                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0515

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                 Michael Anthony Davis,
                                       Appellant.

                                 Filed February 6, 2017
                    Affirmed in part, reversed in part, and remanded
                                     Bratvold, Judge

                              Hennepin County District Court
                                File No. 27-CR-15-26617

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Luke J. Blahnik, Shakopee, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                         UNPUBLISHED OPINION

BRATVOLD, Judge

         On appeal from his convictions of felony domestic assault and simple robbery,

appellant argues that (1) the district court erred by not renewing appellant’s waiver of

counsel after it allowed, on the first day of trial, the state’s amended charge of simple
robbery, which increased appellant’s potential punishment, (2) the evidence is insufficient

to support his convictions; and (3) the district court erred in admitting as evidence the

victim’s statement to the police. Because the district court erred in not renewing appellant’s

waiver of counsel after the state amended its complaint, we reverse in part and remand.

Additionally, we conclude that the evidence is sufficient to support appellant’s conviction

for felony domestic assault and the district court did not err in admitting the victim’s

statement, therefore, we affirm in part.

                                           FACTS

       The evidence admitted at trial established that, from July 2015 and continuing

through the date of the trial, appellant Michael Anthony Davis and A.H. were involved in

a romantic relationship. On the evening of July 11, 2015, A.H. went out drinking with her

roommate. When A.H. and her roommate returned to their townhome in the early hours of

July 12, they were intoxicated and found Davis parked nearby. The three went inside the

townhome and Davis and A.H. began arguing. Davis was upset with A.H. because he

suspected that she was cheating on him. Davis took A.H.’s phone, left the townhome, and

walked toward his car, holding A.H.’s phone. A.H. followed Davis.

       After Davis was seated in his car, A.H. reached inside the car to grab her phone.

A.H. fell to the ground, Davis exited the car, and they scuffled, with both of them rolling

on the ground near Davis’s car, fighting over A.H.’s phone. At some point, A.H. gave up

and told Davis to keep the phone. Davis drove away, with A.H.’s phone still in his

possession.




                                              2
       A.H. returned home and her roommate called 911. An officer of the Maple Grove

Police Department responded and took photographs of A.H.’s injuries, which she said were

caused by the scuffle with Davis. The photographs show that A.H. had a bloody nose,

scratches on her face, an abrasion on the inside of her lips, and a bite mark on her shoulder.

The officer then took a statement from A.H., in which she stated that Davis pushed her; hit

her in the temple, toward her lips, and near her eyes; and bit her arm. After the interview,

the officer tried to help A.H. find her phone. When they could not find her phone, the

officer asked the roommate to dial A.H.’s number and Davis answered.

       On July 17, 2015, a detective interviewed Davis via telephone. During the interview,

Davis admitted that during the early hours on July 12, he was involved in an argument with

A.H. because “he had some ideas that maybe she was cheating on him.” He also admitted

that he was involved in a physical altercation with A.H., during which he elbowed her in

the face. Davis denied punching or biting A.H.

       On September 18, 2015, the state charged Davis with felony domestic assault under

Minn. Stat. § 609.2242, subd. 4 (2014). On October 8, 2015, the state amended the

complaint to include Davis’s two prior qualifying domestic-violence-related convictions

that had occurred within the previous ten years.

       Davis’s first appearance was scheduled and then continued to provide Davis with

more time to seek counsel. At the October 12, 2015 hearing, Davis told the district court

that he did not qualify for a public defender and could not afford to hire a private attorney.

The court provided Davis with contact information for the Legal Rights Center, and

scheduled an omnibus hearing.


                                              3
       At the omnibus hearing, Davis informed the district court that he had failed to obtain

legal counsel. After some discussion, the court scheduled a trial and Davis stated that he

would prefer a court trial, not a jury trial. The state informed the court and Davis that a

copy of the state’s discovery was available for Davis to pick up after the hearing.

       On January 8, 2016, Davis appeared for his scheduled court trial. During the

morning pretrial proceedings, the district court gave Davis a petition to proceed pro se and

waive his right to be represented by an attorney. The court had a lengthy discussion with

Davis about his request to represent himself. The court asked Davis about a number of

things, including whether he understood the complaint against him. Specifically, the court

asked Davis, “[a]nd as the complaint stands right now, there is a sole count charging

Domestic Assault Felony. You understand that charge?” Davis answered yes.

