Opinion
A17-0525
01-16-2018
State of Minnesota, Respondent, v. Gerald Robinson, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Brian J. Melton, Clay County Attorney, Lori H. Conroy, Assistant County Attorney, Moorhead, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2016). Affirmed
Kirk, Judge Clay County District Court
File No. 14-CR-16-2415 Lori Swanson, Attorney General, St. Paul, Minnesota; and Brian J. Melton, Clay County Attorney, Lori H. Conroy, Assistant County Attorney, Moorhead, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges his conviction for felony domestic assault under Minn. Stat. § 609.2242, subd. 4 (2014), arguing that (1) there was insufficient evidence in the record for the jury to conclude that he and the victim were in a significant romantic or sexual relationship, and (2) the district court erred in admitting both objected-to and unobjected-to hearsay, prejudicially impacting appellant's substantial rights. We affirm.
FACTS
Around March 2016, appellant Gerald Robinson and victim C.P. met at a church support group, where C.P., a recovering alcoholic, worked and where appellant was a client. At the time, C.P. had been sober for 14 years and was living with a man described as her long-time partner, with whom she had previously been in a romantic relationship. Because of C.P.'s position, C.P. was not supposed to date appellant. When their relationship turned romantic and became sexual, they kept it a secret. In June 2016, C.P. relapsed, and C.P. and appellant rented a hotel room together to drink. C.P. told the man that she lived with that she was staying with her sister. C.P. told her sister about appellant, that she was attracted to him, and that they were spending time together.
In July 2016, C.P. and appellant rented a hotel room in Moorhead for five days "to be together" and drink. On the morning of July 12, 2016, C.P. called her sister from the hotel room. Sister testified that C.P. seemed drunk and said that "he was mad at her" and that "he want[ed her] to go get some more beer." C.P. did not say where she was. Appellant did not object to this testimony. Sister testified that C.P. did not call her again and did not answer any of sister's subsequent calls. Sister became worried and called C.P.'s daughter, and her own daughter, C.P.'s niece, to inform them about C.P.'s call.
C.P.'s daughter and niece testified at trial about C.P.'s call to her sister and repeated C.P.'s "he's mad at me" statement. Niece said that she believed "he" was appellant. Appellant did not object to daughter's testimony, but did object to niece's testimony, which the district court overruled. C.P.'s niece and daughter testified that they knew of appellant and that they were made aware that C.P. was spending time with him, and niece said that she was worried about it. C.P.'s daughter also testified that C.P. had been missing work and had not called her or posted on Facebook, which was out of character for her. The family became concerned. C.P.'s niece called the police on July 13 to report that the family had not heard from C.P. in over 24 hours and that her phone was shut off.
On the morning of July 14, C.P.'s niece filed a missing person's report. The officer who took the report testified, without objection, that niece was concerned for her aunt's safety and well-being based on C.P.'s call to her sister. C.P.'s niece also posted on Facebook that C.P. was missing, and a family friend contacted niece on July 14 to inform her that C.P.'s vehicle was at a hotel in Moorhead. Niece called the police and C.P.'s niece, daughter, and the family friend went to the hotel to wait for a police officer to arrive.
After obtaining the correct room number for appellant from hotel staff, a police officer knocked on the hotel room door, and a male voice asked who was there. After learning that it was the police, the male gave no further response. C.P.'s daughter and the family friend tried to make contact with C.P. inside the room, and C.P. soon appeared at the door and stumbled out. Appellant was also inside the hotel room. The officer testified that C.P. appeared scared and relieved that people were there to help her. Based on his training and experience, the officer believed that C.P. was impaired by alcohol or drugs.
The officer and other witnesses observed that C.P. had severe swelling and lacerations on the left side of her face and a goose-egg sized bruise on her left temple. C.P. could barely stand, was partially undressed, and appeared to need medical attention. C.P.'s niece testified that C.P. made statements indicating that appellant hit her and that she was hurt. Niece also testified that while waiting for an ambulance in the hotel lobby, C.P. was in and out of consciousness, but that C.P. made statements indicating that appellant hit her and that he was going to kill her, and that the officer stepped in to reassure C.P. she was safe. The officer testified that C.P. kept repeating "he hurt me" and "I used to love him." The family friend also testified that C.P. said, "I don't want to be hurt." C.P.'s daughter testified that, at the hospital, C.P. was scared and did not want to be left alone, and that C.P. made statements indicating that appellant had hit her repeatedly and was mad at her, but that she didn't know why he did it. Appellant objected to some of the testimony about C.P.'s statements at the hotel and at the hospital, which the district court overruled.
