Hubert H. Humphrey III, Attorney General, Paul Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Wyman A. Nelson, Wright County Attorney, Wright County Government Center, 10 Second Street N.W., Buffalo, MN 55313-1193 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Huspeni, Judge.

Appellant contends the trial court abused its discretion by allowing the state to introduce its own witness's prior inconsistent statements. Appellant asserts that the trial court erred by failing to give the jury an immediate limiting instruction regarding the victim's testimony at trial and her prior inconsistent statements. Appellant argues that the evidence was insufficient to sustain appellant's conviction of third-degree assault.

The trial court's admission of the prior inconsistent statements was proper because the statements were admissible under the residual hearsay exception. The trial court's failure to give the jury an immediate limiting instruction does not entitle appellant to a new trial because appellant failed to request such an instruction at the time of the victim's testimony and because the failure did not involve fundamental law. Finally, the evidence presented to the jury was sufficient to support appellant's conviction of third-degree assault. We affirm.

In oral and written statements given the night of the incident, Arndt stated that, during the confrontation, Wikan hit her several times. Arndt said that Wikan grabbed her around the waist from behind, walked her over to the patio door, and "literally launched" her out the door.

Arndt then ran to her neighbor's house. The neighbor and her daughter took Arndt to the hospital. En route, Arndt said to her neighbor, "Why would he do this to me. I can't believe it. * * * He broke my arm." Both the neighbor and her daughter saw Wikan and Arndt fighting and saw Wikan pick up Arndt, but did not see him push her out the door.

Dr. Brown, who examined Arndt at the hospital, testified that, during the course of treatment, Arndt told him that Wikan had pushed her out the trailer door. Dr. Brown testified that the most common cause of a fractured wrist of Arndt's type is a fall on an outstretched hand. Brown testified that he administered Demorol to Arndt, and that Demorol commonly alters people's moods and thinking.

Wikan was charged with third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (1996). At trial, Arndt's testimony differed from her prior statements. Arndt testified that, following her attack on Wikan, he got angry and chased her. Arndt ran out of the bedroom and broke the door off its hinges. Arndt stated that they continued fighting and, at one point, Wikan briefly picked her up off the ground. Arndt said that when she eventually took a step out the patio door, appellant pried her hands off the door and shut the door. Arndt testified that she then tripped and broke her wrist. Arndt testified that her prior written statements differed from her trial testimony because she was confused the night of the incident due to the fact that she had not taken her prescribed Ritalin and had received an injection of Demorol at the hospital. At the conclusion of the trial, Wikan was found guilty and sentenced to 18 months in jail.

Wikan argues that the trial court erred by allowing the state to introduce Arndt's prior inconsistent statements from the night of the incident. Generally, rulings on evidentiary matters rest within the sound discretion of the trial court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978).

A problem arises when a prosecutor calls a witness whose prior statement implicated the defendant, but whose testimony at trial is in defendant's favor. Oliver v. State, 502 N.W.2d 775, 777-78 (Minn. 1993) (citing State v. Ortlepp, 363 N.W.2d 39, 42-43 (Minn. 1985)). If the prosecutor uses the witness's prior testimony to impeach the witness, there is a chance that the jury will erroneously consider the prior statement as substantive evidence, even if properly instructed. See State v. Dexter, 269 N.W.2d 721, 721 (Minn. 1978) (evidence of prior inconsistent statements, not otherwise admissible, may not be admissible under "guise of impeachment"). This problem does not arise, however, if the prior statement is admissible as substantive evidence. See Oliver, 502 N.W.2d 778 (citing Ortlepp, 363 N.W.2d at 43) (providing that Dexter problem is not present if prior statement is admissible as substantive evidence).

Arndt's prior statement is admissible as substantive evidence under the residual hearsay exception, Minn. R. Evid. 803(24). That rule provides that a hearsay statement is admissible

in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803.

Ortlepp, 363 N.W.2d at 44.

Arndt's prior inconsistent statements possess the requisite "guarantees of trustworthiness" under rule 803(24). First, admission of the statement does not present a confrontation problem, because Arndt testified at trial, admitted making the prior statement, and was available for cross-examination. Oliver, 502 N.W.2d at 778; Ortlepp, 363 N.W.2d at 44.

