Richard D. Heil, Relator, vs. City of Minneapolis, Respondent.

 STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-275

State of Minnesota,
Respondent,

vs.

Kevin Andrew Dentz,
Appellant.

 Filed December 28, 1999
 Affirmed
 Mulally, Judge[*]

Hennepin County District Court
File No. 98014851

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

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

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Forsberg, Judge,[**] and Mulally Judge.

 U N P U B L I S H E D   O P I N I O N

 MULALLY, Judge

On appeal from a conviction for third-degree assault, Kevin Dentz argues that (1) the trial court's admission into evidence of the victim's out-of-court statements violated his constitutional right to confront the witnesses against him; (2) the state presented insufficient evidence to prove that Dentz intended to cause the victim fear of bodily harm when he threw a mug at her; and (3) the trial court erred in refusing to instruct the jury that for a conviction to be based on circumstantial evidence, the circumstantial evidence must be such as to exclude every reasonable hypothesis except that of guilt. We affirm.

FACTS

Dentz's conviction arose out of an incident during which he threw a ceramic mug at the victim, his fiancée. The mug shattered and lacerated the victim's scalp, and the victim called 911. Minneapolis police officer Todd Sauvageau, who responded to the 911 call, found the victim in the bedroom of the apartment where she lived with Dentz. Blood was running down her face, and her shirt was covered with blood. Sauvageau described the victim as frightened, shocked, and very upset and disturbed. The victim stated that she and Dentz were arguing, and he threw a coffee cup at her. She said the cup came out of nowhere, and "she had never been hit so hard with a coffee cup before."

Dr. Stephen Smith, the physician who treated the victim in the emergency room, testified that there was a one and one-half inch wound on the right side of the victim's forehead and that six staples were required to close the wound. The victim told Smith that the wound occurred when her significant other threw a ceramic cup at her and it broke on her scalp.

The following day, Minneapolis police sergeant Bruce Kohn took statements from Dentz and the victim. Dentz told Kohn that he threw the cup in the victim's direction after she refused his request for a drink. Initially, Dentz told Kohn that he was about an arm's length away from the victim when he threw the cup, but later he said he was in the doorway, which was about 12 feet away from the bed where the victim was sitting. Dentz claimed that the cup did not hit the victim but rather hit the wall a couple of feet from her head. Dentz's trial testimony was consistent with his statement to Kohn.

The victim told Kohn that Dentz came into the bedroom and repeatedly asked her for another drink. After she told him to leave her alone and go into the other room, he threw the cup at her from the doorway. The cup hit the victim on the right side of her head and shattered.

The victim did not cooperate with the state's prosecution of Dentz and did not appear to testify at trial. The trial court found that the state validly served the victim with a subpoena by delivering it to the apartment where she and Dentz lived and leaving it with Dentz, although Dentz refused to accept it and threw it out into the hallway. The court also found that the victim was an unavailable witness, that Dentz caused her unavailability by throwing away the subpoena, and that, in causing the victim's unavailability, Dentz waived his right to confrontation.

 D E C I S I O N

Evidentiary rulings generally rest within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). Both the state and federal constitutions grant the accused in a criminal trial the right to confront the witnesses against him. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Generally, for an out-of-court statement to be admissible when the witness is not present to testify at trial, the Confrontation Clause requires a showing that the witness is unavailable and that the statement

bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980).

  Unavailability

  A declarant is unavailable if she "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance * * * by process or other reasonable means." Minn. R. Evid. 804(a)(5). "The ultimate question [in determining unavailability] is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness." Roberts, 488 U.S. at 74, 100 S. Ct. at 2543.

The record supports the trial court's findings that the victim was unwilling to cooperate with the state's prosecution of Dentz; she attempted to avoid service; the state made good-faith efforts to serve her with a subpoena; and she and Dentz were residing at the apartment where the process server attempted to leave a copy of the subpoena with Dentz. Valid service of a subpoena upon a person can be effected by "leaving a copy at the person's usual place of abode with some person of suitable age and discretion then residing therein." Minn. R. Crim. P. 22.03. The trial court did not err in finding that the victim was unavailable. Moreover, the Confrontation Clause does not require a showing of unavailability when a statement is admitted under a firmly rooted exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 743 (1992).

