                           This opinion will be unpublished and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
                                      A15-0677

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                    Todd Allen Turchin,
                                        Appellant.

                                   Filed March 21, 2016
                                         Affirmed
                                       Hooten, Judge

                               Ramsey County District Court
                                 File No. 62-CR-13-5647

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Peter Marker, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Hooten,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         On appeal from his conviction of fifth-degree possession of a controlled substance,

appellant argues that the district court abused its discretion by excluding his statements to
police at the time of his arrest on the grounds that the statements were self-serving hearsay.

We affirm.

                                             FACTS

       In August 2013, appellant Todd Allen Turchin was charged with fifth-degree

possession of a controlled substance. A jury trial was held in December 2014. The

following facts were established at trial.

       On January 8, 2013, around 1:00 a.m., St. Paul Police Officers Brian Nowicki and

Eric Kammerer initiated a traffic stop on a vehicle that they suspected was stolen. The

officers approached the vehicle and observed that Turchin was sitting in the driver’s seat

and a passenger was sitting in the front passenger’s seat. Officer Nowicki approached the

driver’s side of the vehicle and noticed that Turchin “had a pair of black gloves in his hands

that he was moving on his lap, as well as . . . in between his legs,” which Turchin eventually

set down near the emergency brake. Officer Nowicki testified that Turchin held the gloves

nervously. Officer Kammerer, who approached the passenger side of the vehicle, testified

that the passenger did not handle the gloves. Officer Nowicki asked Turchin to step out of

the vehicle and placed him in the squad car. The officers verified that the vehicle was

stolen and proceeded to search the vehicle. While searching the vehicle, Officer Nowicki

felt a lump in the fingertip of one of the gloves that Turchin had been holding. Inside the

glove, Officer Nowicki found two small plastic bags containing a crystalline substance,

which was later determined to be methamphetamine. Officer Nowicki then arrested

Turchin.




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       At the conclusion of the trial, the jury found Turchin guilty, and he was sentenced

to 18 months in prison. This appeal followed.

                                     DECISION

       Turchin argues that the district court abused its discretion by excluding his

statements to the police at the time of his arrest. We will not overturn a district court’s

evidentiary rulings “absent a clear abuse of discretion.” State v. Richardson, 670 N.W.2d

267, 277 (Minn. 2003).

       Hearsay is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted,” and hearsay is not admissible unless an exception applies. Minn. R. Evid.

801(c), 802. In the hearsay context, a statement is “(1) an oral or written assertion or

(2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Minn.

R. Evid. 801(a). Self-serving hearsay is the defendant’s own out-of-court statement that is

offered by the defendant through evidence other than the defendant’s own testimony. See

State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977). Self-serving hearsay is not admissible

under the Minnesota Rules of Evidence because “[t]o permit the introduction of such

statements could afford a defendant the opportunity to present his version of the facts

without ever being subject to cross-examination by the state.” Id.

       Prior to trial, the state brought a motion in limine to prohibit defense counsel from

introducing any of Turchin’s statements to Officers Nowicki and Kammerer at the time of

his arrest on the grounds that such statements constituted self-serving hearsay. The district

court reserved ruling on the motion and stated that it would consider any objections in the

context of the specific questions asked of the officers on cross-examination.


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      During defense counsel’s cross-examination of the officers, the district court

sustained three of the prosecutor’s objections on self-serving hearsay grounds. The first

two instances occurred during defense counsel’s cross-examination of Officer Nowicki:

      Q: Okay. And when you were interacting with Mr. Turchin, he was quite visibly
      confused, wasn’t he?
      A: He appeared to be, yes.
      Q: He kept saying things along the lines of, “What the hell did she do[?]”; correct?
      [PROSECUTOR]: Objection, self-serving hearsay.
      THE COURT: Sustained.
      BY [DEFENSE COUNSEL]:
      Q: He was visibly confused; correct?
      A: He appeared to be, yes.
      Q: He was asking a lot of questions?
      A: He was.
      Q: He didn’t seem to understand what was going on?
      A: He didn’t seem to, no.
      Q: And you directly said that there was a substance that you suspected was
      methamphetamine in the gloves; correct?
      A: Yes.
      ....
      Q: He kept expressing confusion and bewilderment at that possibility; correct?
      A: Yes.
      [PROSECUTOR]: Objection.
      THE COURT: Sustained.

(Emphasis added.)

      The third instance occurred during defense counsel’s cross-examination of Officer

Kammerer:

      Q: [O]ne of the reasons that the vehicle was initially stopped was because there was
      a mismatch between the license plate and the vehicle; correct?
      A: That is correct.
      Q: Okay. And Mr. Turchin expressed confusion at this, did he not?
      [PROSECUTOR]: Objection, self-serving hearsay.
      THE COURT: Sustained.

(Emphasis added.)



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       Turchin first argues that defense counsel’s questions “did not call for self-serving

hearsay” because defense counsel sought only to elicit evidence of Turchin’s “confused

behavior,” not his statements. This argument is unpersuasive. Defense counsel was trying

to elicit Turchin’s statements from the officers, not observations of his non-assertive

behavior, because defense counsel asked what Turchin was “saying” and “expressing.”

Indeed, Officer Nowicki’s testimony about Turchin’s behavior was admitted into evidence,

as Officer Nowicki testified that, upon being arrested, Turchin appeared to be visibly

confused, asked a lot of questions, and did not seem to understand what was going on.

       Turchin next argues that the district court, by sustaining the prosecutor’s objections,

impeded his ability to present a complete defense. “Every criminal defendant has a right

to fundamental fairness and to be afforded a meaningful opportunity to present a complete

defense.” State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (quotation omitted),

review denied (Minn. Jan. 23, 1996). “The right to present a defense includes the

opportunity to develop the defendant’s version of the facts . . . .” Id. “To vindicate these

rights, courts must allow defendants to present evidence that is material and favorable to

their theory of the case.” Id. at 866. But, in developing their own version of the facts,

defendants “must comply with established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of guilt and innocence.” State v.

Richards, 495 N.W.2d 187, 195 (Minn. 1992) (quotation omitted).

       Essentially, Turchin argues that the rule of evidence prohibiting a defendant from

introducing self-serving hearsay does not apply to him, but he is mistaken. Turchin does

not have the right to circumvent the Minnesota Rules of Evidence, see id., and his right to


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present a complete defense was not infringed in this case. Turchin was allowed to advance

his theory of the case, which was that his surprised and confused demeanor established

reasonable doubt as to his knowledge of the drugs that were found inside the gloves that

he possessed. One way that he advanced this theory was by cross-examining Officer

Nowicki regarding his confused behavior at the scene of the traffic stop.

      Affirmed.




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