Opinion
No. A04-917.
Filed April 26, 2005.
Appeal from the District Court, Dakota County, File No. 19-T2-03-073558.
Mike Hatch, Attorney General, and Elliott Knetsch, Lakeville City Attorney, Brendan J. Flaherty, Assistant City Attorney, (for respondent).
Mark D. Nyvold, (for appellant).
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant challenges (1) the admission of hearsay statements during his trial on careless driving and indecent exposure charges, and (2) the jury's verdict of guilty on the indecent exposure charge. Because admission of the hearsay statements was not plain error and because the jury's verdict was supported by sufficient evidence, we affirm.
FACTS
At about 10:42 a.m. on a sunny morning in August 2003, a 911 dispatcher informed Lakeville Police Officer Kelli Coughlin that a white semi tractor-trailer heading south on I-35W was swerving dangerously. The dispatcher had received a call from truck driver Terence Olsen. Olsen testified at trial that as he was preparing to merge onto southbound I-35W from Highway 13, he observed the semi driving half in the ditch and half on the left shoulder as it tried to pass traffic while swerving and kicking up dust and debris from the ditch. A dump-truck driver who worked with Olsen was driving in front of the semi. He recognized Olsen merging onto the freeway and called Olsen's cell phone to talk about the way the semi was being driven.
As Officer Coughlin approached the semi, she saw it swerve across the white line separating the outer lane of traffic from the shoulder. Coughlin pulled the semi over to the shoulder. She approached the cab and knocked on the driver's side door, but the driver, appellant Randall Maring, had already exited the cab from the passenger door. Maring then walked around the truck and surprised Coughlin from behind. Coughlin told him to meet her at the rear of the truck.
Maring began to complain loudly about being stopped. While Coughlin was trying to explain why he had been stopped, Maring exclaimed that he needed to urinate. Coughlin told him that if he would relax and wait a second, she would return him to the road shortly. But, instead, Maring unbuttoned, unzipped and reached into his pants in front of Coughlin. She testified at trial that she "immediately looked away out of the uncomfortableness of the situation." Maring then turned his back to Coughlin and urinated. Coughlin testified that Maring was about five to ten feet away from her patrol car, which was parked on the interstate's shoulder. Maring then zipped and buttoned his pants and turned to face Coughlin. Coughlin issued Maring a citation for careless driving and indecent exposure, both misdemeanors, and released him at the scene.
Maring appeared pro se at his jury trial on both charges in January 2004. During Olsen's testimony, he related some of his conversation with the dump-truck driver concerning Maring's driving behavior during the cell-phone call. Maring did not object to admission of the dump-truck driver's statements. The jury convicted Maring on both counts. He was sentenced to 180 days in jail, which was reduced to time served, and given a $65 fine. Maring challenges the admissibility of the hearsay evidence and his conviction for indecent exposure.
DECISION
1. Hearsay Evidence
Maring contends that evidence of the dump-truck driver's statements to Olsen introduced through Olsen's testimony was inadmissible hearsay. Because Maring failed to object to this evidence at trial, this court reviews the admission of the evidence under the plain error standard. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).
Maring objects to the following testimony by Olsen regarding Maring's driving on the day of the incident:
Q. What did [the dump-truck driver] say to you?
A. He was just, he was pretty much in shock. He's like, this guy, do you see this guy? He's half on the shoulder, half in the ditch trying to run me off the road. He was pretty concerned, trying to figure out how to get away from the guy, you know, with traffic at that interchange it's, you know, it's a busy section of road.
. . . .
Q. Did you . . . continue to talk to [the dump-truck driver] on the radio?
A. No, we — actually we kind of ended our conversation because I was hauling heavy and the commotion that was from behind their vehicles at that point, it was — it wasn't a good time to be talking on the phone being I was heavy and wide. So we pretty much — he was more concerned about trying to get away, he pretty much didn't know what to do, how to get away. He figured the guy was going to chase him down. My advice to him [was to] get as far away from him as he could.
