant romantic or sexual relationship.”  Section 518B.01, subdivision 2(b) provides a detailed definition of this phrase and instructs the court to consider these factors in determining the nature of the relationship.  These considerations are equally appropriate when the jury functions as fact-finder.  We ascribe no error to the district court’s inclusion of an instruction that was not specifically requested by either the prosecution or the defense.  The district court is responsible for instructing the jury on the applicable law.  The considerations for determining the existence of a significant romantic or sexual relationship were directly applicable to Paurus’s felony domestic-abuse charge, accurately stated the law, and did not constitute error.

III

Paurus next challenges the district court’s admission of Hanson’s statement to police as an excited utterance.  Evidentiary rulings are in the discretion of the district court, and we will not reverse these rulings absent a clear abuse of discretion.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).  A defendant who claims that the district court erred in admitting evidence has the burden of proving both error and resulting prejudice.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).

A statement is inadmissible as hearsay when it is an out-of-court statement offered for the truth of the matter asserted.  Minn. R. Evid. 801, 802.  Hearsay may nonetheless be admissible if it qualifies as an excited utterance under the Minnesota Rules of Evidence.  Minn. R. Evid. 802, 803(2).  The exception requires that (1) a startling event or condition exists; (2) the statement relates to the startling event or condition; and (3) the declarant was under a sufficient aura of excitement from the event or condition to ensure the trustworthiness of the statement.  Minn. R. Evid. 803(2); State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).

The district court acted within its discretion in determining that the alleged aggressive actions and the tire slashing were startling events and that Hanson’s statement to the police directly related to these events.  The final prong, whether Hanson was still sufficiently excited by the event to ensure the statement’s trustworthiness, was established through the testimony of the police.

The officer testified that Hanson appeared to have been crying and that she was upset.  The officer also testified that she did not give direct answers and interjected comments unrelated to the officer’s inquiries.  This behavior, within an hour of the incident, suggests that she was still affected by Paurus’s alleged assaultive conduct of shouting at her, pulling her to the ground, grabbing her with sufficient force to inflict bruises, and slashing her car tires.  The district court was well within its discretion in admitting Hanson’s statement into evidence at trial.

IV

            A sentence that exceeds the statutory maximum violates a defendant’s Sixth Amendment right to a jury trial if it is based on judicially determined aggravating factors other than the fact of a prior conviction.  Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004).  For Blakely purposes, the statutory maximum sentence is the greatest sentence a judge may impose solely on the basis of the facts reflected in the jury’s verdict or admitted by the defendant, not the maximum sentence a judge may impose after finding additional facts.  Id.  A defendant therefore has a Sixth Amendment right to a jury determination of any fact that increases the sentence above this maximum.  Id. at 2543.  Because a challenge to a sentence under Blakely presents a constitutional issue, we review the challenge de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            In State v. Hanf, this court determined that Blakely does not require that a jury make factual determinations if the departure from the presumptive guidelines sentence is dispositional rather than durational.  687 N.W.2d 659, 665-66 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004).  Because a defendant’s amenability or unamenability to probation is not a fact necessary to constitute the crime and because the jury’s role does not include determining who goes to prison and who does not, a dispositional departure from the presumptive sentence does not require a jury determination that the defendant is unamenable to probation.  Id. at 665.  We recognize that in major part Paurus raises this issue to preserve his right to relief in the event that Hanf is reversed.

            Because, under Hanf, Blakely is inapplicable to dispositional departures in Minnesota and, therefore, the Sixth Amendment does not require a jury determination of Paurus’s unamenability to probation, the district court did not violate Paurus’s constitutional right to a trial by dispositionally departing from the presumptive sentence based on its own findings. 

            Affirmed.