       The district court then reviewed Davis’s written petition line by line. The court

informed Davis that it would provide him with more time to prepare for his case if

necessary, and Davis said he understood. The court asked Davis whether he understood

that he was currently facing imprisonment for five years and/or a fine of $10,000 as the

maximum statutory penalty for felony domestic assault. Davis said that he understood.

Davis then affirmed his decision to waive his right to counsel and signed the petition to

proceed pro se. The district court approved Davis’s petition.

       Next, the district court asked Davis whether he had received discovery from the

state and Davis said no. The state responded that Davis had not picked up discovery after

the omnibus hearing. The state explained that it later e-mailed the discovery to Davis,

including a transcript of A.H.’s statement, four days before the trial, at the same time it


                                             4
e-mailed its motion to use relationship evidence and notice of out-of-court statements.

Davis told the court that he had not checked his e-mail.

       The district court then considered the state’s motion to amend its complaint to add

a count of simple robbery, under Minn. Stat. § 609.24 (2014). The state admitted that the

motion to amend was not e-mailed to Davis along with the discovery. The state then orally

moved for the amendment, stating that the factual basis for the charge was that Davis took

A.H.’s phone. During its argument, the state noted that the maximum punishment for

simple robbery is imprisonment for ten years and/or a fine of $20,000.

       The district court explained to Davis some potential responses to the state’s motion

to amend: not opposing the motion; opposing the motion on the basis that his substantial

rights are being prejudiced; or moving for continuance. Before Davis responded, the state

argued that adding a new charge of simple robbery would not prejudice Davis’s substantial

rights, because the addition “does not change the commitment level of the offense from

say, a presumptive-stayed sentence to a presumptive commit.”

       The district court told Davis that it would grant him a continuance if that was his

preference. Davis answered that he opposed the amendment, but did not want a

continuance; he wanted to “go forward today.” After a brief recess, the court permitted the

state to amend the complaint.

       The district court also reviewed with Davis the waiver of his right to a jury trial,

clarifying that the written waiver encompasses both counts against him, including the

simple robbery charge. Davis signed the waiver, which the district court approved. The




                                             5
court did not readdress Davis’s waiver of counsel, or discuss his maximum possible

punishment for the simple robbery charge.

       At trial, the district court received the following into evidence: photographs of A.H.

showing her injuries at the time of the incident; a transcript and audio recording of A.H.’s

statement to the responding officer; a transcript and audio recording of the roommate’s 911

call; certified copies of records related to Davis’s conviction for misdemeanor violation of

an order for protection from 2005; and certified copies of records related to Davis’s

conviction for a gross misdemeanor domestic assault from 2007. The court also heard

testimony from A.H., the roommate, the Maple Grove officer and detective, and three

victims of prior incidents involving Davis. Davis testified on his own behalf.

       On January 14, 2016, the district court issued written findings of fact, conclusions

of law, and verdict, finding Davis guilty of felony domestic assault and simple robbery. On

March 11, 2016, the district court entered convictions on both charges and imposed a

stayed sentence on the simple robbery conviction with jail time and other conditions. This

appeal follows.

                                     DECISION

I.     Waiver of the right to counsel

       The Sixth and Fourteenth Amendments to the United States Constitution guarantee

criminal defendants the right to an attorney. State v. Worthy, 583 N.W.2d 270, 275 (Minn.

1998). The right to an attorney may be waived if the waiver is voluntary and intelligent. Id.

Whether a waiver is voluntary and intelligent depends on the facts and circumstances of

the case, including the background, experience, and conduct of the accused. Johnson v.


                                             6
Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). To establish a voluntary and

intelligent waiver of counsel, the record must demonstrate that the defendant comprehends

several matters, including the possible punishments for the charges. State v. Rhoads, 813

N.W.2d 880, 888 (Minn. 2012) (citation omitted). This court reviews a district court’s

factual finding that a defendant has voluntarily and intelligently waived his right to counsel

for clear error. State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009). “When the facts are

undisputed, however, the question of whether a waiver-of-counsel was knowing and

intelligent is a constitutional one that is reviewed de novo.” Rhoads, 813 N.W.2d at 885.

