Filed July 25, 2006

Affirmed

Randall, Judge

Mille Lacs County District Court

File No. K6-04-730

Michael Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Janice Kolb, Mile Lacs County Attorney, Courthouse Square Building, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

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

RANDALL, Judge

On appeal from conviction for first-degree criminal sexual conduct and assault, appellant argues that the district court abused its discretion in (a) admitting evidence of two prior incidents of abuse against the victim as relationship evidence; (b) admitting the victim’s statement to police as substantive evidence under the residual hearsay exception; (c) allowing the state to have the victim read her prior inconsistent statement; (d) admitting the victim’s statement to her mother as an excited utterance; (e) allowing references to appellant being in jail; and (f) failing to properly redact the victim’s statement to police. We affirm.

FACTS

On June 15, 2004, Mille Lacs Tribal Police Officer Anthony Erholtz investigated a report concerning an SUV that was rolled on its side in a ditch. Because both of the vehicle’s air bags had been deployed and there was extensive damage to the vehicle, Officer Erholtz was concerned that the driver was seriously injured. During Officer Erholtz’s investigation, Joycelyn Shingobe stopped at the scene and informed the officer that the SUV belonged to her and that she had left the vehicle at the home of her daughter, L.B. Erholtz then advised Shingobe to go to L.B.’s house to check on her well-being.

After talking with Erholtz, Shingobe drove to L.B.’s house, which was about half-a-mile from the scene of the accident. When she arrived at the house, Shingobe heard L.B. call for her from the bedroom. Shingobe then walked into the bedroom where she observed L.B. lying on the bed with her fiancé Michael Landon (appellant). Shingobe also noticed that appellant had his arm around L.B and that L.B.’s face was swollen and she had two black eyes. According to Shingobe, L.B. said that “[appellant] beat me up all night long, kept kickin’ me.”

Shingobe escorted L.B. out of the house, where L.B. sat in a truck and waited for the authorities. Mille Lacs County Deputy Sherriff Bradley Barnes arrived shortly thereafter, and he observed that L.B.’s face was swollen and her eyes were black and blue. Deputy Barnes then went into the house to look for appellant, but was unable to locate him. While in the house, Deputy Barnes observed that the bedroom was messy, there were no sheets on the bed, and there was a red substance on the bed and on the pillow case. Deputy Barnes also located a vegetable peeler between the mattress and box spring.

L.B. was taken to the hospital where Dr. Patti Hook, the treating physician, performed a sexual assault exam on L.B. According to Dr. Hook, the test results indicated that L.B. was sexually assaulted because there were injuries to her vaginal area. Dr. Hook also testified that she was informed by L.B. that she had been beaten with fists and her assailant forced himself on her and sexually assaulted her all night.

While she was in the hospital, L.B. gave a tape-recorded statement to police describing the events that caused her injuries. A few days later, on June 18, L.B. also provided a statement to Investigator Jason LaSart. L.B. stated that on the evening of June 14, 2004, she was in an accident involving an SUV that she had borrowed from her mother. L.B. stated that she walked home from the scene of the accident, and when she arrived home, appellant accused her of cheating on him, and the two began to argue. According to L.B., appellant repeatedly punched and kicked her, threatened to kill her, and threw lit matches at her. L.B. also stated that appellant inserted a sharp object into her vaginal area and then raped her. L.B. further stated that when she attempted to get away, appellant would grab her and continue to assault her.

Appellant was arrested and charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (2002), and second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002). Appellant pleaded not guilty, and a jury trial was held in December 2004. At trial, L.B. testified that she loved appellant, that she was not afraid of him, and that they planned to marry. L.B. also testified that she had never been raped by appellant and that she concocted the entire statement she had given to police. L.B. also testified that she was very intoxicated on the night of the alleged assault and that she had very little recollection of what had actually occurred.

Because she claimed that she had no recollection of the night of the alleged assault, the state was allowed to require L.B. to read aloud extensive portions of her statement to Investigator LaSart. The district court also allowed portions of L.B.’s audio-taped statement given to Investigator LaSart to be played to the jury. The state was allowed to question L.B. about two prior incidents involving appellant. L.B. testified that in August 2003, she and appellant got into an argument at a casino. According to L.B., the two were hitting each other, and she got a bloody nose when she was trying to go out the door. L.B. also testified that the couple was involved in an argument on September 30, 2003. L.B. testified that they were both drunk and that she somehow ended up bleeding from her nose.

The jury found appellant guilty of three counts of criminal sexual conduct in the first-degree and one count of assault in the second-degree. Appellant was sentenced to 146 months on one count of first-degree criminal sexual conduct, to be served consecutively to a previous assault conviction. This appeal followed.

D E C I S I O N

Appellant argues that the district court made various erroneous evidentiary rulings that deprived him of his right to a fair trial. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

A. Prior Bad Acts

Appellant argues that the district court erred by permitting the state to question the victim about two instances of prior abuse by appellant against her. The district court admitted the prior bad acts under Minn. Stat. § 634.20 (2002). This statute provides:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Id.

