State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0430

State of Minnesota,
Respondent,

vs.

Scott Allen Germscheid,
Appellant.

Filed May 13, 2019
Affirmed
Halbrooks, Judge

Washington County District Court
File No. 82-CR-16-1453

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Kayla K. Wengronowitz, Joseph Tamburino, Caplan & Tamburino Law Firm, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his conviction of malicious punishment of a child, arguing that
the district court abused its discretion in determining that (1) the victim’s out -of-court

2
statement was admissible under the residual exception to the hearsay rule, (2) the admission
of the statement violated his right under the Confrontation Clause to confront witnesses
against him, and (3) he was denied the opportunity to present a complete defense. We
affirm.
FACTS
On April 7, 2016, the nurse at A.S.G.’s elementary school noticed that he had
bruises on both of his ears. Sarah Terpstra, a social worker with the school district, met
with A.S.G. and asked him about the cause of the bruises. A.S.G. said that “ his head hit
his bed really hard, and if anybody asked, his dad said to tell them that his ears got stuck
in the chair.” Appellant Scott Allen Germscheid is A.S.G.’s father. A.S.G. also stated that
“when he is punished, it has to hurt really bad.” Terpstra subsequently filed a report with
Washington County Community Services.
The following day, Gina Solomon, a social worker with Washington County
Community Services, interviewed A.S.G. at his elementary school. A.S.G. said that he did
not know wh at happened, but indicated that he and his father noticed the bruises “right
after [A.S.G.] had been punished.” A.S.G. told Solomon that his father had hit him on the
ears and head while punishing him for his behavior at school. A.S.G. stated that his father
told him to tell anyone who asked that “he got his head stuck in a chair.” Solomon also
interviewed J.H., the son of Germscheid’s girlfriend, S.H . When Solomon explained that
she was a social worker, J.H. state d, “[I]t’s not abuse, you know.” Solomon had not
mentioned abuse.

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Solomon then interviewed Germscheid. Germscheid d enied hitting A.S.G. , but
admitted to grabbing him by the face. Washington County Community Services referred
the matter to the Bayport Police Department. On April 8, Sergeant Jay Jackson interviewed
A.S.G. Sergeant Jackson noticed “significant bruising” on A.S.G.’s ears and that A.S.G.’s
demeanor changed when asked abo ut the bruises. Sergeant Jackson interviewed
Germscheid later that day. Germscheid “made a statement tha t he did not slap [A .S.G.]
multiple times.” When asked if he had slapped him once, Germscheid responded that “he
never had any int ention of hurting his child.” Germscheid admitted that it was possible
that he had used more force than he thought when disciplining his son. He indicated that,
while disciplining A.S.G., he “reached out and grabbed ahold of [A.S.G.’s] head and tilted
it up so [A.S.G.] would look at him.”
Respondent State of Minnesota charged Germscheid with one count of malicious
punishment of a child and one count of misdemeanor domestic assault. On September 18,
2017, the district court held a motion hearing. The district court determined that A.S.G.
was not competent to testify at trial. Following this determination, the prosecutor conceded
that A.S.G.’s statement to Sergeant Jackson was inadmissible as evidence. But he argued
that A.S.G.’s out-of-court statements to Terpstra and Solomon should be admitted because
they were not testimonial, and therefore admission would not v iolate the Confrontation
Clause. In addition, the prosecutor argued that the out-of-court statements were otherwise
admissible under Minn. R. Evid. 807.
Germscheid objected to the admission of the statements, arguing that they were
testimonial in nature and did not contain sufficient indicia of reliability because they were

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inconsistent. The district court ruled that the statements were admissible under rule 807.
Germscheid then moved to admit evidence of A.S.G.’s past conduct that he argued tended
to show that he was dishonest, including school behavioral records showing that he fought
with other children, a 911 call in which A.S.G. reported that he was witnessing a domestic
dispute between Germscheid and S.H., and an instance in which A.S.G. reported abuse by
S.H. The district court ruled that the evidence was inadmissible.
Following a two -day trial, the jury found Germscheid guilty of malicious
punishment of a child but acquitted him of domestic assault. The district court sentenced
Germscheid to 365 days in jail, stayed 363 days of the sentence, and gave him credit for
two days of time served. This appeal follows.
D E C I S I O N
I.
“Evidentiary rulings rest within the sound discretion of the district court and will
not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203
(Minn. 2003). The appellant bears the burden of establishing that the district court abused
its discretion and that he was thereby prejudiced. Id.
Germscheid argues that the district court abused its discretion by admitting A.S.G.’s
out-of-court statement to Solomon under rule 807 after A.S.G. was found not competent to
testify. The residual exception to the hearsay rule allows admission of statements not
falling under one of the accepted hearsay exceptions that (1) have “equivalent
circumstantial guarantees of trustworthiness ”; (2) are evidence of a material fact, (3) are
more probative on that point than any other evidence that is attainable by reasonable