  Reliability

  The trial court admitted the victim's statement to Sauvageau under the excited utterance exception to the hearsay rule. Minn. R. Evid. 803(2). The excited utterance exception to the hearsay rule is firmly rooted for Confrontation Clause purposes. State v. Daniels, 380 N.W.2d 777, 785-86 (Minn. 1986).

Sauvageau arrived at the victim's apartment within about one minute after receiving the dispatch call. Sauvageau described the victim as frightened, shocked, and very upset and disturbed. Blood was running down her face, and her shirt was covered with blood. Sauvageau asked her what had happened, and she told him. The trial court's determination that the victim's statement to Sauvageau was an excited utterance was not an abuse of discretion. See State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (holding statement to police officer who began questioning witness shortly after assault was excited utterance); State v. Berry, 309 N.W.2d 777, 783 (Minn. 1981) (concluding that declarant's statements to police when they arrived at declarant's home to investigate a death were excited utterances); see also Minn. R. Evid. 803(2), advisory comm. cmt. (elements of excited utterance).

The trial court found that the victim's statements to Smith and emergency room personnel were admissible under the medical diagnosis exception to the hearsay rule. Minn. R. Evid. 803(4) (statements made for the purpose of medical treatment describing symptoms or case of symptoms admissible insofar as reasonably pertinent to treatment). The medical diagnosis exception to the hearsay rule is firmly rooted for Confrontation Clause purposes. State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993).

The trial court did not err in finding that the victim's statements about how the wound was inflicted were necessary for appropriate treatment. As the trial court noted, that information let the doctor know that it was necessary to examine the wound for pieces of ceramic. Even if the trial court erred in finding that information regarding the identity of the perpetrator, his relationship to the victim, and the circumstances surrounding the assault were necessary for the doctor to make a complete diagnosis of the victim's medical condition, the error was harmless because the identity of the person who threw the mug at the victim was undisputed. See State v. Bellotti, 383 N.W.2d 308, 312 (Minn. App. 1986) (although child's identification of person who assaulted her was irrelevant to medical diagnosis and treatment, error in admitting statement was harmless because assailant's identity was not in dispute), review denied (Minn. Apr. 24, 1986).

The trial court found that the victim's statement to Kohn was admissible under the residual exception to the hearsay rule. Minn. R. Evid. 804(b)(5). Dentz argues that the victim's statement to Kohn lacked particularized guarantees of trustworthiness. In determining whether a statement has particularized guarantees of trustworthiness, the court examines the totality of the circumstances that surround the making of the statement. State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (listing factors relevant to determination). A statement admissible under an exception to the hearsay rule is still subject to constitutional analysis and must bear sufficient "indicia of reliability" to avoid a conflict with the confrontation clause. State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981).

The supreme court has stated that "ex parte statements made during police questioning have traditionally been considered as inherently untrustworthy." Id. at 103. Hansen involved two statements to police, one given by an accomplice exculpating himself and inculpating the defendant after being promised leniency by police and another given by the accomplice's wife after being promised a reward for information. Id. at 98-99.

The victim's statement to Kohn has stronger guaranties of trustworthiness than the statements in Hansen. The record does not indicate that the victim had a motive to lie to police. Also, the victim's statement to Kohn was consistent with her earlier statements to police and medical personnel. See State v. Willette, 421 N.W.2d 342, 346 (Minn. App. 1988) (defendant's wife's statement to police that defendant admitted sexually abusing child was admissible under residual hearsay exception and its admission did not violate Confrontation Clause when wife voluntarily initiated report, had no apparent ulterior motive for doing so, and admitted that she did not know whether alleged abuse actually occurred), review denied (Minn. May 16, 1988).

Even if the trial court erred in admitting the victim's statement to Kohn, a claim that the erroneous admission of evidence deprived a defendant of his constitutional right to confront the witnesses against him is subject to harmless error analysis. State v. Wildenberg, 573 N.W.2d 692, 698 (Minn. 1998). When determining whether the erroneous admission of evidence was harmless error, an appellate court must

"examine the entire trial record and determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; * * * if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error."

State v. Byers, 570 N.W.2d 487, 498 (Minn. 1997) (quoting State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)).