The district court sustained one objection to C.P.'s niece's testimony about C.P.'s statement, "Yep, yep, he hit me." But C.P.'s niece and other witnesses were allowed to testify about other statements made by C.P. indicating that appellant hit her.
On July 15, a police officer took a recorded statement from C.P., in which she said that she remembered meeting appellant at the hotel with "booze" but that she then blacked out. C.P. said that when she woke up she was injured, but she could not remember what happened, and that she blocked it out because she has PTSD. When prompted by the officer with further questions, C.P. acknowledged or stated that appellant had punched and kicked her, pulled her by her hair, and "toss[ed her] around like a dog." C.P. named appellant, and told the officer that she had been trying to help appellant, that they had an ongoing sexual relationship, and that she was "falling in love" with him. Audio of the July 15 recording and photographs of C.P.'s injuries were admitted into evidence without objection.
At the time of trial in November 2016, C.P. testified that she had known appellant for eight months. During her testimony, C.P. attempted to minimize her relationship with appellant in July 2016, but she also admitted that she was now in love with appellant and did not want any harm to come to him, and said that she only testified against him because she was subpoenaed. C.P. testified that she has no memory of what happened at the hotel with appellant, and that she did not recall seeing or speaking to law enforcement on July 14 or 15 or to anyone else at the hotel or hospital. C.P. testified that she suffers from PTSD and blocks things out as a coping mechanism.
But C.P. also testified that in July 2016 she was not in a relationship with another man, that she was in an ongoing sexual relationship with appellant, and that they cared about each other. C.P. testified that they were at the beginning of their relationship at that time and that they had to keep it secret because of her job. C.P. said that they got a hotel room to spend time together and drink. In addition, C.P. acknowledged that the voice on the July 15 recording was hers and that she gave those responses to the officer, but then added, "except I was totally drunk, high, messed up . . . it's not me," and that her responses were "absolutely not" the truth.
The jury found appellant guilty of domestic assault. The district court sentenced appellant to 18 months in prison, stayed for five years, and placed appellant on supervised probation with conditions. Appellant challenges his conviction.
DECISION
I. There was sufficient evidence in the record for the jury to conclude that C.P. and appellant were in "a significant romantic or sexual relationship."
In considering a claim of insufficient evidence, this court's review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in the 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 assumes 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). When a sufficiency-of-the-evidence claim involves the question of whether a defendant's conduct meets the statutory definition of an offense, it is a question of statutory interpretation that an appellate court reviews de novo. See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).
To find appellant guilty of domestic assault pursuant to Minn. Stat. § 609.2242, subd. 4, the jury had to conclude beyond a reasonable doubt that appellant assaulted a "family or household member" under section 609.2242, subdivision 1 (2014). A "family or household member" includes "persons involved in a significant romantic or sexual relationship." Minn. Stat. § 518B.01, subd. 2(b)(7) (2014). To establish a "significant romantic or sexual relationship" the factfinder "shall consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since the termination." Id.
Appellant argues that there was insufficient evidence in the record to support the jury's conclusion that C.P. and he were engaged in a "significant romantic or sexual relationship." Appellant emphasizes that section 518B.01, subdivision 2(b)(7), does not include all romantic or sexual relationships, only those that are significant, and contends that appellant and his relationship did not rise to that level in July 2016. They had only known each other for a couple of weeks, they did not live together, and C.P. lived with another man. Appellant cites to dictionaries and several unpublished opinions of this court as authority for what constitutes "significant" under the statute. The state argues that there was sufficient evidence to support a "significant romantic or sexual relationship" between appellant and C.P. in July 2016, and that it is a case-by-case determination for the factfinder. The state suggests that there is no specific length of time or type of interaction that makes a relationship "significant." We agree.
