
    STATE of Minnesota, Respondent, v. William John HOGETVEDT, Appellant.
    No. CX-00-771.
    Court of Appeals of Minnesota.
    March 27, 2001.
    
      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, (for respondent).
    Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    William J. Hogetvedt, MCF — Stillwater, Bayport, MN, (pro se appellant).
    Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and SHUMAKER, Judge.
   OPINION

R.A. RANDALL, Judge

Appellant William John Hogetvedt was convicted of third-degree assault. Appellant argues that (1) the district court erred by admitting the victim’s out-of-court statements identifying appellant as her assailant under Minn. R. Evid. 803(2) (excited utterance exception) and Minn. R. Evid. 803(24) (residual exception); (2) appellant was denied his due process right to a fair trial because the state’s witnesses volunteered testimony that the court had already ruled inadmissible; and (3) the district court erred by imposing a consecutive sentence without calculating the duration using a zero criminal-history score and by departing without substantial and compelling reasons. Appellant also argues pro se that (1) the evidence was insufficient to sustain his conviction; (2) the prosecutor committed misconduct by injecting personal opinion, making disparaging remarks about appellant, inflaming the jury’s passions, and misrepresenting the evidence; and (3) he received ineffective assistance of counsel. We reverse and remand.

FACTS

On March 28,1999, P.M.H. had an argument with appellant, who is also her son, because appellant was upset that P.M.H had not informed him that his sister delivered a baby earlier in the day. P .M.H. told appellant to leave her house, and he complied. A short time later, around 7:30 p.m., P.M.H. heard a knock at her door, but she did not answer it. The events that followed are in dispute.

According to appellant, he left P.M.H’s house but came back a few minutes later after noticing a suspicious vehicle in front of P.M.H.’s house. When he came back, the door had been kicked in, and he discovered that P.M.H. had been assaulted. He attempted to help P.M.H., but she refused. Appellant went to a friend’s house and asked his friend to check on P.M.H. Once the friend arrived at P.M.H’s house, she refused his help as well. The friend drove P.M.H to her other son’s home. Her son drove her to the hospital where she was treated for multiple facial fractures. After the assault, appellant told his brother that he thought a group of “Mexicans” was responsible for P.M.H’s assault.

According to P.M.H.’s original version of the events, she told several people, including police officers, medical personnel, and her children, that appellant assaulted her. Although P.M.H. did not deny making these statements, she later changed her story and reported that appellant did not assault her. She asserted that she did not know who assaulted her, but she remembered hearing several voices, some of them with “Mexican” accents.

On April 26,1999, appellant was charged with third-degree assault. After the jury returned its guilty verdict, the district court departed from the permissible-presumptive-consecutive sentence, based on appellant’s separate conviction of a crime against a person in Isanti County. The court sentenced appellant to 60 months. Appellant appeals both his conviction and his sentence.

ISSUES

I. Did the district court err by admitting the victim’s out-of-court statements, which identified appellant as her assailant, under the excited utterance and the residual-hearsay rule exceptions?

II. Was appellant denied his due-process right to a fair trial because two of the state’s witnesses volunteered testimony that the district court had previously ruled inadmissible?

III. Did the district court err by imposing a consecutive sentence without calculating the duration using a zero criminal-history score?

IV. Based on pro se appellant’s arguments:

A.Was there sufficient evidence to sustain appellant’s conviction?
B. Did the prosecutor commit misconduct by injecting personal opinion, making disparaging remarks about appellant, inflaming the jury’s passions, and misrepresenting the evidence?
C. Did appellant receive ineffective assistance of counsel?

ANALYSIS

I. Out-of-Court Statements

Evidentiary rulings generally rest within the district court’s discretion and will not be reversed absent an abuse of that discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998). On appeal, the party claiming error in the district court’s ruling has the burden of demonstrating “both the error and the prejudice resulting from the error” and a “reversal is warranted only when the error substantially influences the jury to convict.” State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (quotation omitted).

A. Excited Utterance Hearsay Exception

Appellant argues that the district court erred by admitting as substantive evidence P.M.H’s out-of-court statements to her daughter and to Officer Blackey identifying appellant as her assailant, which were made while at the hospital on the night of the incident. Appellant contends that, contrary to the district court’s ruling, P .M.H’s statements do not meet the excited-utterance exception under Minn. R. Evid. 803(2) because too much time elapsed between the incident and the statements.

First of all, the district court did not have to reach the excited-utterance analysis. Hearsay is “a statement, other than one made by the declarant while testifying at [trial], offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801. A statement is not hearsay if the declarant testifies at trial

and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving the person, if the [district] court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification, or (D) a statement describing or explaining an event * * * made while the declarant was perceiving the event * ⅝ * or immediately thereafter.

Minn. R. Evid. 801(d)(1) (emphasis added).

In this case, P.M.H.’s statements to her daughter and to Officer Blackey identified appellant as her assailant and described the event soon after the assault occurred. These statements are not hearsay. Minn. R. Evid. 801(d)(1).

