State Of Minn. v. Ahmed

• Decision Date: 11 May 2010
• Docket Number: No. A09-724.,A09-724.
• Citation: 782 N.W.2d 253
• Parties: STATE of Minnesota, Respondent,v.Hussein Osman AHMED, Appellant.
• Court: Minnesota Court of Appeals

782 N.W.2d 253

STATE of Minnesota, Respondent,v.Hussein Osman AHMED, Appellant.

No. A09-724.

Court of Appeals of Minnesota.

May 11, 2010.

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Syllabus by the Court

1. The circumstances to be considered when evaluating the “equivalent guarantees of trustworthiness,” required for admission of out-of-court statements under Minn. R. Evid. 807, do not include the credibility of the testifying witness.

2. Minn.Stat. § 609.341, subd. 11(b)(i) (2006), which defines “sexual contact” as touching intimate parts “with sexual or aggressive intent,” permits a conviction based on touching committed solely with aggressive intent.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, MN, for respondent.

Michael J. Colich, Tania K.M. Lex, Colich & Associates, Minneapolis, MN, for appellant.

Considered and decided by BJORKMAN, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.

OPINION

BJORKMAN, Judge.

On appeal from his convictions of third-degree assault and second-degree criminal sexual conduct, appellant contends that (1) the district court abused its discretion in admitting the out-of-court statement of the child victim without considering the credibility of the testifying witness; (2) the state did not prove that prohibited sexual contact occurred; and (3) the jury was improperly instructed on the “particular cruelty” aggravating factor. Because the district court did not abuse its discretion in admitting the child's statement and there is sufficient evidentiary support for the jury's verdict, we affirm in part. But in light of the supreme court's recent decision in State v. Rourke, 773 N.W.2d 913 (Minn.2009), regarding the determination of the particular cruelty aggravating factor, we reverse in part and remand for resentencing.

FACTS

Appellant Hussein Osman Ahmed was charged with third-degree assault, in violation of Minn.Stat. § 609.233, subd. 3 (2006), and second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343, subd. 1(h)(ii) (2006), in connection with the abuse of three-year-old H.A his wife M.A.'s son from a previous marriage. H.A. sustained pattern burns on multiple parts of his body, including his face, back, shoulder, abdomen, and penis. The patterns were consistent with the handle-end of silverware found in the family apartment.

Both M.A. and Ahmed were initially charged with felony child abuse. M.A. agreed to testify against Ahmed in exchange for leniency. She testified that on Saturday night, December 8, 2007, Ahmed returned home from a week-long trip. M.A. had bathed H.A. and put him to bed before Ahmed returned home, and H.A. appeared fine that evening. In the morning, Ahmed got up with H.A. and allowed M.A. to sleep in. After M.A. awoke, she noticed marks on H.A.'s face. During a diaper change, she discovered swelling and blistering on H.A.'s penis.

M.A. took her son to an urgent-care clinic that afternoon. The doctor diagnosed the blistering marks as a skin rash but recommended follow-up with the primary-care doctor. H.A.'s pediatrician could not diagnose the marks and referred H.A. to Children's Hospital. M.A. took H.A. to Children's Hospital on December 12. Once there, H.A. was admitted. The next day, H.A. was removed from his mother's care because of suspected child abuse and placed into foster care. M.A. denied burning H.A. or otherwise causing the marks on him.

On December 14, a police officer brought H.A. to CornerHouse for an interview with a child social worker. H.A. did not respond to any of the interviewer's questions either in English or through a Somali interpreter. Because H.A. had spent most of his life with his maternal grandmother, F.B., CornerHouse arranged for another interview on December 17, this time with F.B. present.

F.B. testified that H.A. ran to her when he saw her in the lobby, before the interview. When she hugged him, H.A. told her in Somali that her hugs hurt him. When she asked who did this to him, H.A. responded that “Abdirashiid” was the one who had hurt him. Abdirashiid is the familiar name by which M.A.'s family knew Ahmed. During the CornerHouse interview, H.A. again said nothing.

The district court declared H.A. incompetent to testify at trial. The court permitted F.B. to testify about the conversation she had with H.A. in the lobby at CornerHouse under the residual exception to the hearsay rule.

