                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0557

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                JaJuan Anthony Reed, Sr.,
                                       Appellant.

                                    Filed April 4, 2016
                                         Affirmed
                                       Reilly, Judge

                               Stearns County District Court
                                 File No. 73-CR-14-7184

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges his felony domestic assault conviction, arguing the district

court abused its discretion by admitting witnesses’ out-of-court statements as substantive

evidence under the residual exception to the hearsay rule. We affirm.

                                          FACTS

       On August 23, 2014, at approximately 10:00 p.m., E.W. called 911 while appellant,

JaJuan Reed, was assaulting her at appellant’s mother’s residence.           Police officers

responded within minutes and spoke with E.W. upon arrival in a nearby parking lot. The

officers also spoke with two witnesses, K.R., appellant’s sister, and S.W., a friend of E.W.

       E.W. gave an initial statement to Officer Heim which was not recorded and a later

statement to the officer which was recorded. In the recorded statement, E.W. told the

officer she had been dating appellant for six years and she tried to leave him that night. He

told her that if she left he would “bang-bang” her and shoot himself in the head. She

explained when the incident occurred she was lying in bed with S.W. and appellant came

in because he wanted to lie down with her. She got up to go to S.W.’s house and appellant

started “grabbin’ all on [her]” left arm. She pushed him off, and he “balled up his fists.”

While they were “tusselin’ [she] grabbed his shirt.” Once she got outside, appellant chased

her around a car and she called 911.

       K.R. spoke with Officer Braegelmann. The statement was recorded without K.R.’s

knowledge. She told the officer that E.W. tried to leave that night because appellant “was

actin’ crazy.” She said appellant “yanked” E.W.’s arm “real hard” and S.W. pulled


                                             2
appellant back to prevent appellant from hitting E.W., ripping appellant’s shirt. Appellant

followed E.W. out the door and “kept on hit[ting] her,” and then E.W. ran by a car and

called the police.

       S.W. spoke with Officer Graff. The statement was recorded. S.W. told the officer

she was sitting on the bed with E.W. when appellant came in the bedroom and told E.W.

she was going to “lay by [him]” that night. When E.W. refused and tried to walk away

appellant “grabbed” her. E.W. then tried to pull away from him and S.W. “grabbed”

appellant and “pushed him away from [E.W.].”

       The state charged appellant with felony domestic assault in violation of Minn. Stat.

§ 609.2242.4. Before trial, the state filed a motion to admit E.W.’s 911 call and E.W.’s

statement to Officer Heim as substantive evidence because within weeks of the events E.W.

recanted her allegations against appellant.        In a thorough and thoughtful written

memorandum, the district court carefully explained which hearsay exception applied to

each portion of the statement admitted. It admitted the 911 call and E.W.’s initial

“statements to the officer immediately after [the officer] arrives on the scene before he asks

her for her identification” as excited utterances and admitted E.W.’s statement to the officer

“after he asks for her identification, including the transcribed statement” under the residual

exception. On the first day of trial the state moved to admit K.R.’s statement to Officer

Braegelmann as substantive evidence. The district court admitted the portions of her

statement related to the incident on August 23, 2014, under the residual exception.

       At trial, E.W. testified that she was no longer in a relationship with appellant, but

that she was still in love with him. Her testimony was largely consistent with her recorded


                                              3
statement. However, she testified at trial that she “took [how he was acting] like [being]

aggressive but he wasn’t [actually being aggressive].” She also said that he didn’t threaten

her. She acknowledged that she told the officer 1) he threatened her and 2) she was scared

for her life; however, she testified she was lying and couldn’t remember what she said

because she was drunk.

       Appellant’s sister, K.R., testified at trial that she considered E.W. to be family and

that she did not want to testify. She acknowledged she was present at the residence. She

remembered that there was “screaming and yelling” and that appellant and E.W. had been

drinking. K.R. saw E.W. run outside. She said E.W. and appellant “looked kind of mad,”

but she did not hear appellant threaten E.W. She remembered talking to the police, but

refused to look at her statement while on the stand.