       Davis argues that the district court erred by not renewing his waiver of counsel after

the complaint was amended to add a count of simple robbery. Our analysis is guided by

Rhoads, in which the Minnesota Supreme Court discussed whether a district court must

renew a defendant’s waiver of counsel at subsequent hearings. Id. at 887–90. The supreme

court held “as a general rule” that a defendant need not renew his waiver of counsel when

“nothing has changed since the initial waiver.” Id. at 887. But the supreme court also

recognized an exception to this general rule in cases where the state “doubles the

defendant’s maximum possible punishment by filing an amended charge at a subsequent

hearing.” Id. The supreme court reasoned that, “[b]ecause an amended charge that doubles

the maximum possible punishment substantially alters the consequences of a criminal

conviction, we conclude that it warrants an exception to the general rule that a defendant

need not renew a valid waiver-of-counsel at subsequent proceedings.” Id. at 888 (emphasis

in original). The supreme court held that, when renewing a defendant’s waiver of counsel,

the district court “should conduct a comprehensive examination of the defendant’s


                                              7
understanding of the increase in the maximum possible punishment.” Id. at 889. Because

the district court in Rhoads had not renewed the waiver of counsel after the state amended

its complaint to add a charge that doubled the maximum possible punishment for the

defendant, the supreme court reversed the conviction of the amended charge. 1 Id. at 889-

90

      This court must determine whether the district court was required to renew Davis’s

waiver of counsel after the addition of the simple robbery charge. The original complaint

charged Davis with felony domestic assault. Due to Davis’s two prior qualified domestic-

violence-related convictions, his maximum punishment was five years imprisonment

and/or a fine of $10,000. See Minn. Stat. § 609.2242, subd. 4 (2014). The amended

complaint added a count of simple robbery, with a maximum possible punishment of ten

years imprisonment and/or a fine of $20,000. See Minn. Stat. § 609.24 (2014). Because the

amended complaint doubled Davis’s maximum possible punishment, Rhoads applies here

and the district court was required to renew Davis’s waiver of counsel after the state was

allowed to amend its complaint.

       The state argues that Rhoads does not apply for two reasons. First, the state contends

that this case is distinguishable because the defendant in Rhoads was eligible for court-

appointed representation, but waived his right to counsel and instead chose to represent

himself. 813 N.W.2d at 883. Here, Davis did not qualify for a public defender, and chose

to represent himself after failing to obtain private counsel. These factual differences are


1
 We note that the supreme court affirmed Rhoads’s conviction of the original charge. 813
N.W.2d at 882 n.2.

                                             8
not material. Rhoads emphasized that the accused “should be made aware of the dangers

and disadvantages of self-representation, so that the record will establish that he knows

what he is doing and his choice is made with eyes open.” 813 N.W.2d at 885 (quoting

Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541 (1975)). The principle that a

criminal defendant should have the information necessary to make decisions “with eyes

open” is also true for those who choose to represent themselves instead of hiring private

counsel. The state’s position is inconsistent with the supreme court’s analysis in Rhoads.

       Second, the state notes that Davis’s waiver of counsel and the state’s subsequent

motion to amend occurred close in time, during the morning pretrial proceeding on

January 8, 2016. Because Davis’s waiver occurred within minutes of the amendment, the

state argues that Davis’s waiver was valid. The state correctly notes that the defendant in

Rhoads made his initial waiver of counsel two months before the state amended its

complaint, but we fail to see how this factual difference is relevant. Rhoads required the

district court to renew the defendant’s waiver of counsel, not because too much time had

passed between the waiver and the state’s introduction of new charges, but to ensure that

the defendant had “knowingly and voluntarily” decided to represent himself, with an

understanding of the possible punishment he faced. Rhoads, 813 N.W.2d at 889–90.

Similarly, the district court needed to ascertain whether Davis knowingly and voluntarily

decided to represent himself with an understanding of the increased possible punishment

under the state’s amended complaint.

       We conclude that, under these circumstances, Rhoads required the district court to

renew Davis’s waiver of counsel after it allowed the state to amend and add the simple


                                             9
robbery charge. Davis’s written waiver of counsel petition mentions only the felony

domestic assault charge. Our review of the record shows that the district court did not

discuss waiver of counsel with Davis after the state amended the complaint. Immediately

after granting the state’s motion to amend, the district court said to Davis, “I know we

talked about this, Mr. Davis, that you did have an opportunity to consult with counsel and

were unable to afford it.” But aside from this passing statement, the district court did not

discuss Davis’s waiver of counsel. Moreover, while the state mentioned during the hearing

that the maximum statutory punishment for simple robbery is ten years’ imprisonment, the

district court did not ask Davis whether he understood that the amended charge could

substantially increase his maximum potential punishment.

