Opinion
A22-0960
04-17-2023
State of Minnesota, Respondent, v. John Ishmael Bradley, III, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Kimberly J. Maki, St. Louis County Attorney, Aaron P. Welch, Assistant County Attorney, Virginia, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Slieter, Judge St. Louis County District Court File No. 69VI-CR-22-57
Keith Ellison, Attorney General, St. Paul, Minnesota; and Kimberly J. Maki, St. Louis County Attorney, Aaron P. Welch, Assistant County Attorney, Virginia, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Cochran, Judge; and Slieter, Judge.
SLIETER, Judge
Appellant challenges his convictions of second-degree assault and felony domestic assault, arguing that he did not use a broomstick in a manner likely to cause great bodily harm and evidence was erroneously admitted. Additionally, appellant argues that felony domestic assault is an included crime of second-degree assault and, therefore, entry of judgment of conviction for that offense should be reversed. Because the evidence indicates that appellant used the broomstick as a dangerous weapon, evidence was not erroneously admitted, and felony domestic assault is not an included offense of second-degree assault, we affirm.
FACTS
Respondent State of Minnesota charged appellant John Ishmael Bradley III with second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2020), and felony domestic assault, in violation of Minn. Stat. § 609.2242, subd. 4 (2020). The following facts derive from Bradley's trial.
On January 13, 2022, a Virginia police officer responded to a call reporting that Bradley had hit the victim on the head with a wooden broomstick. The officer found the victim bleeding from the head in the hallway outside her apartment. The officer escorted the victim to a waiting ambulance, which took her to the hospital.
At the hospital, the victim received medical care and was interviewed by the officer. The interview was recorded on the officer's body-worn camera, and, in the interview, the victim described the assault and indicated that Bradley had hit her on the head with a broomstick. The next day, the officer located and arrested Bradley.
During trial, the responding officer testified, and the district court admitted without objection body-worn-camera footage of the officer's hospital interview with the victim. Through another officer, the district court admitted, over objection, text messages and a phone call between Bradley and the victim while Bradley was in custody. The victim also testified that her memory of the day of the assault was "kind of fuzzy" and, although she remembered being hit in the head, she did not remember who hit her.
The jury found Bradley guilty on both counts. The district court convicted Bradley on both counts but sentenced him on the second-degree assault count. Bradley appeals.
DECISION
I. The evidence is sufficient to support the jury's finding that Bradley used the broomstick as a dangerous weapon.
Second-degree assault occurs when a person "assaults another with a dangerous weapon." Minn. Stat. § 609.222, subd. 1. Minnesota law defines "dangerous weapon," as relevant here, as a "device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm." Minn. Stat. § 609.02, subd. 6 (2022). "Likely" means the manner of using the object is "known to be capable of producing" the harm. State v. Abdus-Salam, __ N.W.2d__, __ No. A22-1551, 2023 WL 2747202, at *4 (Minn.App. Apr. 3, 2023) (quotation omitted). "Some things that are not ordinarily thought of as dangerous weapons become dangerous weapons if so used." State v. Weyaus, 836 N.W.2d 579, 585 (Minn.App. 2013) (quoting State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983)), rev. denied (Minn. Nov. 12, 2013). And the supreme court has noted that its cases "dealing with the definition of 'dangerous weapon' . . . illustrate the expansive interpretation [it is] inclined to give the statute." LaMere v. State, 278 N.W.2d 552, 555 (Minn. 1979) (concluding that an inoperable firearm fell within the definition of "dangerous weapon"); see also State v. Upton, 306 N.W.2d 117, 117-18 (Minn. 1981) (pool cue); State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980) (cowboy boots); State v. Born, 159 N.W.2d 283, 283-85 (Minn. 1968) (fists and feet). Whether an object was used as a dangerous weapon depends on "not only the nature of the object itself, but also the manner in which it was used." Weyaus, 836 N.W.2d at 585 (quoting State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997)).
Bradley argues that the evidence presented was insufficient to support the jury's finding that he used the broomstick in a manner calculated or likely to produce great bodily harm.
"When evaluating the sufficiency of the evidence, appellate courts carefully examine the record to determine whether the facts and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted." State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). The reviewing court views the evidence in the light most favorable to the verdict, assumes the fact-finder disbelieved any evidence which conflicted with the verdict, and will not overturn the verdict if a reasonable jury could have found the defendant guilty. Id.
