State of Minnesota, Respondent, vs. Paul Robert Tangen, Appellant.

State of Minnesota, Respondent, vs. Paul Robert Tangen, Appellant. A04-701, Court of Appeals Unpublished, March 22, 2005.

This opinion will be unpublished and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

A04-701

 

State of Minnesota,

Respondent,

 

vs.

 

Paul Robert Tangen,

Appellant.

 

Filed March 22, 2005

Affirmed Toussaint, Chief Judge

 

Steele County District Court

File No. K1-03-914

 

 

Mike Hatch, Attorney General, Tibor Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

 

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, Minnesota 55060 (for respondent)

 

 

John M. Stuart, State Public Defender, Lydia Maria Lillalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant challenges his conviction of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2002), arguing that the trial court abused its discretion by excluding a prior inconsistent statement of the victim.  We affirm.

FACTS

            The state charged appellant Paul Tangen with one count of third-degree assault based on an altercation that occurred between appellant and the victim, M.S., on July 20, 2003.  During the course of that afternoon both appellant and M.S. consumed alcohol in appellant's motel room.  The record indicates that appellant made inappropriate sexual remarks directed at M.S., restrained his attempt to leave the room, and hitting him until he lost consciousness.  As a result, M.S. sustained a broken left cheekbone, broken nose, cuts, and bruising to his upper chest.  Additionally, his two front teeth were knocked out, and his eyes were swollen shut for two days. 

At trial, appellant admitted that he caused M.S.'s injuries, but said he hit him in self-defense.  M.S. denied that he had ever hit anyone without being provoked while under the influence of alcohol.  Appellant sought to impeach M.S.'s testimony by introducing a partial sentencing transcript, which allegedly showed that M.S. had made inconsistent statements concerning a prior fourth-degree assault conviction.  The trial court excluded the evidence.  A jury found appellant guilty of the charged offense.  This appeal follows.

D E C I S I O N

            Appellant argues that the trial court violated his right to present a complete defense under the Confrontation Clauses of the federal and state constitutions by excluding M.S.'s sentencing statement.  Appellant argues that this statement was admissible as extrinsic evidence of a prior inconsistent statement under Minn. R. Evid. 613(b) for impeachment purposes.

            Rulings on the admissibility of evidence at trial are generally left to the trial court's discretion and will not be overturned absent an abuse of that discretion.  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000).  Even when a defendant alleges a violation of his constitutional rights because of an evidentiary ruling, we review the ruling for an abuse of discretion.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999). 

In order to impeach a witness with a prior inconsistent statement, the witness must be given a prior opportunity to explain or deny the inconsistency.  See State v. Richards, 495 N.W.2d 187, 194 (Minn. 1992); Minn. R. Evid. 613(b).  A witness may be impeached on the basis of a prior inconsistent statement only when there is foundation that the statements are "actually inconsistent."  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  "As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done."  O'Neill v. Minneapolis St. Ry. Co., 213 Minn. 514, 520, 7 N.W.2d 665, 669 (1942) (quotation omitted).  This court should also inquire whether the two expressions appear to have been produced by inconsistent beliefs.  Id.

Here, M.S. testified on cross-examination as follows:

Q.                When you drink, would you say you're aggressive or you're a happy drunk?

A.        Well, usually I'm in a good mood, you know, unless somebody does something to provoke some anger, I do get angry.  I do have a temper, but generally it's when somebody provokes it

. . .

Q.                Have you ever struck anybody unprovoked?

A.                 No.

Q.        Have you ever been under the influence of alcohol and struck somebody when you're unprovoked?

A.                 No.

Q.                Have you ever been under the influence of alcohol and struck somebody unprovoked and regretted it later?

A.                 No.  I mean, repeat the question.

Q.                Have you ever been under the influence of alcohol and struck somebody and regretted it later?

A.        I never hit anybody unprovoked.

 

At the sentencing hearing for M.S.'s fourth-degree assault conviction, M.S. stated:

 

I'd just like to say that on the night that that occurred I wish I could take it back.  I apologize to Sergeant Okerberg if he was here.  Nobody in the right mind hits a police officer.  As far as the drugs I was doing, they were prescription drugs, a pain-killer that was prescribed to me.  I'd been in the hospital in September for prolonged pneumonia, and I was in St. Mary's for two weeks and was prescribed hydrocortisone, 500 milligrams, some very strong painkiller, and I had been drinking that night.  With the two combined it was a bad mixture.  I don't do the illegal street drugs.

 

We agree with the state that M.S.'s prior statement is not inconsistent with his trial testimony.  At trial, M.S. denied that he had ever hit anyone while under the influence of alcohol without provocation.  At his sentencing hearing, M.S. admitted that he hit a police officer, but explained that he was not in his "right mind" due to the combined detrimental effects of prescription drugs mixed with alcohol.  Appellant's counsel never asked M.S. whether he had ever hit someone without provocation, while under the influence of prescription drugs mixed with alcohol.  Thus, M.S.'s denial at trial was not inconsistent with his sentencing explanation. 

Furthermore, the two expressions were not produced by inconsistent beliefs.  Before trial, the prosecutor explained M.S.'s version of the events, which led to his conviction for assaulting a police officer.  He stated that M.S. was in the process of being assaulted by someone else when he perceived someone behind him, he "just turned around and punched."  Because M.S. perceived that he was under attack, he was essentially provoked.  Thus, Saxton's trial testimony that he never hit anyone without provocation was consistent with his prior statements.

            We conclude that the trial court did not abuse its discretion by excluding M.S.'s prior statements because they were not actually inconsistent with his trial testimony.  Because the evidence was properly excluded, the trial court did not violate appellant's constitutional right to present a complete defense.  See Richards, 495 N.W.2d at 194 (recognizing that the right to offer the testimony of witnesses is in plain terms the right to present a defense).

Affirmed.