This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-567

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy R. Hanson,

Appellant.

 

 

Filed July 31, 2007

Affirmed

Halbrooks, Judge

 

 

Washington County District Court

File No. K7-05-3366

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Doug Johnson, Washington County Attorney, Michael Hutchinson, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)

 

John M. Stuart, State Public Defender, Jessica Godes, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

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

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from his conviction of gross-misdemeanor harassment and first-degree burglary, appellant argues that the evidence was insufficient to support the convictions.  In addition, appellant argues that the district court committed plain error in allowing the state to call the victim for the sole purpose of impeaching her with her statements to the 911 operator, the police, and in her affidavit in support of an order for protection (OFP).  We affirm.

FACTS

            Appellant Timothy R. Hanson and Elizabeth Sheridan were involved in a romantic relationship and lived together for approximately five months before the relationship ended.  Sheridan changed the locks after appellant moved out, but she hid the spare key in the same location.  On May 18, 2005, appellant drove to Sheridan’s neighborhood and parked his car on an adjacent street so that it was not visible from Sheridan’s home.  Appellant stood on Sheridan’s driveway for several minutes and then opened the garage door.  As it grew dark, a neighbor noticed that lights were on in the home, but Sheridan had yet to return.  When Sheridan got home, she saw appellant, who appeared to be under the influence of alcohol, coming out of her home.  Nonetheless, she invited him back inside.

            When Sheridan saw an empty bottle of liquor on the living room floor, she “went absolutely hysterical” because appellant’s alcohol consumption had been a reason for their break-up.  She demanded that appellant leave; but he refused and slapped Sheridan on the left side of her face.  Sheridan pushed appellant out the door and locked it.  She immediately called 911 on her cell phone and reported that “I came home, my door was wide open, and he attacked me” by “slapp[ing] me across the face.”  She described the slap as “really hard.”  Sheridan denied needing medical attention, but as she was crying, she said, “I just need help.”  Sheridan also told the 911 operator that appellant was “freaking out, he’s banging on the windows . . . [m]y living room windows” and “banging on the door.”

            Sheridan remained visibly frightened when the police arrived at her home.  She told police that appellant had rifled through the house, opening her dresser drawers and pulling out her clothes and taking seven $20 bills from a desk drawer.  Officer Clausen observed that all the drawers in the bedroom furniture were open and clothing was on the floor.  When searched upon entering jail, appellant had seven $20 bills in his pockets.  Sheridan also told the police that appellant “got mad, turned around and struck her with his right hand on the left side of her face.”  Sheridan’s subsequent written statement to police corroborated these facts.  And Officer Clausen, who responded to Sheridan’s 911 call, noticed that the left side of Sheridan’s face was “slightly red.”     

            Soon after the 911 call, Officer Foucault found appellant walking less than a mile away from Sheridan’s home.  Officer Lindeen arrived shortly afterward from Sheridan’s home.  Appellant smelled of alcohol and was weaving slightly as he walked but otherwise seemed normal.  Appellant was charged with first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2004); second-degree burglary under Minn. Stat. § 609.582, subd. 2(a) (2004); domestic assault with intent to cause fear in another of immediate bodily harm under Minn. Stat. § 609.2242, subd. 1(1), (2) (2004); and two counts of harassment and stalking under Minn. Stat. § 609.749, subd. 2(a)(1), (3) (2004).

            Two days later, Sheridan went to the Harriet Tubman Alliance and spoke to someone about the incident.  She completed an affidavit in support of an order for protection (OFP) against appellant that restated the information that she had told the police.  Sheridan’s affidavit also stated that she had tried to lock herself in the bathroom but that appellant had “pushed his way in.”  The district court granted the OFP.

            Sheridan subsequently wrote a letter to the county attorney and telephoned Officer Clausen to correct what she then stated were inaccuracies in the police report.  She stated that she was “hysterical” upon seeing appellant intoxicated in her home but that he is otherwise welcome.  Because she was “hysterical,” Sheridan stated that she jumped to the conclusion that appellant had opened her dresser drawers and threw her clothes on the floor.  Instead, she reported that only the bathroom rugs were in disarray as a result of appellant.  Similarly, she reported that she found the missing $140 beneath furniture in the living room.  She noted that appellant “would never, ever steal property, nor do I feel he ‘assaulted’ me.  He was so intoxicated he was falling over, and he did bump me as I was hanging onto him.”  At trial, Sheridan testified consistently with this later version of events.

