State of Minnesota, Respondent, v. Nathan Veesenmeyer, Appellant.

State of Minnesota, Respondent, v. Nathan Veesenmeyer, Appellant. A04-555, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-555

 

State of Minnesota,

Respondent,

 

v.

 

Nathan Veesenmeyer,

Appellant.

 

Filed March 15, 2005

Affirmed

Huspeni, Judge*

 

 

Ramsey County District Court

File No. T9-04-4718

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Manuel Cervantes, St. Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

Juan G. Hoyos, Assistant Public Defender, 101 East 5th Street, Suite 1808, St. Paul, MN 55101 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges his conviction of obstructing legal process, arguing that (1) the statements made by his girlfriend to police at the scene were "testimonial" in nature and were admitted at trial in violation of his right to confrontation, and (2) the evidence is insufficient to support his conviction.  Because we conclude that the statements were properly admitted and that the evidence supports the obstructing-legal-process conviction, we affirm. 

FACTS

Officer Brian Hall and his partner, Officer Michael Meyer, were patrolling in their marked squad car when they noticed a vehicle in the driveway at 1368 Minnehaha in St. Paul.  This was a "well-known address" to police, and they recognized from "previous contacts" that the driver of that vehicle was appellant Nathan Veesenmeyer.  Officers Hall and Meyer were also aware that appellant's driver's license had been suspended. 

Officer Hall testified that they observed the vehicle moving down the driveway with its headlights on.  The officers then used their spotlight to confirm that appellant was the driver.  Officer Hall testified that as the squad car began making a U-turn, appellant exited his vehicle, which he left parked "slightly out into the intersection," and began running toward the house.  At that point, Officer Meyer exited the squad car and pursued appellant on foot, while Officer Hall drove the squad car into the alley behind the house and called for back-up.  Officer Hall testified that he did not tell appellant that he was under arrest or order him to stop. 

Additional officers arrived at the house and began to investigate whether appellant had entered the residence.  Officer Hall observed that the front door "was slightly opened . . . the door frame had been splintered . . . and that the metal locking mechanisms had been bent."  He also observed that there were shoe prints on the side door.  Based on this evidence, officers concluded that appellant had kicked in the door to enter the house.  Consequently, the officers tried reaching the persons inside by telephone.  When their calls were not answered, they entered the house, which was dark.  Police announced their presence and a female voice, which they recognized as Mandy Kielsa's, called out from upstairs.  When an officer asked if appellant was there, Kielsa responded that he was, and appellant also responded that he was there.  Police subsequently found appellant hiding with Kielsa, a friend of hers, and her four-year-old son in a bedroom.  Appellant was then handcuffed and arrested without incident. 

When Officers Hall and Meyer spoke with Kielsa about what had happened, she told them that appellant "had come to the house to bring her and her son McDonald's, he came to the front door only, dropped off the food, left, and a couple seconds later he kicked in the front door and told her and the other persons to go upstairs and be quiet."  Officer Hall observed that Kielsa was "very nervous" and was "shaking" as she described what had happened.

Appellant was charged with one count of misdemeanor obstruction of legal process in violation of Minn. Stat. § 609.50, subd. 1 (2002), and one count of misdemeanor driving after suspension in violation of Minn. Stat § 171.24, subd. 1 (2002).  Immediately before trial, the district court ruled that Kielsa was unavailable to testify and her statements to police at the scene would be admissible as excited utterances.  Following a jury trial, appellant was found guilty of both offenses.  This appeal follows. 

D E C I S I O N

I.

Appellant argues that the district court abused its discretion in admitting Kielsa's out-of-court statements to police.  Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Generally, if this court concludes that the district court improperly admitted evidence, we must determine "whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  However, if the evidentiary ruling involves constitutional error, we must "look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict."  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  If the error is harmless beyond a reasonable doubt, a new trial is not required.  Id.

Here, the district court admitted the statements after determining that they were "excited utterances."  See Minn. R. Evid. 803(2) (generally permitting hearsay consisting of "[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," regardless of whether the declarant is available to testify).  Furthermore, the district court considered the application of the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and concluded that it did not prohibit the admissibility of excited utterances. 

In Crawford, the Supreme Court held that the Sixth Amendment bars out-of-court "testimonial" statements from admission into evidence unless (1) the hearsay declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant.  124 S. Ct. at 1374.  Although Crawford did not define the term "testimonial," it did list three categories of statements that would be considered testimonial:  (1) ex parte in-court testimony or its functional equivalent, including affidavits, custodial examinations, prior testimony, or similar pretrial statements; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  Id. at1364 (quotation omitted). 