The jury heard the victim's video-recorded statements made at the hospital that Bradley was "pointing [the broomstick] at" her and being "aggressive," and saw a text message in which the victim stated that she "looked in [Bradley's] eyes when [he] swung." The blow opened a six-centimeter wound on the victim's head, which required seven stiches to close. From these facts, a reasonable jury could conclude that Bradley deliberately swung the wooden broomstick at the victim's head, a particularly vulnerable part of the body, with significant force. See State v. Coauette, 601 N.W.2d 443, 448 (Minn.App. 1999) (noting that, although reckless discharge of a paintball gun was insufficient to prove it was used as a dangerous weapon, aiming at someone's face would provide "some basis to treat the paintball gun as a dangerous weapon 'in the manner it is used'"), rev. denied (Minn. Dec. 14, 1999). Thus, viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude that Bradley used the broomstick as a dangerous weapon.
II. Evidence was not erroneously admitted.
Bradley argues that the district court abused its discretion by admitting the objected-to text messages and phone call, and plainly erred by admitting the unobjected-to recording of the victim's hospital interview.
"Evidentiary rulings rest within the sound discretion of the district court, and we will not reverse an evidentiary ruling absent a clear abuse of discretion." State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014); State v. Vue, 606 N.W.2d 719, 721 (Minn.App. 2000), rev. denied (Minn. May 16, 2000). "A district court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." State v. Vangrevenhof, 941 N.W.2d 730, 736 (Minn. 2020) (quotation omitted). "[A]n appellant who alleges an error in the admission of evidence that does not implicate a constitutional right must prove that there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict." State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016).
"Failure to object to the admission of evidence generally constitutes a waiver of the right to appeal on that basis." State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008). But appellate courts may consider an unobjected-to error if it was plain and affected the defendant's substantial rights. Id. An error affects the defendant's substantial rights if it "had the effect of depriving the defendant of a fair trial." Id. (quotation omitted).
Bradley argues that the hospital interview, text messages, and phone call present a Dexter problem because they were admissible only as impeachment evidence. See State v. Dexter, 269 N.W.2d 721, 722 (Minn. 1978) (noting risk that jury will misuse, as substantive evidence, otherwise inadmissible prior inconsistent statement introduced to impeach witness who signified intent to testify in favor of defendant). We disagree.
As a threshold matter, the parties do not argue whether Dexter appropriately applies to the situation here, when the victim does not appear to have retracted her prior statement nor signified an intent to testify in Bradley's favor. Instead, she claimed during trial an inability to recall much of the incident. However, the applicability of Dexter does not matter because evidence does not present a Dexter problem if it is admissible as substantive evidence. State v. Ortlepp, 363 N.W.2d 39, 43-44 (Minn. 1985). Therefore, we analyze whether the hospital interview, text messages, and phone call were admissible pursuant to rule 807, the residual exception to the hearsay rule. See id. (analyzing admissibility of purported Dexter evidence pursuant to the residual exception); see also State v. Morales, 788 N.W.2d 737, 758-60 (Minn. 2010).
Rule 807 allows the admission of otherwise inadmissible hearsay statements "not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness." Minn. R. Evid. 807; Vangrevenhof, 941 N.W.2d at 736. Analyzing hearsay statements for admissibility pursuant to rule 807 is a two-step process. State v. Hallmark, 927 N.W.2d 281, 292 (Minn. 2019). First, the totality of the circumstances surrounding the statement must show "circumstantial guarantees of trustworthiness." Id. (quotation omitted). Second, the statement must meet the three requirements set forth in rule 807. Id. at 293.
Whether a statement has circumstantial guarantees of trustworthiness depends on the totality of the circumstances. Vangrevenhof, 941 N.W.2d at 736. Historically, district courts have relied primarily on the four factors set forth in Ortlepp. Id. The four Ortlepp factors are: (1) whether there is a Confrontation Clause issue, (2) whether "the statement is recorded, removing any real dispute about what the declarant said," (3) whether "the statement is against the declarant's penal interest," and (4) whether the statement is consistent with other evidence which points strongly toward guilt. Id. at 736 n.1 (outlining Ortlepp factors).
Other relevant factors include whether the statement was made voluntarily; whether it was made under oath and subject to cross-examination; the declarant's motivation for making the statement, personal knowledge, and relationship to the parties in the litigation; whether the declarant recanted; whether there is corroborating evidence; and the declarant's reputation for honesty. Id. at 736. The trustworthiness of a statement may be undermined if the declarant "has a strong motivation to deceive or implicate others," lacked first-hand knowledge of the subject of the statement, made the statement in exchange for a reward, or "there was an extended gap in time between the event and the statement being made." Id. at 736-37.