5
methods, and (4) serve the interests of justice and the general purpose of the rules of
evidence. Minn. R. Evid. 807. “The court should make findings explicitly on the record
unless there is a waiver, . . . or the basis of the ruling is obvious.” State v. DeRosier, 695
N.W.2d 97, 105 (Minn. 2005) (quotation omitted). Courts examine the totality of the
circumstances in determini ng if the statements have a sufficient guarantee of
trustworthiness. State v. Martinez, 725 N.W.2d 733, 737 (Minn. 2007).
Germscheid concedes that the statement constituted evidence of a material fact and
was more probative on the point for which it was offered than other evidence that could
have been obtained through reasonable methods. But he argues that the district court failed
to make an explicit finding on the trustworthiness of the statement and that therefore
admission of the statement did not serve the i nterests of justice. In determining that the
statement was admissible, the district court stated:
In my view, the primary purpose of both Ms. Terpstra and
Ms. Solomon was not prosecution, and I notice a variety of
things.

First of all, that when asked about this incident, in what
is apparent to me is a non -leading manner in both of these
circumstances, the first thing that is reported is that [A.S.G.]
said was that if anyone asked he was to say that his head got
caught in a chair.

That’s significant to me, because when asked further
about his ears, he did talk ab out the incident in a different
manner. I view these statements to be material, to be probative,
and more probative than other available evidence or
information. I do view [A.S.G.’s] statements to be
spontaneous within the meaning of the Ahmed case anywa y
. . . .

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So that due to the spontaneity, the original purpose of
the interviews, the probative value, and the interests of justice,
I am going to allow that information to come in in a substantive
manner.

Germscheid argues that the district court focuse d solely on whether A.S.G.’s
statement was spontaneous. The district court did determine that A.S.G.’s statement was
spontaneous within the meaning of State v. Ahmed . 782 N.W.2d 253, 260 (Minn. App.
2010). But the district court’s ruling on the statemen t’s admissibility went beyond a
spontaneity assessment.
In Ahmed, this court observed a variety of circumstances that are relevant in child -
abuse cases. Id. The factors include:
whether the statement was spontaneous, whether the
questioner had a precon ceived idea of what the child should
say, whether the statement was in response to leading
questions, whether the child had any apparent motive to
fabricate, whether the statements are of the type one would
expect a child of that age to fabricate, whether the statement
remained consistent over time, and the mental state of the child
at the time of the statements.

Id.
The district court’s analysis reflects consideration of the appropriate factors . The
district court observed that it was “apparent” that the statements were in response to non -
leading questions. The district court also stated that it was “significant” that , in both
statements, A.S.G. first reported that he was instructed to say that his head got caught in a
chair if he was asked about the bruises. Thus, A.S.G. consistently stated that he was
provided with an answer for questions about the bruises.

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The district court made findings as to which factors it found persuasive that are
relevant to determining trustworthiness. On this record, we conclude that the district court
properly exercised its discretion in admitting A.S.G.’s statement under rule 807.
II.
Both the United States and Minnesota Constitutions guarantee a defendant the right
“to be confronted with the witnes ses against him.” U.S. Const. amend. VI; Minn. Const.
art. I, § 6. The right to confrontation is violated if testimonial hearsay statements are
admitted into evidence, unless the declarant is unavailable and the defendant has had a
prior chance to cross -examine the declarant. State v. Caulfield , 722 N.W.2d 304, 308
(Minn. 2006) (citing Crawford v. Washington , 541 U.S. 36, 68, 124 S. Ct. 1354, 1374
(2004)). We review de novo a claim that the admission of evidence violated a defendant’s
Sixth Amendment right to confrontation. Id. The state bears the burden to establish that
the challenged statements are not testimonial. Id.
Germscheid contends that the admission of A.S.G.’s out -of-court statement to
Solomon violated his rights under the Confrontation Clause. Germscheid did not have the
prior chance to cross -examine A.S.G. He argues that the statement is therefore
inadmissible because it is testimonial in nature . In Crawford, the Supreme Court gave
examples of types of testimonial statements and descr ibed “testimony” as typically a
“solemn declaration or affirmation made for the purpose of establishing or proving some
fact.” 541 U.S. at 51, 124 S. Ct. at 1364 (quotations omitted). However, Crawford “did
not offer an exhaustive definition of ‘testimon ial’ statements.” Ohio v. Clark, 135 S. Ct.
2173, 2179 (2015).

