This opinion will be unpublished and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

A04-1846

 

State of Minnesota,
Respondent,

vs.

James Allen Wallace,
Appellant.

 

Filed December 13, 2005

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Stearns County District Court

File No. K104249

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Alan C. Williams, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle Kendall, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56302 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of second-degree assault arguing that (1) the district court abused its discretion by refusing to admit evidence he now claims would have bolstered his claim of self-defense and (2) the evidence was insufficient to rebut his claim of self-defense.  Appellant also argues that the district court erred by imposing a mandatory copayment for public-defender costs without finding that he had the ability to pay.  Because the district court did not abuse its discretion in evidentiary rulings and the evidence was sufficient to support the conviction, we affirm the conviction.  We reverse the imposition of the copayment and remand for a determination of appellant’s ability to pay part of the cost of the public defender under Minn. R. Crim. P. 5.02, subd. 5.

FACTS

 

            Angelo Carl Cooper intervened in an argument between appellant James Allen Wallace and Cooper’s friend Clinton Harper outside of the Place of Hope homeless shelter in St. Cloud.  Cooper said, “let’s beat his ass” and swung at appellant despite the fact that appellant had exposed a knife in an effort to keep Cooper and Harper at bay.  Appellant nicked Cooper’s hand with the knife and walked backward toward the shelter.  Cooper and Harper kept coming toward appellant. 

            Appellant’s uncle, Casimer Tipton, drove up with two other men.  Tipton saw something in Cooper’s hand but did not identify it as a knife or other weapon.  Appellant did not see if Cooper had a knife.  Tipton stood in front of appellant, trying to get him to leave the scene, but Cooper reached over Tipton and hit appellant, knocking the knife from appellant’s hand.  Appellant said he “drop kicked” Cooper to keep him from grabbing the knife.  As appellant retrieved the knife, Cooper ran toward the shelter.  He testified that appellant chased him and stabbed him three times.  Appellant testified that he did not intend to injure Cooper but stabbed Cooper in the arm to protect himself. 

            Cooper fell down as he entered the shelter and appellant testified that he could have left at that time, but instead followed Cooper into the shelter to continue the fight.  Appellant testified that Cooper jumped up, punched him in the face, and pushed him out of the shelter.  Cooper testified that he stood up and pushed the shelter door so that it hit appellant and then appellant tried to get back inside the shelter.  Cooper held the door so appellant could not reenter and Tipton and his friends got appellant into their car and left the scene.

            Appellant was charged with second-degree assault.  At trial, appellant asked the court’s permission to question police officers about a reported dispatch that stated, “Two black males.  Saying they have knives.  Nothing scene [sic]” and an officer’s report that stated, “Dispatch advised two black males were fighting outside the Place of Hope and that the males were reaching into their pockets.  Dispatch advised the complainant thought the persons were reaching for some sort of weapons but was uncertain.”  Appellant asserted that he was attempting to introduce the evidence as relevant to “were more police sent out as a result of the reports coming from dispatch as opposed to one or two or more sent, would more be sent with a more serious case being issued?”  Appellant did not articulate how this information was relevant to his self-defense claim.

            The state objected to introduction of the statements as hearsay, offered to bolster appellant’s claim of self-defense by implying that Cooper had a knife.  The state argued that the number of officers responding was irrelevant and that appellant was attempting to use the dispatches to establish that Cooper had a weapon despite the facts that no eyewitnesses reported that Cooper had a knife or other weapon, and appellant did not tell the police that Cooper had a weapon.  Because the identity of the people who made these particular calls to the dispatcher was unknown, the state argued that it would not be able to cross-examine on the veracity of the asserted observations.  The district court excluded the statements as inadmissible hearsay that was more prejudicial than probative. 

            The jury was instructed on self-defense, and both parties dedicated their entire closing arguments to the issue of self-defense.  The jury found appellant guilty of second-degree assault, and the district court imposed the presumptive guideline sentence of 57 months.  This appeal followed.