Considering the first three Ortlepp factors and two of the other relevant factors, we conclude that the totality of the circumstances demonstrate that the victim's statements were trustworthy. As to the first Ortlepp factor, the victim testified at trial and, although she testified that she could not remember key facts, she was available for cross-examination, thus avoiding a Confrontation Clause concern. Concerns addressed by the second Ortlepp factor are alleviated because all three statements were recorded. Our court has held that statements not directly against the declarant's penal interest may still satisfy the third Ortlepp factor "if the declarant is hostile to the state and supportive of the defendant." State v. Plantin, 682 N.W.2d 653, 659 (Minn.App. 2004), rev. denied (Minn. Sept. 29, 2004). The third Ortlepp factor is satisfied because the district court allowed the prosecutor to address the victim as hostile, and the victim's failure to call the police herself when she was assaulted and her continued unwillingness to cooperate with the police indicate that she was supportive of Bradley. Thus, the first three Ortlepp factors indicate trustworthiness.
Additionally, the victim had personal knowledge of the assault and made the statements in the hospital interview, text messages, and phone call voluntarily. The victim did not recant the statements, though she later claimed not to remember the assault or statements she made about it. Thus, the statements show "circumstantial guarantees of trustworthiness." Hallmark, 927 N.W.2d at 292 (quotation omitted).
We now consider the second step: the rule 807 analysis. Id. at 293. Rule 807 requires that the statement (1) "is offered as evidence of a material fact," (2) "is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts," and (3) will serve the interests of justice and general purpose of the rules of evidence if admitted. Minn. R. Evid. 807; Hallmark, 927 N.W.2d at 293-94. These requirements are also satisfied.
All three statements were offered as proof that Bradley struck the victim, which is a material fact. The victim's statements are the most probative evidence of her assailant's identity that could be acquired through reasonable means because she was the only person who witnessed the assault but, at trial, she could not clearly remember the incident. Finally, admitting the voluntary statements serves the interests of justice and purpose of the evidentiary rules by ascertaining the truth and promoting a just determination. See Hallmark, 927 N.W.2d at 297.
In sum, the district court was within its discretion by admitting the text messages and phone call, and it was not plain error to admit the hospital statement.
Bradley also argues that he was prejudiced by statements the officer made regarding her training about "power and control dynamics" in relationships involving domestic abuse. However, the officer made no reference to the facts of this case. And even if the statements were inappropriate, they do not warrant reversal because there is not a reasonable probability, in light of the state's admissible substantive evidence, that the officer's statements significantly affected the jury. See Peltier, 874 N.W.2d at 802.
III. Felony domestic assault is not an included offense of second-degree assault.
Minnesota law provides that "the actor may be convicted of either the crime charged or an included offense, but not both." Minn. Stat. § 609.04, subd. 1 (2022). An "included offense" can be a "a lesser degree of the same crime," id. at (1), which encompasses a crime of "a lesser degree of a multi-tier statutory scheme dealing with a particular subject." State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995). Whether a crime constitutes an included offense is a question of law, which appellate courts review de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Bradley argues that felony domestic assault is an included offense of second-degree assault because it is part of the same multi-tiered statutory scheme. Our court has previously held that misdemeanor domestic assault is not an included offense of second-degree assault. State v. Nyagwoka, 894 N.W.2d 174, 176-77 (Minn.App. 2017). As we stated in Nyagwoka, "[t]he legislature has created a multi-tiered statutory scheme that assigns assault to one of five degrees. But the legislature did not include domestic assault in this multi-tiered scheme. Rather, domestic assault is addressed in a separate statutory scheme that does not assign any offense degrees." Id. (citations omitted); see also Minn. Stat. §§ 609.221-.2231, .224, .2242 (2022). It matters not that Bradley's conviction for domestic assault is a felony rather than a misdemeanor. Therefore, for the same reasons we explained in Nyagwoka, his domestic-assault conviction is not an included offense of second-degree assault.
In a pro se supplemental brief, Bradley argues that he was denied a fair trial because none of the prospective jurors were Black, as Bradley is, and the state failed to disclose exculpatory evidence involving body-worn-camera footage. Neither argument is persuasive. Bradley presented no evidence of the demographic composition of St. Louis County residents who are eligible for jury duty, which is necessary to sustain a claim that the jury does not reflect a fair cross-section of the community. State v. Griffin, 846 N.W.2d 93, 99 (Minn.App. 2014) (quotation omitted), rev. denied (Minn. Aug. 5, 2014). Bradley and his attorney viewed the undisclosed video but decided not to present it to the jury. Bradley has not shown that the undisclosed evidence was exculpatory, the prosecutor suppressed it, or its absence prejudiced him, all three of which are required to show a violation of his right to exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017).
Affirmed.