Maring argues that this evidence is barred by Crawford v. Washington, 124 S. Ct. 1354 (2004). In Crawford, the Supreme Court stated that a defendant's Sixth Amendment rights bar out-of-court "testimonial" statements from admission unless (1) the hearsay declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant. Crawford, 124 S. Ct. at 1374. The Court left "for another day any effort to spell out a comprehensive definition of `testimonial.'" Id. But the Court, after an exhaustive historical analysis, concluded that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. . . . The Sixth Amendment must be interpreted with this focus in mind." 124 S. Ct. at 1363. The Court, drawing on various sources, went on to note that various formulations of this core class of testimonial statements exist: (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 made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. 124 S. Ct. at 1364. The Court also provided the following examples of "testimonial" statements: prior testimony at a preliminary hearing, previous trial, or grand jury proceedings, and police interrogations. 124 S. Ct. at 1374.
Maring contends that "[u]nquestionably, the dump-truck driver's statements fall within this definition because he had to expect that what he said to . . . Olsen would be relevant to any criminal proceedings involving the driver of the white semi truck." We disagree. The statements made by the dump-truck driver were not the result of an ex parte examination to be used against an accused. Thus, with the definitions and examples from Crawford before us, we conclude that the cell-phone call from the dump-truck driver to Olson is not the type of "testimonial" statement that the Sixth Amendment was written to exclude.
Moreover, on this issue State v. Wright, 686 N.W.2d 295 (Minn.App. 2004), review granted (Minn. Nov. 23, 2004), is instructive. In Wright, this court held that statements made during a 911 call, moments after a criminal offense and under the stress of that event, do not fit within the definition of "testimonial." Id. at 302 ("A 911 call is usually made because the caller wants protection from an immediate danger, not because the 911 caller expects the report to be used later at trial with the caller bearing witness."). In our view, a call from one truck driver to another is even farther removed from the definition of "testimonial" than a call seeking police protection to a 911 operator. Moreover, in this case, there is nothing in the record to remotely suggest that the dump-truck driver had any reason to anticipate that his statements to Olsen would later be used in a criminal prosecution of the semi driver. Because the hearsay statements to which Maring objects are not testimonial, Crawford does not bar their admission. Thus, admission of the hearsay statements was not error, much less plain error.
2. Indecent Exposure
Maring next argues that the jury had insufficient evidence to convict him of indecent exposure. On review of a claim of insufficient evidence, we determine whether the evidence in the record, when viewed in the light most favorable to the conviction, is sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that the jury believed the state's witnesses and disbelieved evidence contradicting those witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). We will not reverse the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). Maring was convicted of indecent exposure under Minn. Stat. § 617.23, subd. 1 (2002), which provides:
A person who commits any of the following acts in any public place, or in any place where others are present, is guilty of a misdemeanor:
(1) willfully and lewdly exposes the person's body, or the private parts thereof;
(2) procures another to expose private parts; or
(3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.
Maring argues that the evidence to convict him was insufficient because his act of urination did not have the sexual component that is required for lewd or lascivious behavior. The district court charged the jury in terms of subsection (3) of the indecent exposure statute. Subsection (3) defines two types of conduct — connected by the word "or" — that would constitute indecent exposure: "open or gross lewdness or lascivious behavior," or, "any public indecency other than behavior specified in this subdivision." Thus, the jury could have found Maring guilty of indecent exposure if he committed an act of public indecency. "Indecency" is defined as "something indecent," and "indecent" has been defined as "[o]ffensive to public morals; immodest." The American Heritage College Dictionary 690(3d ed. 2000). Therefore, there would be sufficient evidence for the jury to convict Maring of indecent exposure without any evidence of lewd or lascivious behavior, if his actions were public and offensive to public morals.
Coughlin testified that when Maring insisted that he had to urinate, she asked him to wait a short while until he could leave. Maring refused and instead unbuttoned, unzipped, and reached inside his pants while facing Coughlin and then turned his back to urinate. Coughlin testified that her patrol car was on the shoulder of the interstate and estimated that Maring was standing five to ten feet away from the patrol car when he urinated. The incident occurred around 11:00 a.m., and Maring's actions would have been fully visible to individuals in oncoming cars. The fact that the incident occurred on an interstate highway made the incident more public than if it had occurred on, for example, a two-lane county road. Thus, the jury could have reasonably concluded that Maring's act of unfastening and reaching into his pants in front of an individual who had asked him not to, and urinating while visible on an public highway, was an act of public indecency.