                          This opinion will be unpublished and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
                                     A15-0622

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Eric Jamison Brewer,
                                         Appellant.

                                   Filed April 11, 2016
                                        Affirmed
                                    Schellhas, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-4379

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of felony domestic assault, arguing that the

district court abused its discretion by admitting hearsay evidence and excluding other

evidence. We affirm.

                                          FACTS

       On June 14, 2014, witnesses observed appellant Eric Brewer yell at his girlfriend,

G.W., calling her a b-tch; follow her to a bench in a bus shelter; put her in a headlock; and

repeatedly punch her. One witness heard shouting from the bus shelter and saw Brewer

holding G.W. “in sort of a headlock and punching her on the head.” Two Metro Transit

Police Department officers crossed the street toward Brewer, who stood up, grabbed

G.W.’s purse, and walked away. The officers approached Brewer, retrieved G.W.’s purse,

and placed Brewer in handcuffs. G.W. was crying. Although G.W. initially told the officers

that Brewer had assaulted her and “needed to go to jail,” she subsequently stopped

cooperating with the officers.

       Respondent State of Minnesota charged Brewer with one count of felony domestic

assault in violation of Minn. Stat. § 609.2242, subd. 4 (2012). At a pretrial hearing, Brewer

discharged his court-appointed public defender and proceeded pro se with court-appointed

advisory counsel. A jury found Brewer guilty as charged, and the district court sentenced

Brewer to 23 months’ imprisonment.

       This appeal follows.




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                                      DECISION

       Brewer seeks reversal of his conviction and a new trial, arguing that the district court

abused its discretion by admitting hearsay statements and excluding evidence that Brewer

sought to subpoena G.W. to testify at trial. “Evidentiary rulings rest within the sound

discretion of the trial court and will not be reversed absent a clear abuse of discretion. On

appeal, the appellant has the burden of establishing that the trial court abused its discretion

and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.

2003) (citation omitted).

Admitted evidence

       The district court admitted testimony regarding G.W.’s statements to the police

officers at the scene of the assault. Brewer argues that the court abused its discretion by

admitting the statements, although he does not argue that the admission of the statements

violated the Confrontation Clause. Issues not briefed on appeal are forfeited. See Rhodes

v. State, ___ N.W.2d ___, ___, 2016 WL 626044, at *4 n.3 (Minn. Feb. 17, 2016) (noting

defendant’s failure to address issue in appellate brief and stating that “[a]s a result, that

issue is forfeited”). Raising a hearsay issue does not preserve an unraised confrontation

issue. Cf. State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (noting defendant’s

“exclusive focus” on specific hearsay exception in district court and stating that defendant

failed to preserve for appeal related challenge under Confrontation Clause). We limit

review to the rules of evidence.

       During his cross-examination of one of the police officers, Brewer asked whether

G.W. had any injuries. The officer answered, “[G.W.] was not cooperative after a while,


                                              3
after she said that Mr. Brewer needed to go to jail and he assaulted her, then she stopped

cooperating.” The district court overruled Brewer’s hearsay objection. Brewer also asked

the officer whether G.W. indicated to him that she was hurt, and the officer answered, “No,

she just said she was assaulted.” The court again overruled Brewer’s objection, and Brewer

whispered, “She never said that sh-t, man.” On redirect examination, the prosecutor asked

the officer, “When you first talked to [G.W.], what did she say about whether she was

assaulted?” The officer again testified, “[G.W.] told us that [Brewer] assaulted her and he

needed to go to jail.”

       Relying on State v. Litzau, 650 N.W.2d 177 (Minn. 2002), Brewer argues that

G.W.’s statements were inadmissible hearsay. “‘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). “Hearsay is inadmissible unless an

exception applies.” State v. Gatson, 801 N.W.2d 134, 150 (Minn. 2011) (citing Minn. R.

Evid. 802).

       But “[a] statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition” is admissible hearsay.

Minn. R. Evid. 803(2). “The basic elements of an ‘excited utterance’” are “(a) that there be

a startling event or condition, (b) that the statement relates to the event or condition, and

(c) that the statement is made under the stress caused by the event or condition.” State v.

Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (citing Minn. R. Evid. 803(2)). Relevant

factors for determining whether a statement qualifies as an excited utterance include “‘the

length of time elapsed, the nature of the event, the physical condition of the declarant, any


                                             4
possible motive to falsify, etc.’” State v. Daniels, 380 N.W.2d 777, 782–83 (Minn. 1986)

(quoting Minn. R. Evid. 803(2) 1977 comm. cmt.); see also State v. Bauer, 598 N.W.2d

352, 366 (Minn. 1999) (concluding that testimony concerning declarant’s statement that

defendant had threatened to shoot her was admissible as excited utterance because

declarant was “extremely agitated, upset, and afraid,” which “indicate[d] that at the time

[declarant] made the statement, [she] was still under the stress caused by the threat”).