Reviewing the evidence in the light most favorable to conviction and disregarding evidence to the contrary, the jury heard testimony that C.P. and appellant had known each other since March 2016 or approximately four months at the time of the assault in July 2016. At the time of the assault, they were starting a relationship, cared about each other, and had an ongoing sexual relationship, and C.P. said that she was falling in love with appellant. Although they kept the relationship a secret, C.P.'s family members were aware that she was spending time with appellant, and they were concerned because C.P. was acting uncharacteristically and had relapsed. C.P. also denied that she was in a romantic relationship with another man in July 2016. Given this evidence of the length, frequency, and intensity of C.P. and appellant's ongoing romantic and sexual relationship as of July 2016, there was sufficient evidence in the record for the jury to conclude that C.P. and appellant were in a "significant romantic or sexual relationship," and therefore to find appellant guilty of domestic assault of a "family or household member."
II. The district court did not plainly err or abuse its discretion in admitting objected-to and unobjected-to hearsay statements at trial.
"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); State v. Flores, 595 N.W.2d 860, 865 (Minn. 1999) (noting this rule in reviewing a hearsay ruling). 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). An out-of-court statement is not admissible as substantive evidence unless it is non-hearsay or falls within an exception to the hearsay rule. Minn. R. Evid. 802; State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999).
A. C.P.'s unobjected-to recorded statement to law enforcement.
Appellant first argues that the district court erred by admitting C.P.'s out-of-court recorded statement to the police officer on July 15, 2016. The state offered the recording, and the district court preliminarily admitted it as a prior recorded recollection under Minn. R. Evid. 803(5), subject to later foundation testimony by the officer who recorded it. The record shows that appellant agreed to its admission at trial. As such, the state argues that appellant invited the error and cannot challenge its admission on appeal.
Under the invited-error doctrine, appellate courts "do not typically review errors that were invited by the defendant or that the defendant could have prevented in the district court." State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). However, appellate courts will review an unobjected-to error, even if invited by the defendant, under the plain-error test. Id.; State v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012) (noting that the invited-error doctrine does not apply if the plain-error test is met). Accordingly, our review is under the plain-error standard of review, which requires appellant to establish: (1) error; (2) that is plain; and (3) that affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (applying Minn. R. Crim. P. 31.02).
For a recorded statement to be admissible under rule 803(5) it must (1) be a "memorandum or record"; (2) of which the declarant has an "insufficient recollection to testify fully and accurately"; (3) which is "shown to have been made or adopted . . . when the matter was fresh in [the declarant's] memory"; and (4) which "reflect[s the declarant's] knowledge correctly." State v. Stone, 784 N.W.2d 367, 370-71 (Minn. 2010). "[W]hether the district court properly interpreted Minn. R. Evid. 803(5) is a question of law that [appellate courts] review de novo." Id. at 370.
On appeal, appellant does not dispute that the July 15 recorded statement meets the first three requirements under rule 803(5), and only argues that it does not "reflect [C.P.'s] knowledge correctly." Rule 803(5) does not specify how to establish the fourth requirement. See 11 Peter N. Thompson, Minnesota Practice § 803.05 (4th ed. 2017). Although the most persuasive evidence would be a witness's direct statement that he or she remembers making the record, and that the record accurately recorded his or her knowledge at that time, reliability has been established in other ways. Id. Appellant argues that the July 15 recording is not trustworthy because C.P. did not explicitly acknowledge its truth at the time it was made or at trial. The state argues that C.P.'s testimony must be considered in light of the fact that she was a reluctant witness.
Here, C.P. testified that she could not remember the assault or talking to the officer on July 15, but she did acknowledge that the voice on the recording was hers and that she gave the responses. She went on to testify that she could not verify the truth of her recorded statements because she was drunk or high when she made them. However, the record supports the state's argument that C.P. was a reluctant witness and that she tried to recant at trial because she did not want any harm to come to appellant. Further, the officer who made the recording attested to its foundation and reliability. It was made when C.P. was still in pain and recovering from her injuries, and the officer testified that it was a fair and accurate copy of the interview he conducted with C.P. on July 15. In addition, C.P.'s recorded statement was consistent with some of C.P.'s testimony, and there was strong evidence presented at trial to support its accuracy—including other witness testimony and photographs of C.P.'s injuries. Based on this record, appellant failed to show that the district court plainly erred in admitting the July 15 recording under rule 803(5).