D E C I S I O N

 

I.          Exclusion of anonymous reports to dispatcher

            For the first time, on appeal, appellant argues that the statements to the dispatcher were admissible as excited utterances under Minn. R. Evid. 803(2), and that exclusion of the statements violated his constitutional right to present a defense.  “Generally, this court will not consider matters not argued and considered in the court below.”  State v. Cunningham, 663 N.W.2d 7, 10 (Minn. App. 2003).  If a defendant fails to object at trial to a particular error, the defendant is generally deemed to have forfeited his right to have the alleged error reviewed on appeal.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  Due process requires that criminal defendants be given the opportunity to offer a complete defense while complying with established rules of evidence.  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000).  Because appellant did not argue the excited utterance exception to the hearsay rule to the district court, we decline to address it on appeal.  We note, however, that even if we were inclined to address the issue, one of the requirements of an excited utterance is that the declarant “must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.”  State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986) (quotation omitted).  And the proponent of the evidence has the burden to show that the declarant had an opportunity to observe the events personally and that the statements were made before there was time to reflect and fabricate.  Miller v. Keating, 754 F.2d 507, 510-11 (3rd Cir. 1985).  In this case, because nothing is known about the declarants, the trustworthiness of the statements could not be established and the statements would not qualify as excited utterances.

            Furthermore, evidentiary rulings rest within the discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Profit, 591 N.W.2d 451, 463-64 (Minn. 1999).  Appellant has the burden to establish that the district court abused its discretion and that he was thereby prejudiced.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Even if the district court has erred in excluding defense evidence, the error is harmless if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  In this case, appellant argues only that “a reasonable jury would have likely concluded that the statements of those present who called 911 supported appellant’s claim of self-defense and acquitted him of the sole count charged in the complaint.”  But this argument is not supported by the tentative reports to the dispatcher when coupled with the lack of any eyewitness testimony that Cooper was armed and the opportunities appellant had to leave the scene of the altercation.  Therefore, even if the district court abused its discretion in excluding the evidence, appellant has failed to establish prejudice and any error was harmless.

II.        Sufficiency of evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

The elements of self-defense are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.  The degree of force used in self-defense must not exceed that which appears to be necessary to a reasonable person under similar circumstances.  A defendant has the burden of going forward with evidence to support a claim of self-defense. Once it is raised, the state has the burden of disproving one or more of these elements beyond a reasonable doubt. 

 

State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997) (citations omitted). 

            Appellant argues that there are “grave doubts” about his conviction because he was entitled to use reasonable force to resist Cooper’s assault, and cites State v. Housley, 322 N.W.2d 746, 751 (Minn. 1982), for the proposition that when careful scrutiny of the record creates grave doubts about the defendant’s guilt, the rights of the accused require that his conviction be reversed.  Unlike the situation in Housley,[1] however, careful scrutiny of the record in this case does not raise doubts about appellant’s conviction.  Appellant was not confronted in his home, appellant stabbed an unarmed man who was running toward the homeless shelter, and appellant did not retreat when he had an opportunity to do so.

III.       Public defender copay

The district court found appellant eligible for the services of a public defender but in the order granting a public defender, ordered appellant to pay $200 under Minn. Stat.  § 611.20 (2002).  Appellant argues that because the district court did not make the required statutory findings about appellant’s ability to pay, the copay was actually ordered under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003), which was declared to be unconstitutional in State v. Tennin, 674 N.W.2d 403 (Minn. 2004).  The state contends that because appellant did not raise this issue in the district court, it is waived on appeal.  “Generally, this court will not consider matters not argued and considered in the court below.”  State v. Cunningham, 663 N.W.2d at 10.  The court of appeals may, however, “review any . . . matter as the interests of justice may require,” even if not raised below.  Minn. R. Crim. P. 28.02, subd. 11; see State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004).            

The Rules of Criminal Procedure state:

The court, if after previously finding that the defendant is eligible for public defender services, determines that the defendant now has the ability to pay part of the costs, may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of the appointed public defender. 

 

Minn. R. Crim. P. 5.02, subd. 5 (emphasis added).  Minn. Stat. § 611.20, subd. 2 (2004) also provides for partial reimbursement for public defender services if the district court determines that a defendant is able to make partial payment.  In the interests of justice, we reverse the ordered copayment but remand to the district court for a determination of defendant’s ability to reimburse the public defender according to the rule and statute.

            Affirmed in part, reversed in part, and remanded.