State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1711

State of Minnesota,
Respondent,

vs.

Charles Steven Turman,
Appellant.

Filed November 20, 2017
Affirmed
Halbrooks, Judge

Becker County District Court
File No. 03-CR-16-243

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Tammy L. Merkins, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
On appeal from his convictions of thr eats of violence, fifth -degree assault, and
domestic assault, appellant argues that (1) his conviction of domestic assault must be

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vacated because the complainant’s out -of-court statement to police was erroneously
admitted into eviden ce because it did not bear a “sufficient indicia of reliability” or
“circumstantial guarantees of trustworthiness” and (2) his conviction of threats of violence
must be vacated for insufficient evidence because his statements were the product of
transitory anger and were not made with the aim, objective, or intention of causing extreme
fear. We affirm.
FACTS
Appellant Charles Turman, Sr. is married to A.T., who has three children, including
a son, D.S. Appellant is not D.S.’s biological father, but they have maintained a father-son
relationship since D.S.’s birth. On February 2, 2016, appellant and A.T. visited M.J., a
family friend, at her house. When appellant and A.T. arrived, M.J. and her three children,
her father, and her stepbrother were present. Appellant’s biological son, C.T. Jr., was not
at the house; but the mother of C.T. Jr.’s child, K.N., and their child, were there.
Appellant started drinking alcohol soon after he arrived. Approximately one hour
later, D.S. arrived , walked up to A.T. , and hugged her. Appellant came out of the
bathroom, pushed D.S. into the kitchen, punched him repeatedly, and grabbed him around
his neck. A.T. stayed in the living room, and the fight continued until M.J.’s father and
stepbrother intervened to stop it. As a result of the fight, D.S.’s lip was cut and appellant’s
knuckles were bleeding.
After this incident, M.J. told A.T. that they could not behave that way in her home.
A.T. drove to a gas station wi th M.J. and appellant and left appellant at the gas sta tion.
After returning to M.J.’s house, A.T. prepared to go home. But before she left M.J.’s house,

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appellant arrived. As appellant exited the vehicle, A.T. drove away with K.N.’s child.
Appellant, K.N., and M.J. went inside the house. Appellant was angry that A.T. had left
him at the gas station and made everyone in the house call A.T.’s phone. Appellant was
only able to speak with A.T. for a brief moment before she hung up on him. Appellant
then started punching the air, refused to let K.N. leave th e house, blocked the door, and
stated that he would have someone beat her up if she tried to leave. He also said he had
“killers” who could sit outside M.J.’s house and yelled that he was angry at those inside
the house because he believed that they knew A.T. was going to lea ve him there and that
they helped her go.
After approximately 20 or 30 minutes, M.J. said she needed to get food for her
children. Appellant allowed her to leave as long as she left her phone with him. M.J. then
left, unsuccessfully searched for A.T., and returned home. Upon returning, she spoke with
her neighbor, T.P., and asked if she could bring the kids over because she did not want
them in the house with appellant. M.J. told appellant that the children were going to T.P.’s
house to have leftover cake from a birthday party, brought the children to T.P.’s house, and
asked T.P to drive her to a gas station so that she could call the police. She did not want to
call the police from T.P.’s house because she was concerned that appellant would hear her
calling through the shared wall between her home and T.P.’s.
At approximately 7:30 p.m., T.P. drove M.J. to the gas station. M.J. called 911 and
informed the dispatcher that appellant was holding someone against their will in her home
and asked the police to meet her at the gas station and to follow her home without use of
the squad -car sirens. The police followed M.J. to her house and walked in and found