       Brewer’s reliance on Litzau is misplaced. In Litzau, the supreme court addressed

testimony regarding an informant’s tip to police and did not discuss the excited-utterance

exception to the hearsay rule. See 650 N.W.2d at 183 (“We agree with appellant that

testimony to the effect that the police had received a tip from a ‘reliable source’ who said

that appellant was suspected of possessing and ‘was carrying—transporting drugs’ in his

car was inadmissible hearsay.”). Statements made to police under the stress of a startling

event may be admitted as excited utterances. See State v. Taylor, 650 N.W.2d 190, 197,

205 (Minn. 2002) (concluding that district court properly ruled that recording of 911 call

qualified as, among other things, excited utterance, where defendant argued with and struck

declarant); Edwards, 485 N.W.2d at 912, 914 (concluding that district court abused its

discretion by ruling that declarant’s statements to police were not excited utterances where

declarant called police about one minute after sexual assault and police arrived at scene

five to six minutes later and questioned declarant “shortly after the event”).

       Here, the record demonstrates that G.W. made her statements to the police officers

while under the stress of Brewer’s assault. We conclude that the district court did not abuse

its discretion by admitting G.W.’s statements because her statements were admissible as


                                             5
excited utterances. And even if the court erred by admitting G.W.’s statements, any error

was harmless. “If testimony was erroneously admitted, [appellate courts] review for

harmless error.” State v. Yang, 774 N.W.2d 539, 554 (Minn. 2009). “If no constitutional

right was implicated, [appellate courts] will reverse only if the district court’s error

substantially influenced the jury’s decision.” State v. Vang, 774 N.W.2d 566, 576 (Minn.

2009) (quotation omitted). Brewer does not argue that the admission of G.W.’s statements

violated his constitutional rights. We therefore consider only whether the verdict was

substantially affected by the admission of G.W.’s statements. See State v. Valtierra, 718

N.W.2d 425, 435 & n.4 (Minn. 2006) (noting higher standard for harmless error on review

for constitutional error in admission of evidence and stating that “[defendant] does not

argue that the error affected his constitutional rights, so we inquire only whether the verdict

was substantially influenced by the error”).

       Several witnesses testified that Brewer swore and yelled loudly at G.W. All of the

witnesses testified that Brewer placed G.W. in a headlock. Two witnesses observed Brewer

repeatedly punching G.W.’s head, and one of the police officers saw a “punching motion

towards [G.W.’s] head, neck, [and] face area.” We conclude that any error in the admission

of testimony regarding G.W.’s statements to the officers did not substantially influence the

jury’s verdict and therefore was harmless.

Excluded evidence

       Brewer argues that the district court abused its discretion by excluding his testimony

that he sought to subpoena G.W. to testify at trial. “[Appellate courts] will not




                                               6
reverse . . . rulings [excluding a defendant’s evidence] absent a clear abuse of discretion.”

State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).

       On the first day of trial, the district court noted that Brewer had “submitted five

subpoenas for service on [G.W.] . . . [a]t various addresses.” The court also noted that two

of the subpoenas were for addresses in Hennepin County and stated that it “couldn’t assist

with those” and that “with the cooperation of the civil division, Ramsey County Sheriff’s

Office, there was an effort to serve the other three [subpoenas].” After the state rested, the

court provided Brewer with the returns of service from the Ramsey County Sheriff’s

Office. G.W. did not appear, and Brewer sought to introduce evidence of his attempts to

subpoena G.W. The court denied Brewer’s request, and Brewer argues that the court

thereby abused its discretion because the subpoena evidence was “highly relevant” and

“makes his testimony that no assault occurred more probable.” Brewer’s argument is

unavailing. He has cited no case in which the exclusion of evidence about a defendant’s

attempts to obtain a witness’s testimony was determined to be an abuse of discretion, and

we are unaware of any legal authority that supports Brewer’s argument. In the absence of

such authority, we conclude that the district court did not abuse its discretion by excluding

the subpoena evidence.

       Moreover, any error in the exclusion of the subpoena evidence was harmless. “A

harmless error analysis applies to the erroneous exclusion of evidence that violates the

defendant’s right to present evidence.” State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).

“If a trial court’s evidentiary ruling is determined to be erroneous, and the error reaches the

level of a constitutional error, such as denying the defendant the right to present a defense,


                                              7
[the] standard of review is whether the exclusion of evidence was harmless beyond a

reasonable doubt.” Richardson, 670 N.W.2d at 277 (quotations omitted). “On appeal, the

appellant has the burden of establishing that the trial court abused its discretion and that

appellant was thereby prejudiced.” Amos, 658 N.W.2d at 203. Brewer has failed to meet

his burden. We agree with the state that G.W.’s absence at trial was likely more detrimental

to the state than it was to Brewer. Brewer took advantage of G.W.’s absence, arguing in

closing that the state had not satisfied its burden of proof because G.W. did not testify that

she was assaulted. Given the strength of the state’s evidence against Brewer, a reasonable

jury would have reached the same verdict even if the district court had admitted the

subpoena evidence. We conclude that any error by the district court in excluding the

subpoena evidence was harmless beyond a reasonable doubt.

       Affirmed.




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