            The jury found appellant guilty of first-degree and second-degree burglary and gross-misdemeanor harassment but acquitted him on the stalking and domestic-assault charges.  At sentencing, the district court vacated the second-degree burglary verdict as a lesser-included offense of first-degree burglary and granted appellant’s motion for a downward dispositional departure based on appellant’s lack of criminal convictions and his general peacefulness.  Appellant’s 48-month guidelines sentence for burglary was stayed, and he was placed on probation for 20 years with certain conditions, including a 180-day jail term with work release, a $700 fine, completion of an anger-management and domestic-abuse assessments, and treatment for alcohol abuse.  On the harassment conviction, the district court sentenced appellant to 365 days in jail, with all but 180 days suspended, and a fine of $3,000, with all but $700 suspended, concurrent with the burglary sentence.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that the evidence was insufficient to convict on the first-degree burglary charge because appellant entered the residence with Sheridan’s consent and that the state failed to prove beyond a reasonable doubt that he entered Sheridan’s home with the intent to commit the crime of harassment.  The state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In considering a claim of insufficient evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the jurors to reach the verdict that they did.  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 on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            The factfinder has the exclusive function of judging witness credibility and weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the factfinder’s credibility determinations.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  This 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). 

            In addition to time and jurisdictional elements, the elements of first-degree burglary are (1) the defendant entered or remained within a building without the consent of the person in lawful possession; (2) “the defendant assaulted a person within the building or on the building’s appurtenant property”; (3) the defendant entered the building with the intent to commit the crime of harassment.  10A Minnesota Practice, CRIMJIG 17.04 (2006).  “It is not necessary that the intended crime actually was completed or attempted, but it is necessary that the defendant had the intent to commit that crime at the time that the defendant” either entered or remained in the building.  Id.  “Whether the defendant intended to commit the crime must be determined from all the circumstances, including,” the manner and time of entry or remaining in the building, “the nature of the building and its contents,” any things the defendant may have had with them, “and all other evidence in the case.”  Id.

            Consent requires more than mere admittance into the building by its owner.  An owner may limit consent to certain times and conditions.  State v. Larsen, 442 N.W.2d 840, 843 (Minn. App. 1989) (affirming first-degree burglary because appellant brought a friend whom the owner prohibited from the cabin).  Consent may be withdrawn after entry.  Minn. Stat. § 609.581, subd. 4(c) (2004) (defining “[e]nters a building without consent” to include “to remain within a building without the consent of the person in lawful possession”).

            An assault is “[a]n act done with intent to cause fear in another of immediate bodily harm or death; or . . . [t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2004). 

            Appellant was convicted of gross-misdemeanor harassment under Minn. Stat. § 609.749 (2004).  As the state accurately argues on appeal, when prosecuting under that statutory section, the state does not have to prove a defendant’s specific intent.  Minn. Stat. § 609.749, subd. 1a.

            Sheridan testified that appellant had been upset with her because she had invited guests, including a male guest, to her house the preceding weekend.  Sheridan and appellant had argued about the invitation.  She did not want to talk about it then, but she expected that the issue would come up again.  Appellant knew that Sheridan did not want to discuss the matter.  Nonetheless, appellant drove to Sheridan’s home on May 18 and parked his car about 100 yards away, in a location that Officer Foucault testified was not visible from Sheridan’s home. 

            A neighbor, Alexander Holt, testified that he saw appellant standing outside Sheridan’s home that evening.  Holt knew that Sheridan was not home because, after appellant opened the garage, Holt saw that it was empty.  Similarly, lights were on inside the house although there was no indication that Sheridan herself was home.  Moreover, appellant walked to the end of the driveway, peered left and right as if “expecting someone to come home.” 

            Further, Sheridan had established ground rules that appellant visit her only when he was sober.  That night, he was not.  The presence of alcohol limited Sheridan’s consent to appellant’s presence in her home.  And appellant refused to leave after Sheridan asked him to leave. 

Moments after being struck by appellant, Sheridan reported that “tonight he smacked me across the face really hard.”  Officer Clausen, who responded to the 911 call, saw a red mark on the left side of Sheridan’s face that he later testified was consistent with being slapped from the right hand of a facing aggressor.  When Sheridan subsequently sought to correct the police report, she stated that appellant bumped her as he tripped on a coffee table.  Sheridan said then that appellant was “very intoxicated.”  But Officers Lindeen and Clausen testified that they first saw appellant shortly after the 911 call and that he had only a slightly weaving gait.  Viewing the verdict in the most favorable light, there is sufficient evidence in the record for the jury to have convicted appellant of first-degree burglary and gross-misdemeanor harassment. 