8
The state argues that this case is analogous to Clark. In Clark, a preschool teacher
noticed that a three -year-old child had several injuries. Id. at 2178. When she asked the
child who had caused the injuries, the child indicated that Clark was responsible. Id. The
teacher reported the abuse to a child -abuse hotline, and Clark was later prosecuted. Id.
The child was found not competent to testify, but his statements were admitted as evidence.
Id. The Supreme Court of Ohio determined that the admission of the statements violated
the Confrontation Clause, but the Supreme Court reversed. Id. at 2177. In determining
that the statements were nont estimonial, the Sup reme Court observed that there was “no
indication that the primary purpose of the conversation was to gather evidence for Clark’s
prosecution.” Id. at 2181. Rather, the primary purpose was to protect the child. Id. The
Supreme Court noted that the statements “occurred in the context of an ongoing emergency
involving suspected child abuse” and that the child’s young age made it unlikely that he
“would intend his statements to be a substitute for trial testimony.” Id. at 2181-82. Finally,
the Supreme Court observed that the questioning took place in the informal setting of the
lunchroom and classroom rather than the formal setting of a police station. Id. at 2181.
The state asserts that the facts of this case are sufficiently similar to Clark to support
the determination that A.S.G.’s statement was nontestimonial in nature. Like the child in
Clark, A.S.G. was interviewed at his elementary school, rather than a police station. There
is nothing in the record to suggest that A.S.G. believed the statements would be used to
prosecute his father or in lieu of trial testimony. Solomon testified that when interviewing
A.S.G. she used a technique of questioning that was designed to avoid leading A.S.G., but
rather encourage him to tell the story as best he could. She used non-leading, open-ended

9
questions, rather than questions directed at Germscheid specifically. Her questions were
therefore not designed to gather information about Germscheid, but rather encourage
A.S.G. to explain how he got the bruises. And as the state notes, Solomon was required to
interview A.S.G. and Germscheid under Minn. Stat. § 626.556, subd. 10(j) (2018), to
“ensure the immediate safety of the child.” The primary purpose of the interview was
therefore not to gather evidence to prosecute Germscheid.
Germscheid cites to Bobadilla v. Carlson , to support his argument that A.S.G.’s
arguments were testimonial in nature. 575 F.3d. 785 (8th Cir. 2009). In Bobadilla, the
Eighth Circuit determined that statements made by a child to a county social worker were
testimonial and could not be admitted without violating the Confrontation Clause. Id. at
793. Germscheid argues that, as in Bobadilla, A.S.G.’s statements were made to a county
social worker, rather than a teacher, and that the interview was not conducted on the same
day the report was made. But in Bobadilla, the county worker did not conduct the interview
until five days after the report was made and did so only at the request of a police officer .
Id. at 787. The Bobadilla interview was conducted at the police station, and the officer sat
across from the child during the interview. Id. at 788. Here, the interview was conducted
at A.S.G.’s school, without any police officers present. A.S.G. therefore had no reason to
suspect that law enforcement may become involved. And Solomon conducted the
interview the morning after she received the report and without being requested to do so
by law enforcement.
On this record, the district court did not err in determining that A.S.G.’s statements
to Solomon were nontestimonial in nature . The primary purpose of the interview was to

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address concerns of abuse , rather than to gather information to be used in prosecuting
Germscheid. Accord ingly, we conclude that admission of the statements did not violate
Germscheid’s rights under the Confrontation Clause.
III.
A criminal defendant has a constitutional right to “a meaningful opportunity to
present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528,
2532 (1984). That right encompasses, among other things, “the right to present the
defendant’s version of the facts . . . to the jury so it may decide where the truth lies.”
Washington v. Texas , 388 U.S. 14, 19, 87 S. Ct. 1920, 192 3 (1967). But in presenting a
defense, the defendant “must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and innocence.”
Chambers v. Mississippi , 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973). Evidentiary
rulings will not be reversed absent a clear abuse of discretion. State v. Nunn, 561 N.W.2d
902, 906-07 (Minn. 1997).
Germscheid argues that several of the district court’s evidentiary rulings denied him
the opp ortunity to present a complet e defense. During the pretrial motion hearing,
Germscheid sought to admit evidence of A.S.G.’s school behavioral records, evidence that
A.S.G. had previously made a 911 call falsely alleging that a domestic disturbance was
occurring, and evidence that the day following the 911 call A.S.G. falsely reported abuse
by S.H. Germscheid also argues that the district court abused its discretion in allowing
Solomon to testify that J.H. stated “[I]t’s not abuse” when he was interviewed by Solomon.
We address each argument in turn.