B. C.P.'s out-of-court statements at the hotel and hospital.
Appellant also challenges the admission of several out-of-court statements that were made by C.P. and that were introduced at trial through the testimony of C.P.'s sister, niece, daughter, family friend, and law enforcement. The record shows that appellant objected to some of the testimony about these statements, and that the district court overruled all but one objection.
1. C.P.'s phone call to her sister
First, appellant argues that the district court abused its discretion in admitting C.P.'s out-of-court statement to her sister that "he's mad at me" through the testimony of C.P's sister, niece, daughter, and law enforcement. Appellant only objected when niece testified about C.P.'s statement. The district court allowed testimony about C.P.'s statement to come in not for the truth of the matter asserted but for its effect on the listener, specifically, its effect on C.P.'s niece. The court found that niece's testimony provided foundation for why niece filed a missing-person report for C.P. on July 14. No limiting instruction was requested, and none was given.
An out-of-court statement introduced to show its effect on the state of mind of the listener is not hearsay. See State v. Stillday, 646 N.W.2d 557, 563-64 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002) (holding that an out-of-court statement was not hearsay when it was offered not for its truth but to show why the listener called the police). The statement is introduced to show that it was made to and heard by the listener. See 11A Peter N. Thompson & David F. Herr, Minnesota Practice, Courtroom Handbook of Minn. Evid., R. 801(a)-(c) (2017) (noting that a statement is not hearsay if it is not offered for its truth but to show its effect on the listener or to explain the reason for certain actions).
Appellant argues that the admission of C.P.'s out-of-court statement for its effect on C.P.'s niece was improper and prejudicial, and that the district court plainly erred in failing to give a limiting instruction for the testimony. Appellant contends that the error affected his substantial rights because the jury was able to consider the statement as substantive evidence for all purposes. The state responds that appellant failed to show that the district court clearly abused its discretion, and that regardless of C.P.'s niece's testimony, the statement came in through other witnesses' testimony.
The district court's finding that the statement was admissible for its effect on the listener is supported by the record. C.P.'s niece and other family members testified, and the officer's testimony confirmed, that C.P.'s niece and family were worried about C.P. based on what she said in the call to her sister, the fact that C.P. sounded drunk during the call, and that no one heard from C.P. again after the call, which was out of character for her. Based on this record, the district court did not clearly abuse its discretion in allowing niece's testimony about the statement because it was not offered for its truth but to show why C.P.'s niece responded the way that she did. Further, the record shows that the district court did not plainly err in allowing the unobjected-to testimony from other witnesses about C.P.'s statement to her sister, because the record also supports that this testimony could have been offered as non-hearsay for its effect on C.P.'s niece and family.
We are also unconvinced that the court plainly or prejudicially erred in failing to provide a limiting instruction. Neither party requested a limiting instruction, and the supreme court has previously recognized that district courts are justifiably hesitant in giving cautionary instructions sua sponte because "an instruction may draw additional attention to potentially prejudicial issues" and because "a defendant may choose not to request an instruction for strategic reasons." State v. Vance, 714 N.W.2d 428, 442-43 (Minn. 2006) (finding no plain error in failing to give a cautionary instruction sua sponte). Even if we found that the district court plainly erred here, our review of the record indicates that any impact was insubstantial and did not prejudice the outcome of the case.
2. C.P.'s statements at the hotel and the hospital
At trial, appellant objected to some, but not all, of the testimony by C.P.'s niece, C.P.'s daughter, the family friend, and the police officer about statements that C.P. made at the hotel or at the hospital. The state argued that the testimony was admissible under the excited-utterance hearsay exception under Minn. R. Evid. 803(2), or under the exception for the then-existing state of mind of the declarant under Minn. R. Evid. 803(3). Appellant objected to C.P.'s niece's testimony, and the district court allowed niece to testify under the excited-utterance exception about what C.P. said immediately upon leaving the hotel room and a few minutes later in the lobby. The court found that C.P.'s statements were made while C.P. was still under the stress and excitement of a startling event—the assault—and that niece's testimony that C.P. was in and out of consciousness provided foundation. The court also overruled appellant's objections to testimony by the police officer and C.P.'s daughter about C.P.'s statements at the hotel and hospital, but did not specify under what basis. No objection was made to the family friend's brief testimony.
