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This opinion will be unpublished and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
A16-1750

State of Minnesota,
Respondent,

vs.

Chim LoVan,
Appellant.

Filed August 28, 2017
Affirmed
Larkin, Judge

Nobles County District Court
File No. 53-CR-15-553

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant argues that his constitutional right to confrontation was violated when the
district court allowed a police officer to testify that a homicide victim identified appellant
as the person who had stabbed him. We affirm.
FACTS
Respondent State of Minnesota charged appellant Chim LoVan with second-degree
murder, third-degree murder, first-degree manslaughter, and second-degree assault for the
stabbing death of B.T. The complaint alleged that Officer Colby Palmersheim of the
Worthington Police Department responded t o a report that a man was “bleeding from the
mouth” at a residence. Officer Palmersheim found B.T. in the basement of the residence,
lying on a mattress in a fetal position, holding a bloody T-shirt. Officer Palmersheim asked
B.T. what happened, and B.T. responded that he was stabbed by “Monkey,” who police
later identified as LoVan. B.T. was transported to a hospital and died during surgery.
Prior to trial, the state moved the district court to admit statements tha t B.T. made
while Officer Palmersheim was attending to B.T.’s injuries. The state also sought
admission of B.T.’s statements to other responders at the scene. LoVan objected, arguing
that the statements were inadmissible hearsay and that the ir admission would violate his
rights under the Confrontation Clause of the United States Constitution.
The district court held an evidentiary hearing on the state’s motion. Officer
Palmersheim testified that he was trained as an Emergency Medical Technician (EMT) and
in Cardiopulmonary Resuscitation (CPR). At approximately 5:50 p.m. on June 19, 2015,
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he responded to a call that an individual at the residence “was bleeding from the mouth.”
He was the “first officer on the scene” and the sole emergency responder. He found B.T.
in the basement lying “in the fetal positon on a mattress with several T-shirts that appeared
like they were blood -soaked.” B.T. appeared to be in extreme pain, very pale, and very
lethargic, which, according to Officer Palmersheim’s training, “are signs of being in
shock.” While in the basement Officer Palmersheim “asked [B.T.] what the problem is,
and [B.T.] told [Officer Palmersheim] that he was stabbed.”
Officer Palmersheim “wanted to make sure that the person that stabbed [B.T.] was
not a current threat to [the police] or for the EMS that was going to be arriving shortly.”
He “asked [B.T.] who stabbed him and at what time.” B.T. responded that “Monkey” had
stabbed him around 3:00 a.m. Officer Palmersheim asked B.T. about the incident, and B.T.
responded that “there was a confrontation at the front door or the south door of the house,
that Monkey was trying to get in the house and when [B.T.] . . . was trying to shut the door
on Monkey, that [B.T.] was stabbed at that point.”
Officer Palmersheim viewed his role as a “First Re sponder for . . . medical
assistance.” He was also “there for scene safety for the . . . ambulance that was coming.”
Officer Palmersheim explained during cross -examination that he “didn’t know anything
prior to [his] arrival” and that he learned when the stabbing had occurred when he spoke
to B.T.
The district court ruled that B.T.’s statements to Officer Palmersheim were
admissible under the residual exception to the hearsay rule and that their admission would
not violate LoVan’s confrontation rights. But the district court held that the majority of
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B.T.’s other statements at the scene, including additional statements to Officer
Palmersheim, were inadmissible under the Confrontation Clause.
The case was tried to a jury, and Officer Palmersheim testified as follows regarding
his conversation with B.T.:
Then I asked [B.T.] what had happened and he told me that he
was stabbed and showed me a puncture just above his belly
button on his abdomen.
. . . .
I asked [B.T.] who had stabbed him and he told me it was a
person named Monkey, and I asked him when this happened
at. He told me it was at about 3:00 a.m., uh, that morning and
that there was a —that Monkey came over to his house, was
trying to get in the door, [B.T.] was trying to shut the door on
him and during that altercation he ended up being stabbed.

The jury found LoVan guilty of all but one of the charged offenses, and the district
court sentenced him to serve 200 months in prison. LoVan appeals.
D E C I S I O N
LoVan contends that “[t]he district court violated [his] confrontation rights by
admitting hearsay statements [B.T.] made to Officer Palmersheim identifying LoVan as
the person who stabbed [B.T.] because the st atements were testimonial.” 1 He argues that
“[t]he statements [B.T.] made about who stabbed him, and why and how the altercation
occurred, were testimonial because when Palmersheim questioned [B.T.], the emergency
had been over for hours and hours.”
An appellate court generally reviews a district court’s evidentiary rulings for a clear
abuse of discretion. State v. Warsame, 735 N.W.2d 684, 689 (Minn. 2007). But appellate

1 LoVan does not challenge the district court’s hearsay ruling.
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courts review de novo whether the admission of evidence violate d a defendant ’s rights
under the Confrontation Clause. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
The Confrontation Clause guarantees a criminal defendant the right “ to be
confronted with the witnesses against him .” U.S. Const. amend VI. In Crawford v.
Washington, the United States Supreme Court held that the Confrontation Clause prohibits
the admission of testimonial out-of-court statements unless the declarant is unavailable to
testify and there was a previous opportunity to cross -examine the declarant. 541 U.S. 36,
68, 124 S. Ct. 1354, 1374 (2004) . Whether a declarant’s statement to the police was
testimonial depends on the primary purpose of the police questioning. Davis v.
Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006). The Supreme Court has
explained that
“[s]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.”