The district court, however, did not admit the statements under Minn. R. Evid. 801(d)(1). Instead, the court determined that P.M.H.’s statements qualified as an excited utterance exception to the hearsay rule. An excited utterance is defined as 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.” Minn. R. Evid. 803(2). Relevant factors in determining whether an out-of-court statement qualifies as an excited utterance include “the length of time elapsed, the nature of the event, the physical condition of the declar-ant, and any possible motive to falsify.” State v. Daniels, 380 N.W.2d 777, 782-83 (Minn.1986) (quotation omitted).

The lapse of time between the startling event and the out-of-court statement is not always determinative. Daniels, 380 N.W.2d at 783. P.M.H. was assaulted around 7:30 p.m. and was taken to the hospital an hour later. Her jaw was broken in two places; she sustained other facial fractures, including a fractured eye socket; and she was in severe pain. Because of P.M.H.’s injuries, she was under heavy medication. P.M.H. made her statement to Officer Blackey around 11 p.m., and she made her statement to her daughter sometime before speaking with Officer Blackey. While three hours had passed between the assault and the statements, given the extent of P.M.H.’s injuries and the nature of the assault, it is reasonable to conclude that she was still under stress from the incident. Further, P.M.H. testified at trial and was subject to cross-examination concerning her out-of-court statements. Since the statements at issue were admissible as witness identification statements, although the district court erred in construing them as hearsay, it is a moot point. Given these facts, the district court did not err by ruling that P.M.H.’s out-of-court statements to her daughter and to Officer Blackey that appellant assaulted her could be admitted as evidence.

B. Residual-Hearsay Exception

Appellant argues the district court erred by admitting, as substantive evidence, P.M.H.’s taped out-of-court statement to Sergeant Christiansen on the morning after the incident in which P.M .H. indicated appellant assaulted her. Appellant contends that, contrary to the district court’s ruling, P.M.H’s statement does not satisfy the residual-hearsay exception under Minn. R. Evid. 803(24).

P.M.H.’s taped out-of-court statement to Sergeant Christiansen is not hearsay. P.M.H. testified at trial and was subject to cross-examination, and her statement concerned the “identification of a person made after perceiving the person.” Minn. R. Evid. 801(d)(1)(C). The district court, again, did not admit P.M.H.’s out-of-court taped statement under Minn. R. Evid. 801(d)(1)(C). Instead, the court determined that P.M.H.’s taped statement qualified as a residual exception to the hearsay rule under Minn. R. Evid. 803(24). This exception is not favored in the law. Because we find that P.M.H.’s taped out-of-court-statement was not hearsay under Minn. R. Evid. 801(d)(1)(C), we do not have to reach the residual exception under Minn. R. Evid. 803(24).

II. Improper Testimony

Appellant asserts that during direct examination (a) P.M.H. improperly testified about appellant’s custodial status, and (b) Sergeant Christiansen, in an effort to prejudice the jury, improperly stated his opinion that appellant was guilty of assaulting P.M.H. Appellant argues that this testimony, which the witnesses testified to despite the district court’s earlier ruling that such testimony was inadmissible, denied him his “constitutional right to due process and a fair trial.”

Jury exposure “to potentially prejudicial material creates a problem of constitutional magnitude, because it deprives a defendant of the right to an impartial jury.” State v. Cox, 322 N.W.2d 555, 558 (Minn.1982) (citation omitted). The state has a duty to ensure that its witnesses know the limits of permissible testimony. State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979). When analyzing whether a defendant has been deprived of the right to an impartial jury because of potentially prejudicial matters that inadvertently come before a criminal jury, the relevant factors this court should consider in an independent evaluation of the verdict include:

the nature and source of the prejudicial matter, the number of jurors exposed to
the influence, the weight of evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.

Cox, 322 N.W.2d at 559.

During pretrial, appellant moved to exclude any reference to appellant’s custodial status and to exclude any opinion testimony, specifically.from Sergeant Christensen, as to whether appellant was guilty of assault. Regarding appellant’s custodial status, the district court ruled:

[U]nless it is necessary for the jury to become aware of [appellant’s] custodial status because of the admission of some other pieces of evidence, I don’t want any general references by any witness coming into this courtroom talking about [appellant] being in prison or anything of that nature. * * ⅜ And I expect the County Attorney to caution any of the State’s [witnesses] to that effect.

Regarding opinion testimony as to whether appellant was guilty of assault, the district court ruled:

Certainly with regard to the issue of Sergeant Christensen making statements as to his opinion as to [appellant’s] guilt, that would be totally improper. And I expect you to caution Sergeant Christensen when he testifies that such opinions are his alone and are to be kept to himself.

(Emphasis added.)

During P.M.H.’s direct examination, the prosecutor asked, “How long after the assault in March was it until you had phone contact with [appellant]?” P.M.H. replied, “That wasn’t up until he was arrested in Isanti and he was going to trial up in Isanti.” Immediately after this testimony, appellant requested a mistrial. He believed that the statement was highly prejudicial because it referred to appellant’s custody status and that jury instructions would not sufficiently repair the harm. The court ruled that P.M.H.’s reference was to an arrest in Isanti and a trial in Isanti, but that she had not referenced appellant’s custodial status. Thus, the court instructed the jury to disregard P.M.H’s answer as nonresponsive and instructed it not to consider the answer when assessing the Issues of the case.