In particular, the Court thoroughly addressed the issue of statements procured through questioning or interrogation by police officers, magistrates, justices of the peace, and government officers.  Id. at 1364-65.  The Court noted that statements taken by police officers in the course of interrogations "fall squarely within" the class of testimonial statements.  Id. at1365.  The Court further stated that the "[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abusea fact borne out time and again throughout a history with which the Framers were keenly familiar."  Id. at1367 n.7. 

The question we must answer in this case is whether Kielsa's disclosures constituted statements made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  See id. at 1364.  This court's recent decision in State v. Wright, 686 N.W.2d 295 (Minn. App. 2004), review granted (Minn. Nov. 23, 2004), is instructive. 

In Wright, this court examined whether it was error to admit, as excited utterances, statements made in a 911 call and statements made to police at the scene of the crime immediately following an assault.  Id. at 300-01.  Thiscourt found no error and held that "statements made during the 911 call, moments after the criminal offense and under the stress of that event, are not ‘testimonial' under Crawford."  Id.  But this court was not required in Wright to address whether the statements made to police who responded to the scene were "testimonial" within the meaning of Crawford.  Id. at 305.  Nevertheless, this court did state:

We do not intend to suggest, however, that these statements, if reviewed, would be determined to be "testimonial."  We are not convinced that a police response to an incident when the victims are in distress and primarily concerned with ensuring that their assailant has been apprehended satisfies any of the formulations or examples of testimonial hearsay provided by the Supreme Court.  Crawford, 124 S. Ct. at 1364, 1374.  This dialogue, although certainly part of an investigative process, is not an "interrogation" and does not result in a formal statement.  See, e.g., Hammon, 809 N.E.2d at 952-53; Fowler v. State, 809 N.E.2d 960, 964 (Ind. App. 2004) (applying rationale stated in Hammon).

 

The narrative statements that [the witnesses] made to the officers were made minutes after their 911 call.  [The defendant] was taken into custody while they were still talking to the 911 operator and the officers who talked to [the witnesses] proceeded directly to their apartment after [the defendant] was searched and placed in a squad.  The district court found that [the witnesses] were still deeply affected by the startling events.  Their demonstrated emotional distressthe very quality that justified the admission of their statements as excited utterancesis inconsistent with a determination that they were made with a belief that such statements "would be available for use at a later trial."  Crawford, 124 S. Ct. at 1364.

 

The statements are fundamentally different from "testimonial" statements taken in anticipation of trial.  They lack the formalized nature of a deposition, affidavit, interrogation, or grand jury testimony.  [The witnesses'] statements are highly unlikely to be calculated for effect in future legal proceedings.  Their narrative statements following the stressful events are neither "solemn" declarations, id. (quotation omitted), nor accounts of a crime made "with an eye toward trial."  Id. at 1367 n.7. 

 

Wright, 686 N.W.2d at 305. 

The observations of the Wright court regarding statements made to officers upon their arrival at a scene to which they were called, while not necessary to the resolution of the issues in that case, are nonetheless persuasive.  And perhaps it is reasonable to find those observations more persuasive yet under the facts of this case, where officers were not called to the scene, but instead arrived without being summoned.  Arguably, a witness who calls 911 and seeks the assistance of police would be less likely to engage in an "excited utterance" than one, such as Kielsa here, upon whose premises the officers arrived with little or no advance announcement or expectation.  We agree with the district court that Kielsa's statements were made at the scene of an offense while she was in an excited state, rather than during any kind of formal police interrogation.  As such, they were not "testimonial" within the meaning of Crawford.         

The Indiana Court of Appeals' recent decision in Hammon v. State, 809 N.E.2d 945 (Ind. App. 2004), also provides guidance on the Sixth Amendment issue before us and is persuasive.  The Hammon court held that statements of a domestic abuse victim to police, made after the victim called for help and was informally questioned by police upon their arrival to determine what happened, were not "testimonial" under Crawford.  Id. at 952-53.  The court reasoned: 

It appears to us that the common denominator underlying the Supreme Court's discussion of what constitutes a "testimonial" statement is the official and formal quality of such a statement.  [The victim's] oral statement was not given in a formal setting even remotely resembling an inquiry before King James I's Privy Council; it was not given during any type of pre-trial hearing or deposition; it was not contained within a "formalized" document of any kind.