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At the motion hearing, Germscheid sought to admit 177 pages of documents that
contain various reports and records from A.S.G.’s kindergarten, first-grade, second-grade,
and third-grade school years. The reports range in date from 2013 until 2017. Germscheid
argued that the school records were relevant because they demonstrated that there were
several instances of A.S.G. “not only having trouble concentrating, having trouble not
listening, and being disrespectful to teachers, but also being physical with other students.”
He argued that A.S.G.’s prior instances of fighting with other students supported his
assertion that A.S.G.’s bruises might have resulted from a fight with another student and
that A.S.G. would be motivated to lie about it to avoid further punishment.
The district court determined that the school records were “not probative enough or
relevant enough” to be admitted. But the district court indicated that it would be willing to
reconsider the ruling if additional evidence suggested that the reports were relevant based
on the timing of when they were made. No additional evidence was presented to support
admission of the reports. Additionally, Terpstra testified that she would have typical ly
been made aware if A.S.G. had been in a fight, and there were no reports that he had been
involved in a fight on the day in question. Terpstra testified extensively about A.S.G.’s
behavioral issues in school and the various methods that the school had tried to address the
behavior. Thus, there was testimony about A.S.G.’s behavioral issues at school.
On this record, we conclude that the district court properly exercised its discretion
in determining that the school reports were inadmissible. The dis trict court provided
Germscheid with the opportunity to show why the reports were relevant, but he failed to
present evidence linking the reports with his argument that A.S.G. may have been in a fight

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with another student. Indeed, the evidence presented s uggested that he had not be en in a
fight during the relevant time frame.
Germscheid next argues that the district court abused its discretion by ruling that he
could not present evidence that , on May 14, 2017, A.S.G. called 911 and falsely reported
there was a domestic disturbance occurring between Germscheid and S.H. and that the
following day A.S.G. reported to his school that “he felt there was abuse going on at the
home, and said that [S.H.] pulled him out of the bathtub, and it hurt and [he] felt fe arful.”
Germscheid argues that these incidents constitute prior false accusations and should have
been admissible to impeach the credibility of A.S.G.’s statements and show his propensity
for dishonesty.
A defendant may be entitled to present evidence of a victim’s prior false accusation.
State v. Goldstein , 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct.
19, 1993). Before such evidence may be admitted, the district court “must first mak e a
threshold determination outside the presence of the jury that a reasonable probability of
falsity exists.” Id. The district court determined that Germscheid had not made a threshold
showing that the reports were false based on “both corroborative evi dence and other
expected testimony that I am expecting to receive.”
Germscheid argues that the district court abused its discretion in determining that
he had not made the threshold showing that a reasonable probability of falsity exists. To
support his assertion that the 911 call and subsequent report of abuse were false, he sought
to admit the testimony of K.L., who had been babysitting A.S.G. on the night that he made
the 911 call. Germscheid contends that A.S.G. called 911 to report that he and S.H. w ere

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fighting and that he felt fearful, which A.S.G. would have no way of knowing because he
was not at home at the time he made the call. He also alleged that A.S.G. had reported to
school officials that S.H. hurt him when she took him out of the bathtub, even though she
had not bathed him the night before the report.
The state argued that these statements were general allegations of abuse that were
not specific to the time that they were made, and the district court agreed. The district court
stated that, after conducting a balancing test, it had determined that Germscheid had not
demonstrated a reasonable probability of falsehood because it anticipated that there would
be trial evidence that corroborated A.S.G.’s allegations of abuse. Accordingly, the district
court treated the statements as general reports of abuse and determined that evidence would
support the allegations. The record supports this determination. The statements are
consistent with A.S.G.’s report of discipline by Germscheid, and Germscheid himself
admitted to grabbing A.S.G.’s head and that it was possible that he had used more force
than he had intended to when disciplining A.S.G. The district court therefore did not abuse
its discretion in determining that the evidence was inadmissible.
Finally, Germscheid argues that the district court abused its discretion in permitting
Solomon to testify that J.H. stated “ [I]t’s not abuse” during his interview with Solomon.
Germscheid argues that the statement constitutes hearsay an d therefore was inadmissible.
Hearsay is defined as “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.” Minn.
R. Evid. 801(c). The state argues that this statement is not hearsay because it was not
offered to prove the truth of the matter asserted. We agree. The statement was not offered

14
to prove that there was no abuse. Rather, the statement was admitted to support the state’s
assertion that Germscheid had coached A.S.G. and J.H. how to respond to questions about
abuse. Accordingly, the district court properly exercised its discretion in admitting the
statement.
Affirmed.