During Sergeant Christensen’s direct examination, the prosecutor elicited the following testimony:

Q: And why did [P.M.H.] call you?
A: She stated that she was not sure of what was going on with the case. And that she was changing her mind about * * * the whole thing.
Q: Did she make any statements regarding [appellant]?
A: She just said that it wasn’t * * * [appellant] who had assaulted her.
Q: And what was your response when she said that?
A: Well, I told her * * * that I believed it was [appellant] that assaulted her.

(Emphasis added.) After appellant objected, the court ruled that Sergeant Christensen’s answer be stricken from the record. Additionally, the court instructed the jury that Sergeant Christensen’s opinion was not evidence and that only the jury’s opinion in the case mattered. Further, as part of its final jury instructions, the court advised:

During trial I have ruled on objections to receiving certain testimony * * * in evidence. * * * [Y]ou are to disregard all evidence that has been stricken from the record.

Standing alone, P.M.H.’s testimony might not have prevented appellant from receiving a fair trial. That testimony is barely relevant, if at all, to the state’s case. It could be classified as prejudicial because of the negative inference, but, by itself, we do not find reversible error. The court correctly stated that P.M.H. did not explicitly refer to appellant’s custodial status; instead, she merely referenced his arrest and trial. Potential harm that could have arisen from the jury’s inference regarding appellant’s custodial status based on P.M.H’s statement was adequately cured by the court’s jury instruction to disregard P.M.H’s answer as nonrespon-sive.

However, Sergeant Christensen’s testimony is egregious. In essence, he told the jury he believed appellant was guilty of assaulting P.M.H. The district court emphasized that opinion testimony of this nature would be “totally improper” when it made its pretrial in camera ruling. The district court specifically instructed the prosecuting attorney to caution Sergeant Christensen that he should keep any opinion as to guilt to himself. This ruling of the district court was disregarded and Sergeant Christensen’s opinion as to guilt went to the jury. Given Sergeant Christensen’s status as a police officer, he may have unduly influenced the jury. The court’s ruling to strike that portion of his testimony and provide a curative jury instruction may not have been effective in reducing this prejudice.

The district court specifically instructed the state to counsel Sergeant Christensen regarding permissible testimony. The state had an obligation to follow through with the court’s instruction. We can only conclude that either Sergeant Christensen intentionally ignored the court’s instruction, or the state’s attorney failed to follow the court’s specific instruction. By definition, it has to be one or the other. We dismiss the state’s argument that Sergeant Christensen “did not express any personal opinion” that appellant was guilty. A review of Sergeant Christensen’s testimony demonstrates that he did express his personal opinion as to who assaulted the victim, and that makes his testimony particularly harmful. Because Sergeant Christensen’s testimony was prejudicial, appellant is entitled to a new trial. See State v. Flowers, 261 N.W.2d 88, 89 (Minn.1977) (stating when prosecutors and police officers try to inject into “trial indirectly matters which they know they cannot introduce directly, the only solution is to ⅜ * * try the case over”).

III. Consecutive Sentence Calculation

Because we are reversing and remanding this case for a new trial, we do not have to reach this issue. However, we point out that both parties agree the district court erred by failing to calculate appellant’s two consecutive sentences using a zero criminal-history score. See Minn. Sent. Guidelines II.F (providing that a zero criminal-history score or mandatory minimum for offense, whichever is greater, must be used in determining presumptive duration for permissive-consecutive sentences). Appellant should have received one year and one day for a permissive consecutive sentence.

IV. Pro Se Arguments

Appellant argues that (1) because P.M.H. retracted her assertion that appellant assaulted her, there is no evidence on which the jury can rely to establish his identity as her assailant; (2) the prosecutor committed misconduct in his closing argument by injecting his personal opinion regarding witness credibility, disparaging the defense, and inflaming the jury’s passions; and (3) he received ineffective assistance of counsel.

Because we are reversing and remanding this case for a new trial, we do not address appellant’s pro se arguments.

DECISION

Appellant was denied a fair trial when the state’s witness, a police officer, disregarded a specific court instruction to refrain from testifying as to his personal opinion regarding appellant’s guilt. The district court erred by imposing two consecutive sentences without calculating the duration using a zero criminal-history score.

Reversed and remanded. 
      
      . Minn. R. Evid. 803(24) provides that an out-of-court statement, which is not covered by any other hearsay exception, will be excepted from the hearsay rule if it has "equivalent circumstantial guarantees of truthworthiness.” burglary, kidnapping, false imprisonment, manslaughter, robbery, witness tampering, criminal sexual conduct, escape from custody, arson, drive-by shooting, harassment and stalking, possession or unlawful use of a firearm, felony violation of chapter 152, and any attempt thereof. Minn.Stat. § 609.11, subd. 9 (1998).
     