 

The closer question is whether [the victim's] statement was produced during the course of a police "interrogation."  Admittedly, [the victim] gave her statement in direct response to questioning by [a police officer].  However, we observe that the Supreme Court chose not to say that any police questioning of a witness would make any statement given in response thereto "testimonial"; rather, it expressly limited its holding to police "interrogation."  We conclude this choice of words clearly indicates that police "interrogation" is not the same as, and is much narrower than, police "questioning."  To the extent the Supreme Court said that it used the term "interrogation" "in its colloquial . . . sense," we believe that reference to a lay dictionary for a definition of "interrogation" is appropriate.  Id. at ___, 124 S. Ct. at 1365 n.4.  "Interrogation" is defined in one common English dictionary as "To examine by questioning formally or officially."  The American Heritage College Dictionary 711 (3d ed. 2000).  This is consistent with our prior observation that the common characteristic of all "testimonial" statements is the formality by which they are produced.  We also believe that "interrogation" carries with it a connotation of an at least slightly adversarial setting.  See Roget's Thesaurus II 556 (Expanded ed. 1988) (listing as first definition of "interrogate" as "To question thoroughly and relentlessly to verify facts: interrogate the captured soldier."). 

 

We thus hold that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not "testimonial."  Whatever else police "interrogation" might be, we do not believe that word applies to preliminary investigatory questions asked at the scene of a crime shortly after it has occurred.  Such interaction with witnesses on the scene does not fit within a lay conception of police "interrogation," bolstered by television, as encompassing an "interview" in a room at the stationhouse.  It also does not bear the hallmarks of an improper "inquisitorial practice."  See Crawford, 541 U.S. at ___, 124 S. Ct. at 1364.  Thus, we conclude that [the officer's] questioning of [the victim] at her residence shortly after the incident occurred does not qualify as "police interrogation" and [the victim's] statements at that time were not "testimonial."  The new rule announced in Crawford does not affect their admissibility. 

 

Id. at 952 (footnote omitted); see also Wright, 686 N.W.2d at 302, 310 (citing Hammon as persuasive authority).  Applying the reasoning in Wright, as supported by that in Hammon, we conclude that the district court did not abuse its discretion in allowing Officer Hall to testify regarding the statements of Kielsa, and that appellant's Sixth Amendment right to confront witnesses against him was not violated by introduction of those statements into evidence.

II.

 

Appellant also argues that the evidence is insufficient to sustain his conviction of obstructing legal process.  When considering a claim of insufficient evidence, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  "[A] conviction may rest on the testimony of a single credible witness," and it is the jury that "determines the weight and credibility of individual witnesses."  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).

            A person who intentionally "obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties" is guilty of misdemeanor obstructing legal process.  Minn. Stat. § 609.50, subd. 1(2) (2002).  "[I]f the act was accompanied by force or violence or the threat thereof," the offense becomes a gross misdemeanor.  Minn. Stat. § 609.50, subd. 2(2) (2002). 

            The Minnesota Supreme Court has stated that Minn. Stat. § 609.50 "is directed at a particular kind of physical act, namely, physically obstructing or interfering with an officer."  State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988).  The court also stated that "physically obstructing or interfering with a police officer involves not merely interrupting an officer but substantially frustrating or hindering the officer in the performance of his duties."  Id.  In limited circumstances, however, the statute may also be used to punish fighting words or "any other words that by themselves have the effect of physically obstructing or interfering with a police officer in the performance of his duties."  Id.; see also State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001).  But the statute does not apply to mere oral criticism aimed at a police officer.  Krawsky, 426 N.W.2d at 878.

            Here, the record demonstrates that after police observed a vehicle moving down the driveway with its headlights on, they used their spotlight to confirm that appellant was the driver.  Appellant looked directly into the spotlight, then abandoned the car at the end of the driveway, partially blocking the intersection, and took off running.  Although Officer Meyer pursued him on foot, there is evidence that appellant nevertheless forced his way into the residence and attempted to hide from police in a dark bedroom.  Neither appellant nor the other persons inside would answer the telephone, and police were forced to enter the home in order to apprehend appellant.  Appellant cooperated only after police entered the residence and Kielsa informed them that he was there.   

            Drawing legitimate inferences from the evidence, the jury was free to find that appellant knew that police were attempting to apprehend him, but nevertheless continued to flee and hide in order to resist and/or interfere with the officers' attempts to perform their official duties.

            Appellant appears to argue that the evidence of obstruction of legal process is insufficient because he had no physical contact with the officers.  There is no merit to this argument.  Appellant was charged with and convicted of only misdemeanor obstruction of legal process.  There is no requirement of physical contact in that charge.  See Minn. Stat. § 609.50, subd. 1(2).  If the obstruction is accompanied by physical contact, the offense may be charged as a gross misdemeanor.  Minn. Stat. § 609.50, subd. 2(2).  Appellant was not charged with a gross misdemeanor.  The evidence is sufficient to support appellant's conviction of misdemeanor obstruction of legal process.

            Affirmed.

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