Michigan v. Bryant, 562 U.S. 344, 356, 131 S. Ct. 1143, 1154 (2011) (quoting Davis, 547
U.S. at 822, 126 S. Ct. at 2273-74).
The Supreme Court has further explained that when a court determines whether the
Confrontation Clause bars the admission of a statement at trial, the court
should determine the “primary purpose of the interrogation” by
objectively evaluating the statements and actions of the parties
to the encounter, in light of the circumstances in which the
interrogation occurs. The existence of an eme rgency or the
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parties’ perception that an emergency is ongoing is among the
most important circumstances that courts must take into
account in determining whether an interrogation is testimonial
because statements made to assist police in addressing an
ongoing emergency presumably lack the testimonial purpose
that would subject them to the requirement of
confrontation. . . . [T]he existence and duration of an
emergency depend on the type and scope of danger posed to
the victim, the police, and the public.

Id. at 370-71, 131 S. Ct. at 1162 (footnote omitted).
For example, in Bryant, police questioned a “mortally wounded” victim “in a gas
station parking lot.” Id. at 348, 131 S. Ct. at 1150. The victim “had a gunshot wound to
his abdomen.” Id. at 349, 131 S. Ct. at 1150. “The police asked him what had happened,
who had shot him, and where the shooting had occurred.” Id. (quotation omitted). The
victim identified his assailant and described the shooting. Id. The United States Supreme
Court considered the following circumstances in determining whether the primary purpose
of the police interrogation was to meet an ongoing emergency and whether the victim’s
identification of the shooter therefore was a nontestimonial statement.
First, the Sup reme Court examined the circumstances in which the interrogation
occurred. Id. at 371, 131 S. Ct. at 1163. The Supreme Court noted that “[a]t no point
during the questioning did either [the victim] or the police know the location of the
shooter.” Id. at 374, 131 S. Ct. at 1164. The Supreme Court reasoned that “[a]n assessment
of whether an emergency that threatens the police and public is ongoing cannot narrowly
focus on whether the threat solely to the first victim has been neutralized because the threat
to the first responders and public may continue. ” Id. at 363, 131 S. Ct. at 1158. The
Supreme Court concluded that “[a]t bottom, there was an ongoing emergency here where
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an armed shooter, whose motive for and location after the shooting were unknown, had
mortally wounded [the victim] within a few blocks and a few minutes of the location where
the police found [him].” Id. at 374, 131 S. Ct. at 1164.
Having concluded that there was an ongoing emergency, the Supreme Court
considered the circumstances of that emergency. Id., 131 S. Ct. at 1165. The Supreme
Court noted that the victim’s statements to police were made while he “ was lying in a gas
station parking lot bleeding from a mortal gunshot wound to his abdomen ” and that “[h]e
was obviously in con siderable pain and had difficulty breathing and talking.” Id. at 375,
131 S. Ct. at 1165. The Supreme Court reasoned:
The medical condition of the victim is important to the primary
purpose inquiry to the extent that it sheds light on the ability of
the victim to have any purpose at all in responding to police
questions and on the likelihood that any purpose formed would
necessarily be a testimonial one. The victim’s medical state
also provides important context for first responders to judge
the existenc e and magnitude of a continuing threat to the
victim, themselves, and the public.

Id. at 364 -65, 131 S. Ct. at 1159. The Supreme Court concluded that based on the
description of the victim’s condition and his statements , it could not “say that a person in
[the victim’s] situation would have had a ‘primary purpose ’ ‘to establish or prove past
events potentially relevant to later criminal prosecution. ’” Id. at 375, 131 S. Ct. at 1165
(quoting Davis, 547 U.S. at 822, 126 S. Ct. at 2274).
The Supreme Court next considered the circumstances from the perspective of an
objective officer. Id. at 375-76, 131 S. Ct. at 1165-66. The Supreme Court noted that the
responding officers
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did not know why, where, or when the shooting had occurred.
Nor did they know the location of the shooter or anything else
about the circumstances in which the crime occurred. The
questions they asked—what had happened, who had shot him,
and where the shooting occurred —were the exact type of
questions necessary to allow the police to assess the situation,
the threat to their own safety, and possible danger to the
potential victim and to the public, including to allow them to
ascertain whether they would be encountering a violent felon.
In other words, they solicited the information necessary to
enable them to meet an ongoing emergency.