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appellant sitting on the couch. Officer Josie Johnson testified that appellant appeared
“cold” and that everyone else in the house seemed terrified. Officer Brent Fulton testified
that K.N. “couldn’t get out of there fast enough.”
Later that evening, at approximately 9:20 p.m., D.S. went to the sheriff’s office with
M.J. to inform Officer Johnson that appellant had assaulted him. D.S. stated that appellant
had punched him in the face, head -butted him, and grabbed him around his neck , which
made it difficult for him to breathe. M.J. was present while D.S. made the statement. The
state charged appellant with threats of violence, two counts of fifth-degree assault,
domestic assault, and domestic assault by strangulation.
At trial, D.S. recanted the statement he made to the police that appellant assaulted
him and testified that M.J. pressured him into making the statement because she wanted
appellant “locked up.” He explained that his lip was cut because he fought with his brother
that day. The jury also heard M.J.’s 911 call, D.S.’s recorded statement that he made to
the police, and testimony from M.J., D.S., M.J.’s stepbrother, and T.P. The officers who
arrived at M.J.’s house and the officer who took D.S.’s statement also testified. The jury
found appellant guilty of threats of violence against M.J. and K.N., fifth -degree assault
against K.N., and domestic assault against D.S. This appeal follows.
D E C I S I O N
Appellant argues that his conviction of domestic assault must be reversed because
the district court erred in admitting into evidence D.S.’s statement to Officer Johnson based
on Minn. R. Evid. 807 —the residual hearsay exception. Appellant reasons that the
statement is hearsay and does not satisfy the residual-hearsay-exception requirements

5
because it lacked “indicia of reliability” or “circumstantial guarantees of trustworthiness.”
Before trial, the prosecutor filed a notice of intent to introduce D.S.’s statement. During
trial, t he district court heard arguments from the prosecutor and appellant’s counsel
regarding the statement’s admissibility. Appellant’s counsel argued that the statement
violated his right to confront witnesses and was prejudicial and duplicative of other
evidence in the case.
The district court concluded that the statement was reliable and admitted it. It
reasoned that (1) the statement did not violate appellant’s right to confront witnesses, (2) it
was more probative than prejudicial, (3) D.S. made the statement against his personal
interest, (4) the statement was consistent with all of the other evidence in the record, and
(5) the general rules of evidence and interests of justice would best be served by admitting
the statement. “Evidentiary rulings rest within the sound discretion of the [dist rict] court
and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has
the burden of establishing that the [district] court abused its discretion and that appellant
was thereby prejudiced.” State v. Amos , 658 N.W.2d 201, 20 3 (Minn. 2003) (citation
omitted).
We agree that the disputed statement is hearsay. See Minn. R. Evid. 801(c)
(“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”). Such statements
are generally inadmissible absent an exception. Minn. R. Evid. 802. Under Minn. R. Evid.
807, a district court may admit hearsay that has “equivalent circumstantial guarantees of
trustworthiness,” if the district court determines that

6
(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.

The prosecutor offered D.S.’s statement as evidence of a material fact that appellant
assaulted D.S. We agree with the district court’s determination that the statement was more
probative of this fact than any other evidence that the state could procure. The statement
allowed the jury to consider D.S.’s personal knowledge and experience, which was not
otherwise available because D.S. recanted his statement while testifying. Other witnesses
addressed their perceptions of the assault but not the victim’s. Further, we agree with the
district court that the general rules of evidence and the interests of justice were served by
admitting the statement. The rules of evidence shall be construed “to the end that the truth
may be ascertained and proceedings justly determined .” Minn. R. Evid. 102. D.S.’s
statement allow ed the jury to better ascertain the truth by comparing his out-of-court
statement with his in-court testimony.
In addition to determining whether the statement satisfies the three requirements in
Minn. R. Evid. 807, the district court must also determine whether the statement has
“equivalent circumstantial guarantees of trustworthiness.” Minn. R. Evid. 807. In State v.
Ortlepp, the supreme court concluded that a hearsay statement had “circumstantial
guarantees of trustworthiness” because (1) the admission of the statement did not violate
the Confrontation Cla use of the Sixth Amendment given that the declarant testified and
was available for cross -examination, (2) it was undisputed that the declarant made the