       S.W. testified at trial that she considered both E.W. and appellant to be family, and

that she did not want to testify. She said appellant had been drinking and that E.W. did not

show signs of intoxication. S.W. testified that she could not remember most of what

happened, and she did not want to look at her statement to police. She did acknowledge

she made the statement and did not believe she lied to the officers. She testified that “if

it’s on the statement I probably did say it.”

       After S.W. testified, the state moved to admit her statement to Officer Graff as

substantive evidence.     The district court admitted the statement under the residual

exception.

       Appellant was found guilty as charged. This appeal follows.




                                                4
                                        DECISION

         Appellant argues the district court abused its discretion when it admitted E.W., K.R.,

and S.W.’s statements to the officers as substantive evidence. “Determinations regarding

hearsay evidence are largely within the discretion of the trial court.” State v. Whiteside,

400 N.W.2d 140, 145 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987). We review

the determination for abuse of discretion, and an appellant must show that the admission

of evidence was error and that he was prejudiced as a consequence. Holt v. State, 772

N.W.2d 470, 483 (Minn. 2009).

         Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Minn. R. Evid. 801(c). Although hearsay is generally not admissible at trial, Minn. R.

Evid. 802, it may be admissible if it is covered by an exception to the hearsay rule. State

v. Robinson, 699 N.W.2d 790, 794 (Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn.

2006).     The residual exception to the hearsay rule provides that a statement with

“circumstantial guarantees of trustworthiness,” is not excluded by the hearsay rule, if the

court determines that: (1) “the statement is offered as evidence of a material fact”; (2) “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 (3) “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. 807.

         Appellant argues that the district court abused its discretion by admitting the

statements because they were not “particularly reliable.” We look to the totality of the

circumstances to determine whether a statement has circumstantial guarantees of


                                                5
trustworthiness. State v. Keeton, 589 N.W.2d 85, 90 (Minn. 1998). When considering

whether a statement is reliable courts consider factors including whether (1) the declarant

was available for confrontation, (2) it is clear that the declarant made the prior statement,

(3) the statement is against the declarant’s penal interest, and (4) the statement is consistent

with all the other evidence presented by the state. State v. Ortlepp, 363 N.W.2d 39, 44

(Minn. 1985). In the domestic assault context the third factor encompasses statements

perceived to be against a declarant’s romantic interest. State v. Plantin, 682 N.W.2d 653,

659 (Minn. 2004), review denied (Minn. Sept. 29, 2004).             The Ortlepp factors are

nonexclusive. See State v. Martinez, 725 N.W.2d 733, 738 (Minn. 2007) (applying a

totality of the circumstances analysis).

       Appellant asserts “there was no evidence that the statements were against the

witnesses’ penal or romantic interest.” See Plantin, 682 N.W.2d at 659 (extending the third

Ortlepp factor to encompass statements perceived to be against a declarant’s romantic

interest). Appellant argues Plantin is distinguishable because the witness in Plantin

testified she tried to continue the relationship with the defendant, and in the present case

E.W. indicated they were not still in a relationship. However, E.W.’s statements are against

her romantic interest because she testified she still loved him. See State v. Tate, 682

N.W.2d 169, 176-77 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004)

(determining the third Ortlepp factor was satisfied when the witness and defendant were in

an “‘off and on’ relationship for two years and . . . she love[d] him”; noting “because [the

witness] was hostile to the prosecution and supportive of [the defendant], [her] statement

was against her interest”).


                                               6
       K.R. is appellant’s younger sister, and thus has a close familial relationship with

appellant. K.R. and S.W. both considered E.W. to be “like family.” At trial, K.R. and

S.W. both indicated they did not want to testify and refused to look at their prior statements

while on the stand. Both K.R. and S.W. were “clearly hostile” to the prosecution. See

Whiteside, 400 N.W.2d at 146 (determining it was not an abuse of discretion when a district

court admitted prior statements of a witness who was “clearly hostile” to the prosecution).