       Even so, Rhoads also held that a district court’s failure to renew an on-the-record

inquiry about the waiver of counsel does not always require reversal. Specifically, “when

the particular facts and circumstances of the case demonstrate that the defendant renewed

his waiver-of-counsel with an understanding of the increase in the maximum possible

punishment,” the conviction may be affirmed. Rhoads, 813 N.W.2d at 889. Here, Davis

gave no indication that he renewed his waiver of counsel after the charge of simple robbery

was added, or that he comprehended that the added charge increased his possible maximum

sentence. Because the district court did not expressly address Davis’s waiver of counsel

regarding the amended complaint, and there is no evidence suggesting that Davis chose to

continue representing himself with an understanding of the increase in his maximum

possible punishment, we conclude the district court erred and reverse Davis’s simple

robbery conviction.


                                            10
II.     Sufficiency of evidence

        When reviewing the sufficiency of the evidence, “we view the evidence in the light

most favorable to the verdict and assume that the factfinder disbelieved any testimony

conflicting with that verdict.” State v. Holliday, 745 N.W.2d 556, 562 (Minn. 2008)

(quotation omitted). “The verdict will not be overturned if, giving due regard to the

presumption of innocence and the prosecution’s burden of proving guilt beyond a

reasonable doubt, the [fact finder] could reasonably have found the defendant guilty of the

charged offense.” Id. (quotation omitted). This court uses “the same standard of review in

bench trials and in jury trials in evaluating the sufficiency of the evidence.” State v.

Palmer, 803 N.W.2d 727, 733 (Minn. 2011). Davis argues that the state did not present

sufficient evidence to convict him of felony domestic assault under Minn. Stat. § 609.2242,

subd. 4, and simple robbery under Minn. Stat. § 609.24. We will discuss each charge in

turn.

        A.    Domestic assault

        To convict Davis of felony domestic assault, the state must prove that he

(1) committed an act with intent to cause fear in a family or household member of

immediate bodily harm or death; or (2) intentionally inflicted or attempted to inflict bodily

harm upon a family or household member; and (3) had domestic-violence-related

convictions in the past ten years. 2 Minn. Stat. § 609.2242, subds. 1, 4, (2014). Intent is a


2
  “Family or household member” includes “persons involved in significant romantic or
sexual relationship.” Minn. Stat. § 519B.01, subd. 2(b)(7) (2014). “Bodily harm” is
“physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat.
§ 609.02, subd. 7 (2014).

                                             11
state of mind “generally proved circumstantially by drawing inferences from a defendant’s

words and actions in light of the totality of the circumstances.” State v. Moua, 678 N.W.2d

29, 39 (Minn. 2004).

       When a conviction is based on circumstantial evidence, we use a two-step process

to assess the sufficiency of the evidence to sustain the conviction. State v. Silvernail, 831

N.W.2d 594, 598 (Minn. 2013). First, we identify the circumstances proved. Id. Second,

we “determine whether the circumstances proved are consistent with guilt and inconsistent

with any rational hypothesis except that of guilt,” giving no deference to the fact finder’s

choice among reasonable inferences. Id. at 599. To successfully challenge a conviction

based upon circumstantial evidence, a defendant must point to evidence in the record that

is consistent with a rational theory other than guilt. State v. Taylor, 650 N.W.2d 190, 206

(Minn. 2002).

       Here, the circumstances proved include that (1) Davis and A.H. were romantically

involved at the time of the incident; (2) A.H. and her roommate went out drinking that

night; (3) Davis was waiting for A.H. at her residence when she returned; (4) Davis was

upset with A.H. and suspected that she was cheating on him; (5) Davis and A.H. argued

and later scuffled over A.H.’s phone, with both of them rolling on the ground; (6) A.H.

gave up fighting over her phone and returned to her townhouse; (7) Davis drove away with

A.H.’s phone; (8) photographs of A.H. taken soon after the incident show injuries,

including a mark on her shoulder that a trained police officer identified as human bite mark;

and (9) Davis had prior domestic-violence-related offenses.




                                             12
       Davis does not challenge the admission of the photographs or the officer’s

testimony. He also does not dispute the finding that A.H. suffered a human bite mark.

Instead, Davis contends that the circumstances proved do not exclude the rational

hypothesis that someone else bit A.H., noting that she had been at two bars prior to the

incident, where there were “likely many people who could’ve placed [the bite mark] there.”