The excited-utterance exception permits the admission of hearsay that "relat[es] 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). "The rationale for this exception stems from the belief that the excitement caused by the event eliminates the possibility of conscious fabrication, and insures the trustworthiness of the statement." State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (quotation omitted). While there are no strict temporal guidelines, a statement admissible under rule 803(2) must be made "while the declarant is under the stress of excitement from the startling event." State v. Davis, 820 N.W.2d 525, 536 (Minn. 2012) (quotation omitted). The district court must consider all relevant factors, including the length of time elapsed, the nature of the event, the physical condition of the declarant, and the declarant's motive to falsify before admitting hearsay evidence under the excited-utterance exception. State v. Daniels, 380 N.W.2d 777, 782-83 (Minn. 1986).
Appellant argues that the district court abused its discretion in allowing witnesses to testify about C.P.'s out-of-court statements at the hotel and at the hospital because it is unclear when C.P. actually received her injuries, and whether or not she was still laboring under the aura of excitement from the assault when she made the statements. Appellant also argues that C.P. had time to calm down before she gave the statements at the hotel, and that even more time had passed when C.P. made the statements at the hospital. The state contends that the district court acted within its broad discretion.
Here, the record supports the district court's finding that C.P. made the statements at the hotel immediately after opening the hotel room door and in the hotel lobby a few minutes later, when she was still laboring under the effects of the assault. Similarly, C.P.'s statements at the hospital were made while she was still very upset and in pain, and while she was still being treated for the injuries she sustained from the assault. Niece testified that C.P. passed in and out of consciousness at the hotel, and multiple witnesses testified that C.P. was seriously injured, very upset, and scared when she made the statements at the hotel, and short time later, at the hospital.
Based on this record, there was sufficient evidence for the district court to find, in its discretion, that C.P. was still under the aura of excitement, so as to allow the testimony about C.P.'s out-of-court statements at the hotel and the hospital under rule 803(2). See Bauer, 598 N.W.2d at 366 (admitting a statement as an excited utterance given the testimony that the declarant was "very upset," "extremely agitated," and "very afraid"); State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985) (admitting statements as excited utterances given the testimony that the declarant was "very upset," "scared," and "shaky").
In addition, we find no support in the record that C.P. fabricated the statements at the hotel or at the hospital, or that she had time to do so. While a time lapse increases the possibility of reflection and fabrication, Bauer, 598 N.W.2d at 366-67, the "[l]apse of time between the startling event and the excited utterance is not always determinative," Daniels, 380 N.W.2d at 783. See State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001) (admitting statements made three hours after the assault as excited utterances, where the victim had multiple facial fractures, a broken jaw, and was in severe pain when she gave the statement), review denied (Minn. May 29, 2001). The district court did not abuse its discretion in admitting niece's testimony about C.P.'s statements at the hotel under rule 803(2) and could have admitted the other objected-to and unobjected-to testimony about C.P.'s statements at the hotel and hospital under the same rationale, as the state argued at trial and now argues on appeal. Because we conclude that the district court did not abuse its discretion in admitting the evidence under rule 803(2), we need not determine if the statements were alternatively admissible under the then-existing state-of-mind of the declarant under rule 803(3).
C. The record does not support appellant's claim of prejudice.
Finally, appellant argues that the district court's admission of C.P.'s out-of-court statements in the July 15 recording and through objected-to and unobjected-to witness testimony at trial was highly prejudicial because C.P.'s out-of-court statements are the only evidence that appellant assaulted C.P. We have already concluded that the district court's evidentiary admissions were not erroneous. Further, even if we were to conclude that the district court erred, the record does not support appellant's argument of prejudicial impact.
There was other strong evidence of appellant's guilt at trial, including photographs and witness testimony about C.P.'s injuries. Further, there is no Confrontation Clause concern because the declarant—C.P.—testified at trial. C.P. admitted making the July 15 recorded statements. And appellant had an opportunity to thoroughly cross-examine C.P. and the state's other witnesses about C.P.'s out-of-court statements, in order for the jury to determine their reliability. Based on this record, we cannot conclude that appellant's substantial rights were impacted or that the jury's verdict was unfairly prejudiced by the admission of testimony about C.P.'s out-of-court statements.
"[T]he Confrontation Clause prohibits the 'admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" State v. Holliday, 745 N.W.2d 556, 565 (Minn. 2008) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004)).
Affirmed.