The Minnesota Supreme Court has stated that evidence presented under section 634.20 need not meet the heightened standard of clear and convincing evidence required for the admission of character or Spreigl evidence, but need only be more probative than prejudicial. State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). “[T]he admissibility of evidence under Minn. Stat. § 634.20 depends only on (1) whether the offered evidence is evidence of similar conduct; and (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Id. at 158.

Appellant claims that the prior incident evidence was improperly admitted because the state failed to prove that it was similar conduct to the charged offense. Under Minn. Stat. § 634.20, “‘similar conduct’ includes, but is not limited to, evidence of domestic abuse . . . .” Domestic abuse means (1) physical harm, bodily injury, or assault, (2) the infliction of fear of imminent physical harm, bodily injury, or assault, or (3) terroristic threats committed against a family or household member by a family or household member. Minn. Stat. § 518B.01, subd. 2(a) (2002).

Here, L.B. testified that in August 2003, she and appellant got into an argument at a casino. According to L.B., the two were hitting each other, and she got a bloody nose when she was trying to go out the door. L.B. also testified that the couple was involved in an argument on September 30, 2003. L.B. further testified that they were both drunk and that she somehow ended up bleeding from her nose. In each instance, the couple got into an argument that, at some point, resulted in L.B. getting hurt. Although L.B. never testified that appellant actually caused her injuries in the prior instances, the conduct is similar in that the couple engaged in violent arguments where appellant hit L.B. and L.B. was ultimately injured. See State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (stating that the evidence of similar prior conduct by the accused against the victim explains the context in which the charged assault occurred). The district court properly admitted the prior bad acts under Minn. Stat. § 634.20.[1]

Appellant also contends that the state attempted to introduce other evidence of prior bad acts without first obtaining permission from the court. Appellant contends that although he objected and the objections were sustained, “the state succeeded in tainting the trial with innuendo.”

The record reflects that the state attempted to introduce evidence of additional prior bad acts. But the record also shows that appellant objected to the admission of this evidence and the objections were sustained. Although the jury may have been able to infer from the bits-and-pieces of testimony that were elicited between objections that appellant was involved in prior misconduct involving L.B., the district court provided the standard cautionary instruction that the jury was not to consider appellant’s character. As the state points out, the “evidentiary objection and ruling is the way a trial is supposed to work.” We find no error on this issue.

Finally, appellant argues that the cautionary instructions provided by the district court were contradictory and confusing. But appellant failed to object to any of the cautionary instructions during trial, and, in general, has forfeited any challenge to the instructions on appeal. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (stating that generally, a failure to object results in a waiver of that issue for the purposes of appeal). Even if we were to consider the argument, appellant failed to demonstrate that the district court’s cautionary instructions were erroneous.

B. Prior Inconsistent Statement as Substantive Evidence

Appellant argues that the district court erred by admitting L.B.’s statement to Investigator LaSart under the residual hearsay exception. This exception permits admitting the statement of an available witness when the interests of justice and the general purposes of the rules of evidence are best served, the statement has circumstantial guarantees of trustworthiness equivalent to those in the established hearsay exceptions, and the statement is more probative on the point for which it is offered than any other evidence that could be obtained through reasonable efforts. Minn. R. Evid. 803(24).

The standard for determining whether the district court abused its discretion in admitting evidence under Rule 803(24) is declared in State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). State v. Plantin, 682 N.W.2d 653, 658 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). Under Ortlepp, the statement is admissible when: (1) there is no confrontation problem presented by the admission of the statement as substantive evidence because the declarant testifies, admits making the statement, and is available for cross-examination; (2) there is no dispute that the declarant made the statement or about what the statement contained; (3) the reliability of the statement is increased because it was made against the accomplice’s penal interest; and (4) the statement is “consistent with all the other evidence the state introduce[s], evidence which point[s] strongly toward” the guilt of the accused. 363 N.W.2d at 44.

Appellant concedes that the first two criteria were established. But appellant contends that the third factor is not met because L.B.’s statements were not against her penal interest.

The against-penal-interest factor may be satisfied if the declarant is hostile to the state and supportive of the defendant. Plantin, 682 N.W.2d at 659 (finding that a hearsay statement made by an assault victim who was trying to reconcile with her defendant boyfriend was against her “relationship” interests). Here, although L.B.’s statement was not against her penal interest, she was hostile to the state and supportive of appellant. The record reflects that appellant did not obey her subpoena for trial and had to be arrested to compel her appearance. L.B. testified that she loved appellant, that they were engaged to be married, and that she had engaged only in consensual sex with appellant. In her affidavit that was submitted into evidence, L.B. claimed she fabricated the statement she gave to police and that her injuries were caused by the accident involving the SUV. We find the third factor set forth in Ortlepp is established.