       While it is true that A.H. went to two bars with her roommate that evening, there is

no evidence in the record consistent with Davis’s theory that A.H. was bitten by someone

else. “We will not overturn a conviction based on circumstantial evidence on the basis of

mere conjecture.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation

omitted). Taking the evidence as a whole, in the light most favorable to the verdict, we

conclude that there was sufficient evidence for the district court to reasonably conclude

that Davis intentionally inflicted bodily harm on A.H. by biting her. Accordingly, we do

not disturb Davis’s conviction for felony domestic violence.

       B.     Simple robbery

       Even though we conclude that Davis’s conviction for simple robbery must be

reversed based on the district court’s failure to renew his waiver of counsel, we must also

address Davis’s sufficiency argument to determine whether remand is appropriate. State v.

Clark, 755 N.W.2d 241, 256 (Minn. 2008) (holding that remand is not permitted where the

state’s evidence in the first trial was legally insufficient, citing the Double Jeopardy

Clause).

       To convict Davis of simple robbery, the state must prove that Davis took “personal

property from the person or in the presence of another and use[d] or threaten[ed] the


                                            13
imminent use of force against any person to overcome the person’s resistance to, or compel

acquiescence in, the taking or carrying away.” Minn. Stat. § 609.24. Davis contends that

his acquisition of A.H.’s phone did not arise from his use of force or threat against A.H.,

but from A.H.’s decision not to fight over the phone.

       The simple robbery statute does not define “force.” State v. Burrell, 506 N.W.2d 34,

27 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Injuries to a victim are

evidence of the use of force. State v. Slaughter, 691 N.W.2d 70, 76 (Minn. 2005). Also,

the statute requires only that the force or threats “precede or accompany either the taking

or the carrying away and that the force or threats be used to overcome the victim’s

resistance or compel his acquiescence in the taking or carrying away.” State v. Kvale, 302

N.W.2d 650, 653 (Minn. 1981) (emphasis added).

      The district court concluded that Davis used “physical force against the victim to

overcome her resistance in his carrying off of her cell phone.” This conclusion was

supported by findings that on July 12, 2015, Davis took A.H.’s phone and left the

townhouse; when A.H. followed Davis outside to retrieve her phone, the two parties

scuffled “with both of them rolling around on the ground.” A.H. gave up and told Davis to

keep the phone, after which Davis drove away in his car with A.H.’s phone.

      These findings were supported by A.H.’s testimony that Davis “took [my phone]

out of my hand,” and “went to his car.” She also testified that when she followed Davis to

retrieve her phone, “we had an argument and we scruffled [sic] around and ended up kind

of rolling around on the ground.” When asked to elaborate on “scruffl[ing] around,” she

testified that, “[w]e were both kind of using force on each other, pushing each [other], I


                                            14
guess, trying to grab the phone, fighting over the phone.” She then testified that she “gave

up” and “walked away.” Evidence also established that A.H. was injured during the scuffle.

Additionally, Davis testified that he “walked straight out the door” of A.H.’s residence

with her phone, then “scramble[ed]” with A.H. Davis also admitted that he did not have

permission to take A.H.’s phone.

       We conclude that the evidence, taken as a whole, and in the light most favorable to

the verdict, was sufficient to convict Davis of simple robbery because it established that

Davis carried away A.H.’s phone and used physical force to overcome her resistance or to

compel her acquiescence in his carrying away of her phone. Because the evidence was

sufficient to convict Davis of simple robbery in the first trial, we conclude that remand is

appropriate following our reversal of the simple robbery charge.

III.   Admission of A.H.’s statement

       “Evidentiary rulings rest within the sound discretion of the district court and will

not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203

(Minn. 2003) (citation omitted). On appeal, the party challenging the admission of evidence

has the burden of establishing that the district court abused its discretion, and that the party

was prejudiced by admission of the evidence. Id. Davis argues that the district court erred

by admitting A.H.’s statement to law enforcement under the residual-hearsay exception of

Minn. R. Evid. 807, and that he was prejudiced by this erroneous admission.