       Appellant also argues “the unsworn statements were not consistent with the State’s

other evidence because the bulk of the State’s case consisted of the unsworn testimony.”

Appellant asserts a “lack of factual overlap” between the 911 call and E.W.’s recorded

statement. In support of the argument, appellant points to the fact that during the 911 call

E.W. stated that appellant was “trying to put his hands on her” and “trying to jump her,”

but in the recorded statement E.W. complained of appellant’s threats to kill her, to shoot

her in the head, his drinking problem, and his abusive past. While the recorded statement

was significantly longer and more detailed than the 911 call, they are consistent. In her

recorded statement, E.W. told Officer Heim that appellant started “grabbin’ all on [her]”

she pushed him off, ran outside and he chased her, and when she was outside she called

911. All of this is consistent with the 911 call where E.W. described appellant hitting her

and running away in real time.

       E.W.’s recorded statement is largely consistent with E.W.’s initial statement, which

was admitted as an excited utterance. Officer Heim testified that during the initial

statement “[E.W.] indicated [appellant] had grabbed her by the left arm,” and that he

“balled up a fist as if he were going to hit her,” and that although “[h]e never did [hit her]


                                              7
she thought that he might.” During the initial statement, E.W. also told Officer Heim that

she was in the bedroom with appellant, and they subsequently went outside where they

went around a car and she ran over a couple blocks. All of these facts are consistent with

her recorded statement.

       Further E.W., K.R., and S.W. all testified at trial in a manner that was largely

consistent with, albeit less detailed than, their statements to police. E.W.’s account at trial

of the incident acknowledges appellant “grab[bed]” her left arm, that she “snatched away

from him,” and that she ran outside. Although she testified at trial that she “took [how he

was acting] like [being] aggressive but he wasn’t,” only her perception of the event

changed, not the underlying facts.

       Here, the witnesses recanting or failing to remember their prior statements are the

only significant inconsistencies in the state’s evidence. This concern was addressed in a

footnote in Ortlepp:

              The possibility that the jury may accept as the truth the earlier
              statements in preference to those made upon the stand is indeed
              real, but we find no difficulty in it. 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. There
              is no mythical necessity that the case must be decided only in
              accordance with the truth of words uttered under oath in court.

Ortlepp, 363 N.W.2d at 44 n.1 (quoting DiCarlo v. United States, 6 F.2d 364, 368 (2nd

Cir. 1925) (Learned Hand, J.), cert. denied, 268 U.S. 706, 45 S. Ct. 640 (1925)).

       While appellant’s argument is limited to the application of the Ortlepp factors, the

Ortlepp factors are nonexclusive and we conduct a totality of the circumstances analysis.



                                               8
Martinez, 725 N.W.2d at 738.         Another factor that supports the determination the

statements had circumstantial guarantees of trustworthiness is the temporal connection

between the statements and the incident described. See Tate, 682 N.W.2d at 177

(determining a statement made one day after the incident indicates circumstantial

trustworthiness). Here, the statements were made within a few hours of the assault and

thus have a temporal connection which favors their trustworthiness. Additionally the

statements made soon after the assault occurred were consistent with each other, and it

does not appear the victim and witnesses would have had time to fabricate coordinated

statements.

       In sum, all three witnesses testified at the trial and acknowledged making the

statements. The statements were recorded so there was no doubt about what was said. The

statements are against E.W., K.R., and S.W.’s personal interests, and K.R. and S.W. were

clearly hostile to the state. The statements are generally consistent with the other evidence

presented by the state including the 911 call, E.W.’s initial statement, and much of the

testimony from E.W., K.R., and S.W. at trial. The statements were made shortly after the

assault and are generally consistent with each other.           Under the totality of the

circumstances, the statements had circumstantial guarantees of trustworthiness.          The

district court did not abuse its discretion when it admitted the statements under the residual

exception.

       Affirmed.




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