The statement is also consistent with other evidence introduced by the state. The jury saw pictures of L.B.’s injuries and heard the testimony of Shingobe and Dr. Hook about the injuries they observed to L.B. Although L.B. claimed that her injuries were sustained in the accident, her testimony failed to explain her vaginal injuries. The jury also heard the testimony of Deputy Barnes and observed the exhibits reflecting the state of the house. We find the fourth factor set forth in Ortlepp is satisfied. The district court properly admitted L.B.’s statement to Investigator LaSart as substantive evidence.

C. Impeachment with Prior Statement

Appellant also claims that he is entitled to a new trial because L.B. was improperly impeached with her prior inconsistent statement. But L.B.’s statement was also admitted as substantive evidence. “[I]f the prior statement is admissible as substantive evidence of the defendant’s guilt, then ‘the Dexter[2] problem is not present and defendant has no legitimate cause to complain.” Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (quoting Ortlepp,363 N.W.2d at 43). Appellant is not entitled to a new trial on this issue.

D. Excited Utterance

At trial, L.B.’s mother testified that when she walked into the room and saw L.B. lying on the bed, L.B. stated that “[appellant] beat me up all night long, kept kickin’ me.” Appellant argues that the district court erred in admitting this testimony under the excited utterance exception to the hearsay rule.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Generally, hearsay is inadmissible unless it qualifies under one of the exceptions provided in Minn. R. Evid. 803. One exception is for a statement that is made as an “excited utterance,” which is “[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.” Id. 803(2). When determining whether a statement is an excited utterance, district courts “consider all relevant factors including the length of time elapsed, the nature of the event, the physical condition of the declarant, any possible motive to falsify, etc.” State v. Daniels, 380 N.W.2d 777, 782-83 (Minn. 1986) (quoting Minn. R. Evid. 803(2) 1977 comm. cmt.).

Here, appellant argues that the testimony should not have been admitted under the excited utterance exception because the statement was not made close enough to the time of the actual event, i.e. the assault. We disagree. L.B.’s statement to police reflects that the assault continued throughout the night. Although there is testimony that L.B. fell asleep at some point in time, the record reflects that L.B. was actually unconscious. More importantly, the record reflects that the assault continued until shortly before Shingobe arrived at the house. L.B.’s statement indicates that when she regained consciousness, she attempted to leave the house, but appellant would not let her leave. The record also reflects that when L.B. tried to leave the house, appellant grabbed L.B. and dragged her back to the bedroom. The record further reflects that appellant held L.B. down on the bed until Shingobe arrived at the house. We conclude that the time lapse between the alleged assault and the statement L.B. made to her mother was short, and the statement qualifies as an excited utterance.

E. Evidence that appellant was in jail

Appellant contends that he is entitled to a new trial because the district court erroneously admitted irrelevant and prejudicial evidence that he has spent time in jail in the past. At trial, appellant objected to Officer’s Erholtz’s testimony that referenced the time appellant spent in jail, and the district court sustained the objection. Appellant also objected to the introduction of L.B.’s taped statement to Investigator LaSart that contained references to his jail time.[3] Although the district court admitted the statement under Rule 803(24), the court, in the presence of both counsel, went through the transcript of the entire tape-recorded statement, stating and marking the redactions to counsel as each was considered. The district court held that some references to jail were unavoidable because “[i]t’s such a part of the pattern of this particular offense.” The district court also provided a cautionary instruction regarding the inferences to the time appellant spent in jail. We note that those statements about jail “did not have to go in to give the state a fair trial,” but we cannot conclude that the district court abused its discretion by allowing the limited jail references. See Amos, 658 N.W.2d at 203 (stating that evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion).

F. Insufficiently Redacted Tape

Finally, appellant claims that he is entitled to a new trial because the district court failed to sufficiently redact the statement L.B. made to Investigator LaSart. The admission of some of the references, such as the jail references discussed above and the statement by Investigator LaSart that it was important for L.B. to be honest, are not erroneous. Also, the
questions inquiring about appellant’s past assaultive behavior toward L.B. are admissible under Minn. Stat. § 634.20. Finally, the district court went through the transcript of the entire tape-recorded statement in the presence of counsel and made the redactions while considering appellant’s objections. Appellant failed to demonstrate that the district court abused its discretion in redacting portions of L.B.’s statement.

II.

Appellant made numerous arguments in his pro se supplemental brief challenging mainly alleged inconsistencies in the trial testimony. Juries resolve credibility issues. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (stating that the jury determines the weight and credibility of witness testimony). Appellant presented no meritorious arguments in his pro se brief.

Affirmed.

[1] Because the district court properly admitted the prior incident evidence under section 634.20, we need not address appellant’s argument that the evidence was improperly admitted to show bias.

[2] See State v. Dexter, 269 N.W.2d 721 (Minn. 1978).

[3] The state argues that appellant waived the right to have the issue considered on appeal because appellant made no specific objection to the jail references contained in L.B.’s taped statement to Investigator LaSart. But appellant objected to the admission of the statement as a whole, and the jail references were specifically discussed during the district court’s consideration of whether to admit the statement. Appellant did not waive the issue.