       Because Davis did not object to the admission of A.H.’s statement, we review for

plain error. Davis must establish (1) error, (2) that the error was plain, and (3) that the error

affected his substantial rights. State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). The


                                               15
risk of prejudicial impact from erroneously admitted evidence is lessened in a bench trial

“because there is comparatively less risk that the district court judge . . . would use the

evidence for an improper purpose or have his sense of reason overcome by emotion.” State

v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009). In particular, we note that the district court

expressly stated it did not consider A.H.’s statement in reaching its verdict. Consequently,

Davis cannot establish any prejudice.

       Even so, we address whether Davis has established error to provide guidance upon

remand. Under the residual-hearsay exception, a statement that is not specifically covered

by rule 803 or 804, but has equivalent circumstantial guarantees of trustworthiness, is not

excluded by the hearsay rule, if the court determines that:

              (A) the statement is offered as evidence of a material fact;
              (B) 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 (C) the general
              purposes of these rules and the interests of justice will best be
              served by admission of the statement into evidence. However,
              a statement may not be admitted under this exception unless
              the proponent of it makes known to the adverse party,
              sufficiently in advance of the trial or hearing, to provide the
              adverse party with a fair opportunity to prepare to meet it, the
              proponent’s intention to offer the statement and the particulars
              of it, including the name, address and present whereabouts of
              the declarant.

Minn. R. Evid. 807.

       Davis first asserts that he was not given sufficient notice of the state’s intent to offer

A.H.’s statement before trial and lacked the time to prepare for the evidence, as required

under the “interests-of-justice” provision in rule 807(c). But the record shows that the state

offered its evidence, which included A.H.’s statement, to Davis following the omnibus


                                              16
hearing on November 13, 2015, almost two months before trial. Davis did not pick up the

evidence. The state filed a notice of intent to use out-of-court statements and also informed

the district court that it had e-mailed Davis the evidence before trial. During the pretrial,

Davis stated that he did not pick up the evidence or check his e-mail. Also, when the district

court asked Davis if he wanted a continuance, he declined. Accordingly, Davis’s argument

that he received inadequate notice is without merit. See State v. Oliver, 502 N.W.2d 775,

778 (Minn. 1993) (holding informal notice of evidence satisfies the requirements in rule

807).

        Next, to determine whether the district court abused its discretion in admitting

A.H.’s statement under the residual-hearsay rule, this court applies “the totality of the

circumstances approach” to determine whether the testimony bears “equivalent

circumstantial guarantees of trustworthiness.” State v. Robinson, 718 N.W.2d 400, 409

(Minn. 2006). To this end, we examine whether: (1) there was any confrontation issue;

(2) there was any dispute over whether the declarant made the statement or what the

statement contained; (3) the reliability of the statement increased because either the

statement was against the declarant’s penal interest or the declarant was hostile to the state

and supportive of the defendant, and (4) the statement was consistent with all the other

evidence the state introduced, evidence which points strongly toward the guilt of the

accused. State v. Plantin, 682 N.W.2d 653, 659 (Minn. App. 2004) (citing State v. Ortlepp,

363 N.W.2d 39, 44 (Minn. 1985)), review denied (Minn. Sept. 29, 2004).

        In the present case, no confrontation issue arose because A.H. testified at trial,

admitted to making the statement to the officer, and was available for cross-examination.


                                             17
During her testimony, A.H. admitted that she was intoxicated at the time of the interview,

and thus could not recall telling the officer that Davis bit her. Nonetheless, her interview

was recorded, so A.H.’s identity as the declarant and the actual contents of her statement

were not in dispute. Moreover, the reliability of the statement was enhanced because A.H.

was hostile to the state and supportive of Davis; she testified that she wanted to continue a

relationship with Davis, and that she did not want him to “get in trouble.” Lastly, A.H.’s

statement to the officer is consistent with other evidence that pointed to Davis’s guilt, such

as the photographs taken of A.H. and her injuries; and testimony of the roommate, the

officer, and the detective. A.H. testified at trial that she could not remember telling the

officer what happened on the night of the incident, but A.H. did not recant.

       Accordingly, under rule 807 and the applicable caselaw, A.H.’s statement to the

officer bore sufficient circumstantial guarantees of trustworthiness. We therefore conclude

that Davis fails to prove plain error and the district court did not abuse its discretion when

it admitted A.H.’s statement under the residual-hearsay exception.

       Thus, we reverse Davis’s conviction for simple robbery and remand for proceedings

consistent with this opinion; we affirm Davis’s conviction for felony domestic assault and

uphold the district court’s admission of evidence.

       Affirmed in part, reversed in part, and remanded.




                                             18