Parts of the victim's statement to Kohn were consistent with Dentz's statement to Kohn and with his trial testimony. To the extent the victim's statement to Kohn was inconsistent with Dentz's testimony and statement, the victim's statement to Kohn was consistent with her earlier statements to police and medical personnel. There is no reasonable possibility that the verdict might have been more favorable to Dentz if the victim's statement to Kohn had not been admitted into evidence.

The trial court also found that Dentz procured the victim's absence at trial and, therefore, waived his confrontation right. Dentz argues that he did not waive his right to confrontation because there is no evidence that he made any threats against the victim. The supreme court, however, has recognized that a defendant can procure a witness's silence by means other than threats:

As a practical matter, if a defendant may procure a witness' silence by agreement for the mutual aid and protection of both the witness and the defendant, as is the case here, there will never be a need to make direct threats or engage in actual violence, and the defendant will never suffer any adverse consequences as a result of his or her participation in the agreement. Accordingly, we recognize that a witness' absence and silence may be procured by agreement as effectively as it can be by violence or threats of violence.

Byers, 570 N.W.2d at 495; see also Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982) (defendant waived right to confrontation by asserting marital privilege for witness).

The trial court's finding that Dentz procured the victim's unavailability by throwing away the subpoena was not clearly erroneous. In procuring the victim's unavailability, Dentz waived his right to object to the victim's out-of-court statements on confrontation grounds. See Byers, 570 N.W.2d at 494-95 (affirming trial court's finding that defendant procured witness's unavailability and, therefore, waived right to object to admission into evidence of witness's testimony from another trial).

When the sufficiency of the evidence is challenged, this court must review

the record to determine whether the evidence, when 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). This court must assume that "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).

Where a conviction is based on circumstantial evidence, the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). "The weight and credibility of the testimony of individual witnesses is for the jury to determine." Moore, 438 N.W.2d at 108. "The jury has no obligation to believe a defendant's story." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

Dentz argues that the evidence was insufficient to prove that he intended to cause fear of immediate bodily harm in the victim. Because intent is a subjective element, it must generally be proved by inferences drawn from a person's conduct or actions in light of all of the surrounding circumstances. State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996). Dentz threw the cup at the victim from a distance of about 12 feet away. It struck the victim in the forehead with such force that it shattered. This evidence was sufficient to support the inference that he intended to cause the victim fear of immediate bodily harm. The jury apparently did not believe Dentz's claim that he threw the cup out of frustration and did not intend to cause the victim fear of immediate bodily harm.

Dentz argues that the trial court erred in declining to instruct the jury that to base a conviction solely on circumstantial evidence, the jury must find that the circumstances proved exclude every reasonable hypothesis but guilt.

The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown.

State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). This court must review jury instructions "in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

In State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980), the trial court denied appellant's request to instruct the jury that when a conviction is based solely on circumstantial evidence, the circumstances proved must be inconsistent with any rational hypothesis other than guilt. The supreme court concluded that the trial court properly instructed the jury on circumstantial evidence by explaining the differences between direct and circumstantial evidence and the degree of proof necessary to find a defendant guilty. Id. at 312-13.

Dentz contends that Turnipseed does not control this case because, in Turnipseed, the defendant did not offer an alternative explanation for the state's evidence. In State v. Jones, 516 N.W.2d 545 (Minn. 1994), the defendant did offer alternative explanations for the state's evidence. See State v. Jones, 498 N.W.2d 44, 46 (Minn. App. 1993) (discussing defendant's explanations), rev'd on other grounds 516 N.W.2d 545 (Minn. 1994). The supreme court did not reach the issue of whether the trial court erred by declining to instruct the jury that it could not base its verdict solely on circumstantial evidence unless the evidence was such as to exclude any reasonable hypothesis except guilt. But the court did note:

We believe that Turnipseed would control here and that the trial court did not abuse its discretion in failing to give the requested jury instruction.

Jones, 516 N.W.2d at 548 n.4.

In light of Jones, we conclude that Turnipseed controls this case. The trial court instructed the jury on the presumption of innocence, the standard of proof beyond a reasonable doubt, and the difference between direct and circumstantial evidence. The instructions fairly and adequately explained the law. The trial court did not abuse its discretion in declining to give the instruction on circumstantial evidence requested by Dentz.

Affirmed.

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

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