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statement, (3) the statement was against the declarant’s penal interest, and (4) the statement
was consistent with all of the other evidence the state introduced. 363 N.W.2d 39, 44
(Minn. 1985). Here, the district court did not explicitly determine whether D.S.’s statement
satisfied all four Ortlepp factors, but it addressed the prosecutor’s argument, which focused
on the factors. Thus, the district court’s on-the-record reasoning allows us to review th e
district court’s analysis of the Ortlepp factors and the district court’s determination that the
statement was admissible.
The first Ortlepp factor, whether the statement violates the Sixth Amendment
Confrontation Clause, is not at issue here. As the district court noted, D.S. testified at trial
and was available for cross -examination. See Ortlepp, 363 N.W.2d at 44. The second
Ortlepp factor is also satisfied, as there is no dispute that D.S. made the recorded statement.
See id.
The third Ortlepp factor similarly weighs in favor of admissibility. This factor is
satisfied if the statement is “sufficiently reliable,” which can be demons trated by showing
the statement was made against the declarant’s interests. State v. Robinson, 699 N.W.2d
790, 798 (Minn. App. 2005). A statement made against the declarant’s interest in
maintaining a personal relationship can satisfy this requirement . State v. Plantin, 682
N.W.2d 653, 659 (Minn. App. 2004) (reasoning declarant’s statement satisfied the third
Ortlepp factor because it was made against her interest in maintain ing a relationship with
the defendant). Here, the district court found that D.S. loved appellant and regarded him
as his father. Therefore, we agree with the district court’s determination that D.S.’s

8
statement was made against his long-term personal interest in maintaining a father -son
relationship with appellant.
The fourth Ortlepp factor is also satisfied. The district court determined that D.S.’s
statement was consistent with all other e vidence introduced by the state . As the district
court discussed, the state introduced photographs that showed that D.S.’s lip was cut and
that appellant’s hand was bleeding. M.J. testified that appellant punched D.S. and put his
hands around his neck. M.J.’s stepbrother testified that he came down stairs immediately
after the incident and saw D.S. gasping for air with appellant standing nearby. The only
evidence that contradicts D.S.’s statement is his own testimony recanting the statement.
Although the Ortlepp factors provide guidance for determining the admissibility of
evidence under rule 807, they do not constitute a strict test. Rather, the district court must
examine the totality of the circumstances in determining whether the statements have
sufficient guarantees of trustworthiness. State v. Martinez , 725 N.W.2d 733, 737 -38
(Minn. 2007). The district court may consider: whether the declarant made the statement
voluntarily, under oath, and subject to cross -examination and penalty of perjury; his
motivation in making the statement; his personal knowledge; his relationship to the parties;
whether he recanted the statement; the existence of corro borating evidence; and his
character for honesty. State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013). The district
court may also consider whether the declarant volunteered information as opposed to
answering leading question s as well as the interval of time between the incident and the
statement. State v. Tate, 682 N.W.2d 169, 177 (Minn. App. 2004).

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D.S. asserts that he gave a statement to the police because M.J. told him that she
wanted appellant to go to prison. But the district court stated that “it does not appear to the
Court he was told what to say, but rather that his loyalty to his de facto fath er influenced
him to testify differently yesterday.” In finding that D.S. made the statement voluntarily,
the district court noted that “there was no evidence from [Officer] Johnson that he was
coached during the course of the statement .” The district court also relied on Officer
Johnson’s testimony that she believed that D.S. was making the statement voluntarily
because he provided detailed answers and corrected her if she misunderstood him.
The district court also discussed that D.S. had personal kn owledge about the
statement because he was the victim of appellant’s violence and that D.S. made the
statement in close proximity to the event . A statement made one day after an incident
occurred was considered sufficiently reliable. Id. The district court determined that D.S.
made the sta tement a few hours after the event occurred . Moreover, the district court
considered the fact that D.S. was not “coached” during his statement but provided an
account of the incident on his own. Id. (noting lack of leading questions shows additional
circumstantial guarantees of trustworthiness).
Some factors do not weigh in favor of admissibility. A district court may consider
whether the declarant made the statement while under oath and subject to cros s-
examination and penalty for perjury. State v. Davis, 820 N.W.2d 525, 537 (Minn. 2012).
A district court may also consider whether the declarant ever recanted the statement. Id.
Here, D.S. was not under oath or subject to cross-examination while making the statement.

