State of Minnesota, Respondent, vs. Robert M. Rodriguez, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Robert M. Rodriguez,
Appellant.

Affirmed

Hennepin County District Court

File No. 99090617

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Crippen, Presiding Judge, Foley, Judge,* and Holtan, Judge.**

CRIPPEN, Judge

            Following conviction and sentencing for first-degree burglary, appellant challenges the trial court's exercise of discretion on two evidentiary issues and a sentencing departure.  We affirm.

In the early morning hours of September 10, 1999, appellant broke into an elderly woman's home and threatened to kill her if she did not give him her purse and money.  Appellant was convicted of first-degree burglary.  The trial court sentenced appellant to 240 months of imprisonment pursuant to Minn. Stat. § 609.1095, subd. 2 (1998) (providing increased sentences for repeat offenders). 

Appellant contends that the trial court denied him his constitutional right to compulsory process by not permitting him to call the 85-year-old victim as a witness.  To establish a violation of his right to compulsory process, appellant must show that (1) testimony was improperly excluded and (2) the excluded testimony was both material and favorable to his defense.  State v. Lee, 480 N.W.2d 668, 670 (Minn. App.), rev'd on other grounds, 494 N.W.2d 475 (Minn. 1992).  Even if there was a violation of the right to compulsory process, reversal is precluded if the state can show that the violation was harmless.  Lee, 480 N.W.2d at 672.

In this case, there was sufficient evidence to permit the trial court to find that the victim was not competent to testify under Minn. R. Evid. 601.  In addition, appellant has not shown that the excluded testimony was favorable to his defense.  Finally, even if the trial court was mistaken, the error was harmless beyond a reasonable doubt because of the overwhelming evidence of appellant's guilt.

2.         Appellant's Statements to the Police

            Appellant argues that the trial court erred by not permitting defense counsel to elicit testimony on cross-examination about statements appellant made to an arresting officer. The court excluded the testimony on the basis that the questions about the statements were beyond the scope of the direct examination. 

The scope of cross-examination is largely left to the discretion of the trial court, and absent an abuse of discretion the trial court's ruling must be upheld.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  A careful examination of the trial transcript confirms that questions about the statements were beyond the scope of the direct examination; thus, the trial court did not abuse its discretion by excluding the statements.

The trial court also concluded that the statements were hearsay and did not qualify as excited utterances.  The determination of whether a statement qualifies as an excited utterance rests within the trial court's discretion.  State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992).

The record supports the trial court's finding that appellant was not under the aura of excitement when he made the statements.  Moreover, because the statements were self-serving and were not in response to a question but were offered up by appellant, the trial court was permitted to find that the statements did not qualify as excited utterances.  Hase v. American Guar. & Liab. Ins. Co., 312 Minn. 271, 274, 251 N.W.2d 638, 641 (1977).  The trial court did not abuse its discretion by finding that the statements were not admissible as excited utterances.

Finally, even if the trial court erred in excluding the statements from evidence, such error was harmless beyond a reasonable doubt.  See generally State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (holding that reviewing court may uphold verdict despite error in refusing to admit evidence if reasonable jury would have reached the same verdict if the evidence had been admitted).

3.         Appellant's Sentence

            Appellant argues that the trial court erred by departing upward to the statutory maximum of 240 months from the presumptive sentence of 60 months pursuant to Minn. Stat. § 609.1095, subd. 2 (1998) (permitting departure up to statutory maximum for certain repeat offenders).  The decision to depart from a presumptive sentence is for the trial court, and this court will reverse only in the event the trial court clearly abuses its discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

There is no dispute that appellant was over 18 when he committed the crime and that he had two or more prior convictions for violent crimes at the time of sentencing.  In addition, the record supports the trial court's finding that appellant is a danger to public safety because appellant (1) has a long history of dangerous criminal activity, see § 609.1095, subd. 2(2)(i); and (2) committed the present offense against a victim whom he knew was particularly vulnerable due to her age and reduced physical capacity, see id., subd. 2(2)(ii).  The trial court did not abuse its discretion in departing upward from the presumptive sentence pursuant to Minn. Stat. § 609.1095, subd. 2.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.