In addition to the charged offenses, the jury was asked to determine whether Ahmed committed either of the crimes with particular cruelty. The jury instruction stated, “If you find [Ahmed] guilty of either Count I or Count II, or both, you will have an additional issue to determine: ... Was the crime committed with particular cruelty.” The instructions defined particular cruelty as “cruelty that is greater in degree than one would normally expect in the commission of the charged crimes,” and they suggested factors to consider, including the amount of pain, the number of wounds, the type of injury, whether the injury was permanent, and whether the injury caused the victim to fear disfigurement.

The jury found Ahmed guilty of both offenses and found that he committed them with particular cruelty. The district court sentenced Ahmed to 180 months' imprisonment, a double upward departure from the presumed guidelines sentence for second-degree criminal sexual conduct. This appeal follows.

ISSUES

I. Did the district court err in admitting H.A.'s out-of-court statement?

II. Is proof of aggressive intent sufficient to satisfy the statutory definition of sexual contact, which requires touching of intimate parts with “sexual or aggressive intent”?

III. Did the district court err in instructing the jury on “particular cruelty”?

ANALYSIS

I. The district court did not abuse its discretion in admitting F.B.'s testimony concerning H.A.'s out-of-court statement.

Ahmed argues that H.A.'s out-of-court statement to F.B. is inadmissible hearsay because it is not reliable. Ahmed contends that the court should have considered F.B.'s credibility, which it expressly did not, and that H.A.'s statement was not spontaneous or repeated, and lacked context.

The district court admitted F.B.'s testimony under the residual exception to the hearsay rule contained in Minn. R. Evid. 807.¹ The residual exception allows admission of statements that do not fall under the usual hearsay exceptions found in Minn. R. Evid. 803 and 804 but have “equivalent circumstantial guarantees of trustworthiness” upon a determination by the court that

(a) the statement is offered as evidence of a material fact;

(b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 807. The rule includes a notice requirement that is not in dispute here. See id.

Evidentiary rulings lie within the sound discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). But whether the admission of hearsay evidence violates a defendant's rights under the Confrontation Clause is a question of law that we review de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006). Because H.A.'s statement is hearsay, we turn first to the question of whether admission of his statement violates Ahmed's Sixth Amendment rights. See Minn. R. Evid. 807 cmt. (“In criminal cases, offering hearsay statements against the accused from declarants who do not testify and are not subject to cross-examination, may implicate the constitutional right to confrontation.”).

A. The Confrontation Clause is not implicated by the admission of H.A.'s statement.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend IV; accord Minn. Const. art. 1, § 6. The Supreme Court determined in Crawford that the “Confrontation Clause test bars at trial all ‘testimonial’ out-of-court statements when the accused is not afforded ‘a prior opportunity to cross-examine’ the declarant.” State v. Bobadilla, 709 N.W.2d 243, 249 (Minn.2006) (quoting Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004)).

If a statement is not testimonial, then the Confrontation Clause is not implicated because the declarant is not a witness under the terms of the Sixth Amendment. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006); State v. Tscheu, 758 N.W.2d 849, 864 (Minn.2008). Thus, the Confrontation Clause is only implicated here if H.A.'s statement to F.B. was testimonial. See Tscheu, 758 N.W.2d at 864.

The district court determined that H.A.'s statement was not testimonial. We agree. Statements made to nongovernment questioners, who are “not acting in concert with or as an agent of the government” are considered nontestimonial. State v. Scacchetti, 711 N.W.2d 508, 514-15 (Minn.2006). The interview at CornerHouse was arranged by the lead police investigator as a standard part of the investigation of child abuse. A police officer drove F.B. to CornerHouse. Therefore any statement made in the interview is arguably testimonial. See Bobadilla v. Carlson, 575 F.3d 785, 791 (8th Cir.2009) (concluding that statements by child victim in interview by social worker as part of police investigation were testimonial).

But H.A. made his statement to F.B. when he first saw her in the lobby, outside of the interview room and before the interview began. Neither the police officer nor the social worker was involved in F.B.'s conversation with H.A. There was no evidence that F.B. was acting in any manner but on her own behalf when she asked H.A. about his injuries and who caused them. H.A. was expressing pain to a close...