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And, as noted by the district court, D.S. recanted his statement on the witness stand and
stated that he only made it because M.J. pressured him.
Nevertheless, we agree with the district court’s d etermination that, considering the
totality of circumstances, D.S.’s statement was sufficiently reliable. The statement
satisfied all four Ortlepp factors, and as the district court determined, he made the statement
in close proximity to the event, he had personal knowledge of the incident, and he provided
his own account of the facts as opposed to answering leading questions. Therefore, the
district court did not abuse its discretion by admitting D.S.’s statement a s substantive
evidence that appellant assaulted D.S.
II.
Appellant argues that there is insufficient evidence to support his conviction of
threats of violence because his statements were a product of transitory anger and were not
made with the aim, object ive, or intention of causing extreme fear. When considering a
challenge to the sufficiency of the evidence, our review “is limited to a painstaking analysis
of the record to determine whether the evidence, when viewed in the 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 “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). We will not disturb the verdict “if the jury,
acting with due regard for the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a]

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defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004) (alteration in original) (quotation omitted).
Minnesota law provides that “[w]hoever threatens, directly or indirectly, to commit
any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the
risk of causing such terror” is guilty of making a threat of violence. Minn. Stat. § 609.713,
subd. 1 (2016) . The essential elements of a threat of violence are that “(1) the accused
made threats (2) to commit a crime of violence (3) with purpose to terrorize another or in
reckless disregard of the risk of terrorizing another. ” State v. Schweppe, 306 Minn. 395,
399, 237 N.W.2d 609, 613 (1975). Intent is inherently subjective but may be inferred from
the surrounding circumstances. Id. at 401, 237 N.W.2d at 614.
Minnesota’s threats-of-violence statute is not intended “to authorize grave sanctions
against the kind of verbal threat which expresses transitory anger [but] which lacks the
intent to terrorize.” State v. Jones , 451 N.W.2d 55, 63 (Minn. App. 1990) (quotation
omitted), review denied (Minn. Feb. 21, 1990). Appellant contends that he had no intent
to terrorize but merely expressed transitory anger. He argues that he was “drunk and angry
at his wife for leaving him” and his “behavior and words were erratic.” But the evidence
demonstrates that appellant engaged in angry, violent behavior not just when A.T. left him
but over the course of several hours. M. J. testified that appellant “was balling up his fist
like he wanted to fight . . . [and] was punching the air.” When K.N. tried to leave the house,
appellant told her he was going to have someone beat her up and then stood in front of the
door to prevent her from leaving. Appellant also said that he had “killers” and could
arrange for people to sit outside of the house. M.J. ’s stepbrother testified that while

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appellant was yelling at K.N., he was “jumping in her face, jumping out of her face, [and]
jumping back in her face, and walking around the house, steady pacing.”
A victim’s reaction may provide circumstantial evidence relevant to the element of
intent. Schweppe, 306 Minn. a t 401, 237 N.W.2d at 614. M.J. testified that appellant
turned “into a demon after [A.T.] didn’t pick up [the] phone,” T.P. testified that M.J. was
“in hysterics” when she asked her neighbor for help, and Officer Johnson testified that K.N.
and M.J.’s stepbrother looked “terrified” when the police arrived. We conclude that the
record contains sufficient evidence to support the jury’s determination that appellant had
the necessary intent to be convicted of threats of violence against M.J. and K.N.
Affirmed.