II.

            After failing to object at trial, appellant now argues that the district court committed plain error by allowing the prosecutor to call Sheridan as a witness for the sole purpose of impeachment.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

            When a defendant fails to object to the admission of evidence, our review is for plain error.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “The plain error standard requires that the defendant show:  (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740).  “An error is plain if it was clear or obvious.”  Id. at 688 (quotations omitted).  “An error affects substantial rights if the error is prejudicial—that is, if there is a reasonable likelihood that the error substantially affected the verdict.”  Id.  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. at 686 (quotation omitted).

            The prosecution may not seek to admit prior inconsistent statements that are inadmissible hearsay through impeachment of its own witness.  State v. Dexter, 269 N.W.2d 721, 721 (Minn. 1978).  “‘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). 

            There are four statements that Sheridan made that are at issue here:  (1) the 911 call; (2) her oral statements to Officer Clausen; (3) her handwritten statement to Officer Clausen; and (4) her affidavit in support of the OFP.  All four statements are consistent in their description of appellant’s conduct.  But Sheridan retracted that account of the incident prior to trial by contacting the county attorney and Officer Clausen approximately two weeks later to advise them that the police report contained inaccuracies.  At that time, Sheridan stated that appellant had not slapped her, come by her house at night ringing her doorbell, repeatedly called her in an effort to get back together, taken her money, or rummaged through her bedroom dresser on the night of the incident. 

Appellant argues that Sheridan’s statements in the 911 call and to responding police officers are inadmissible hearsay.  But prior witness statements are 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 . . . a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

 

Minn. R. Evid. 801(d)(1)(D).  Similarly, exceptions to the hearsay prohibition include 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.”  Minn. R. Evid. 803(2). 

            At trial, the prosecution played a recording of the 911 call that Sheridan made.  On the tape, Sheridan was crying when reporting that appellant had hit her and was then pounding on the windows of her home to get back in.  Sheridan’s emotional state indicated that she was under the stress of a startling event when she was reporting it.  Therefore, we conclude that the 911 recording was admissible as an excited utterance.

            Appellant also disputes the admissibility of Sheridan’s oral statements to the officers who arrived while Sheridan was on the phone to the 911 operator.  But those statements are fairly characterized as descriptions or explanations of an event made while Sheridan was perceiving the event or immediately thereafter.  The officer who interviewed Sheridan described her as “scared.” As a result, we conclude that those statements were also admissible as excited utterances. 

            As a third matter, appellant argues that Sheridan’s written statement to the police is inadmissible hearsay.  Sheridan wrote the statement later on the day of the incident, when she appeared to be calm.  The state asserts that this statement is admissible under Minn. R. Evid. 803(24).[1]  Hearsay evidence may be admitted if

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 

Minn. R. Evid. 803(24).  In evaluating whether this catchall exception to the hearsay rule is appropriate, Minnesota appellate courts have relied on four factors: (1) whether “there is no confrontation problem presented by the admission of the statement as substantive evidence, since [the witness] testified, admitted making the prior statement, and was available for cross-examination by defense counsel”; (2) whether “there [is] no real dispute over whether [the witness] made it or over what it contained”; (3) whether “the statement was against [the witness’] penal interest, a fact that increases its reliability”; and (4) whether “the statement was consistent with all the other evidence the state introduced.”  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).

            First, Sheridan admitted writing the statement and testified about it; appellant had the opportunity to cross-examine Sheridan about it.  Second, Sheridan’s authentication of the document eliminates any dispute as to whether Sheridan made the statement.  Third, although no penal interests are implicated here, Sheridan’s written statement is consistent with the other evidence provided by the state.  Therefore, it could be admitted under the catchall exception. 

            Finally, appellant claims that the affidavit that Sheridan prepared in support of the OFP is inadmissible hearsay.  In requesting an OFP, “[a] petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.”  Minn. Stat. § 518B.01, subd. 4(b) (2004). 

            A prior inconsistent 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 . . . inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding . . . .”  Minn. R. Evid. 801(d)(1)(A).  Here, Sheridan testified at trial with opportunity for cross-examination.  The affidavit was inconsistent with Sheridan’s trial testimony.  As the affidavit is a prior inconsistent statement, given under oath, to which Sheridan was available for cross examination, it is admissible as nonhearsay.  We conclude that the district court acted within its discretion in its admission of these statements.

            Affirmed.