Second, Arndt claims that her earlier statement was unreliable because at that time she was irrational from not having taken her prescribed Ritalin and was confused from the Demorol she received at the emergency room. Officer Gregg, however, testified that Arndt did not appear confused when he took her oral statement at the hospital or several hours later when he picked up her written statement. See Oliver, 502 N.W.2d at 778 (evidence that declarant did not appear under influence of drugs at time he made prior statement successfully rebutted declarant's claim that he had been on drugs at that time).

Third, Arndt's prior statements inculpating Wikan were reliable because they were against her interest due to their relationship. Oliver, 502 N.W.2d at 778 (inculpatory statement made against declarant's interest "dramatically increases its reliability"); see also State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987) (determining declarant's prior statements inculpating defendant were reliable where they were against her interest because she was hostile to prosecutor and supportive of accused), review denied (Minn. Mar. 18, 1987). Fourth, Arndt's prior statements were reliable because they were consistent with the other witnesses' testimony. Ortlepp, 363 N.W.2d at 44; Oliver, 502 N.W.2d at 778. Arndt's prior statements were corroborated by her neighbor's testimony that Arndt told her, "He [Wikan] broke my arm," and Dr. Brown's testimony that Wikan broke her arm when he pushed her out the door. Fifth, the trustworthiness and reliability of Arndt's prior statements are enhanced because they were made within hours of the assault. See 2 John W. Strong, et al., McCormick on Evidence § 251, p. 119 (4th ed. 1992) ("The prior statement is always nearer and usually very much nearer to the event than is the testimony. The fresher the memory, the fuller and more accurate it is.").

Based upon these factors, Arndt's prior statements are properly admissible under the residual hearsay exception.

If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.

DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925), quoted in Oliver, 502 N.W.2d at 778-79 n.4 and Ortlepp, 363 N.W.2d at 44 n.1. The trial court did not abuse its discretion by allowing the state to introduce Arndt's prior inconsistent statements.

2. Immediate limiting instruction.

Wikan argues that the trial court's failure to give the jury a limiting instruction at the time of Arndt's testimony entitles him to a new trial. He contends that the trial court's limiting instruction at the end of trial was untimely and confusing.

Because we have concluded that Arndt's testimony was, in fact, admissible as substantive evidence under the residual hearsay exception, we need not address Wikan's argument that there was not a limiting instruction. A limiting instruction would have been necessary only if admissibility of Arndt's tetimony was limited to impeachment only.

3. Was the evidence sufficient to support the jury verdict?

Wikan alleges the evidence was insufficient to support the guilty verdict because the state failed to prove beyond a reasonable doubt that he acted with the requisite degree of intent for third-degree assault. See State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980) (Fourteenth Amendment of United States Constitution requires state to prove every element of offense beyond reasonable doubt).

When a party challenges the sufficiency of the evidence, appellate review is limited to analyzing the record to determine whether the evidence, "when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume "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). Moreover, the determination of the credibility, reliability, and weight of the witness's testimony rests with the jury. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Wikan's conviction of third-degree assault requires that appellant have committed an "assault" and the victim suffered "substantial bodily harm." Minn. Stat. § 609.223, subd. 1. It is undisputed that Arndt suffered "substantial bodily harm"; thus our inquiry is limited to whether an assault occurred. An "assault" is:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) The intentional infliction of or attempt to inflict bodily harm upon another.

Minn. Stat. § 609.02, subd. 10 (1996). The phrase "with intent to" means that the actor had a purpose to do the thing or cause the result, or believed that the act, if successful, would cause that result. Minn. Stat. § 609.02, subd. 9(4).

The evidence presented to the jury, viewed most favorably to the conviction, shows that Wikan had a purpose to push Arndt out the door. Arndt's neighbor and Dr. Brown testified that Arndt told them that Wikan pushed her out the door and caused her injuries. Moreover, Arndt told police on the night of the incident that Wikan "literally launched" her out the door. Based on this testimony, the jury could have inferred that Wikan intended to harm Arndt by pushing her out the door. See State v. Lundstrom, 285 Minn. 130, 140, 171 N.W.2d 718, 724-25 (1969) (jury may determine intent from outward manifestations and may infer that person intends consequences of his or her action despite assertions to contrary). Therefore, the state did not fail to prove beyond a reasonable doubt that Wikan acted with the requisite degree of intent for the crime of third-degree assault.

Affirmed.