Id. (footnotes and quotations omitted).
The Supreme Court reasoned that even though the victim indicated “that he had
been shot at another lo cation about 25 minutes earlier ,” he “did not know the location of
the shooter at the time the police arrived” and “gave no indication that the shooter, having
shot at him twice, would be satisfied that [he] was only wounded.” Id. at 377, 131 S. Ct.
at 1166. The Supreme Court concluded that “[n]othing in the [victim’s] responses
indicated to the police that, contrary to their expectation upon responding to a call reporting
a shooting, there was no emergency or that a prior emergency had ended.” Id.
Lastly, t he Supreme C ourt considered the informality of the situation and the
interrogation. Id. The Supreme Court noted that the questioning was unstructured and on
location, which was unlike the “station -house interview” in Crawford that it found
testimonial. Id. at 354, 377, 131 S. Ct. at 1153, 1166. The Supreme Court concluded that
“[t]he informality suggests that the interrogators ’ primary purpose was simply to address
what they perceived to be an ongoing emergency, and the circumstances lacked any
formality that would have alerted [the victim] to or focused him on the possible future
prosecutorial use of his statements.” Id. at 377, 131 S. Ct. at 1166.
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Because the circumstances of the encounter, as well as the actions and statements
of the victim and the poli ce, objectively indicated that the primary purpose of the
interrogation was to meet an ongoing emergency, the Supreme Court concluded that the
victim’s identification of the shooter was nontestimonial and that the Confrontation Clause
did not bar its admission at trial. Id. at 377-78, 131 S. Ct. at 1166-67.
The facts here are similar to those in Bryant. The interrogation occurred in an
informal setting, while B.T. was bleeding from a mortal wound to his abdomen. He was
in extreme pain, very pale, and very lethargic. LoVan emphasizes that Officer
Palmersheim arrived at the scene approximately 14 hours after the stabbing. But LoVan
does not explain how the passage of time lessened B.T.’s obvious medical emergency.
From an objective perspective, the apparent passage of time without medical attention
likely exacerbated the risks associated with the medical emergency. Given B.T.’s physical
condition, it is unlikely that B.T. ’s primary purpose during the interrogation was to
establish past events for use in a later criminal prosecution.
Moreover, O fficer Palmersheim was a first responder working with limited
information. When he observed B.T. in the basement he did not know that B.T. had been
stabbed; he only knew that someone at the residence was bleeding from the mouth. Once
Officer Palmersheim learned about the stabbing, the circumstances indicated that there
could be an ongoing threat to first responders and the public. Officer Palmersheim
therefore asked questions regarding the identity and location of the assailant. As explained
in Bryant, an officer’s primary purpose in questioning a victim may be to ensure that the
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area is secure even if the assailant is not in the immediate area of the interrogation. Id. at
372-74, 131 S. Ct. at 1163-64; accord Warsame, 735 N.W.2d at 694.
The relevant circumstances in this case objectively indicate that the primary
purpose of the interrogation was to address what appeared to be an ongoing emergency .
As to this point, the following discussion from the Minnesota Supreme Court is instructive.
As first responders to emergencies, police are often required to
assess a party’ s injuries and determine whether those injuries
must be immediately addressed and whether the party requires
additional assistance from paramedics or other health care
professionals. In order to make that assessment, officers must
inevitably learn the circumstances by which the party was
injured, and if the circumstances of the questions and answers
objectively indicat e that gaining such information is the
primary purpose of th e interrogation, then the party’ s
statements are nontestimonial. We acknowledge that
information about a victim’s injury and its cause may be useful
in a later prosecution, but for Confrontation Clause purposes,
it is the primary purpose of the interrogation that is dispositive.

Warsame, 735 N.W.2d at 693.
The supreme court further explained that “ an interrogation that begins for the
purpose of determining the need for emergency assistance ca n evolve into testimonial
statements once that purpose has been achieved .” Id. at 695. The district court here
recognized this distinction and carefully parsed out the victim’s statements that were
obtained after Officer Palmersheim had determined the need for emergency assistance.
In conclusion, the primary purpose of Officer Palmersheim’s initial interview of
B.T. was to determine the extent of what objectively appeared to be an ongoing emergency.
That initial, brief questioning informed Officer Palmersheim’s assessment of the situation
as a first responder attending to an individual with a serious , unexplained medical
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condition. Once Officer Palmersheim obtained basic information regarding how B.T. was
injured and whether there was an ongoing th reat, the primary purpose was achieved.
Because t he s tatements at issue here were obtained prior to that time , they were
nontestimonial. The district court therefore did not err by ruling that the admission of
B.T.’s statements to Officer Palmersheim did not violate the Confrontation Clause.
Affirmed.