Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

Appellant James Earl Thomas challenges his second-degree assault conviction, arguing that (1) the evidence at trial was insufficient to support the jury's verdict; and (2) the district court abused its discretion by not allowing the jury to review the transcripts of the victim's testimony, which the jury requested during deliberations. We affirm.

Estrada took her baby to her neighbor, Angie Goserud, and asked if she could stay there until things cooled down. Earlier, Goserud heard screams and crying coming from Estrada's apartment. Estrada told Goserud that Thomas beat her up and Goserud saw the welts on Estrada's face. Goserud also stated that Estrada told her that while she ran to the phone to call the police, Thomas picked up a knife in the kitchen sink and ran after her. Estrada screamed "no, no, no," but he held the knife to the side of her face, grabbed her by the neck, and told her to shut up and hang up the phone. Estrada did not want Goserud to call the police because she was afraid that Thomas would kill her if she caused him to go to jail. Goserud testified that Estrada told her that she thought she was going to die. Goserud called the police.

Police officers Lori Hayne and Terrance Erdman arrived at the scene and went back to the apartment with Estrada. Estrada pointed out the steak knife and told them that Thomas used it to assault her. The officers were called back to the apartment after Thomas returned and they arrested him without incident.

The 911 tape recording was played for the jury and it included the statement that Thomas held a knife to Estrada's throat. Thomas did not testify in his own defense. The prosecutor introduced a letter he received, written by Estrada. The letter was entered without objection. In the letter, Estrada claimed that Thomas did not use a knife and did not hit her, which was contrary to what she told Goserud and the police on the evening of the incident.

Thomas was convicted of second-degree assault following a jury trial. He was sentenced to the presumptive sentence of 65 months. This appeal followed.

Thomas concedes that all the elements of the second-degree assault were proven other than that he used a dangerous weapon. He even concedes that there was evidence that he used a dangerous weapon, but claims the evidence is insufficient to support the verdict since the evidence was only hearsay.

While Thomas does not claim that admission of the statements of Estrada as excited utterances was error, he claims the statements are not sufficient to support the finding that he used a dangerous weapon. The United States Supreme Court has upheld a criminal assault conviction where the only evidence of identification of the perpetrator was the hearsay statement of the victim to an investigator shortly after the crime. United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988) (victim identified defendant to investigator, but at trial victim could not remember whether the defendant was the one who assaulted him or that he had identified the defendant to the investigator). The only evidence in that case that Owens was the perpetrator was the hearsay report by the investigator that the victim had identified the defendant. Id. The Supreme Court held that the hearsay evidence was sufficient to support the conviction. Id.

Like the situation in Owens, Thomas had the opportunity to cross-examine the victim, Estrada. Thomas introduced Estrada's letter to the prosecutor in which she denied that a knife was used. Although the victim's trial testimony and letter impeached the properly admitted excited utterance, the jury was entitled to choose which statement to believe.

Reviewing the evidence in the light most favorable to the state, the excited utterance, in which Estrada claimed Thomas had assaulted her with a knife, was sufficient for the jury to reasonably conclude that Thomas was proven beyond a reasonable doubt to be guilty of second-degree assault.

The jury requested the testimony of Estrada, which was 20 of the 59 pages of transcript testimony, all of which occurred on the day before the jury started deliberating. The district court did not abuse its discretion by determining that the jury's request for more than one-third of the testimony, only a day after trial, was not reasonable.

Additionally, Thomas cannot show prejudice to his case because all the facts in Estrada's testimony that were favorable to him were also contained in more definite form in the letter she wrote to the prosecuting attorney before the trial. In the letter she claimed that Thomas did not hit her, assault her with a knife, or threaten her. Given that the jury had the letter to review, there is no evidence in the transcript of Estrada's testimony that was critical to his defense. Because we agree with the district court's assessment of the reasonableness of the jury's request, and because denying the jury's request was not prejudicial, the district court did not abuse its discretion by denying the jury a transcript of Estrada's testimony.

Affirmed.