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This opinion will be unpublished and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
A18-1237

State of Minnesota,
Respondent,

vs.

Robert Joseph Gotchie,
Appellant.

Filed August 26, 2019
Affirmed
Smith, Tracy M., Judge

Itasca County District Court
File No. 31-CR-17-2418

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

Matti R. Adam, Itasca County Attorney, Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella t e Publ i c De f e nde r , J e s s i ca Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from judgment and conviction for arson, a ppellant Robert
Gotchie argues that the district court abused its discretion by admitting hearsay statements
under Minn. R. Evid. 807 because it failed to consider all the relevant circumstances and

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because the statements lack “equivalent circumstantial guarantees of trustworthiness.” We
affirm.
FACTS
According to trial testimony, in September 2017, Gotchie and hi s nephew, T.W.,
were living in a trailer home in Itasca County. Early one morning, a fire started in the home,
burning clothing, furniture, and some of the interior walls of the home. T.W. was asleep
when the fire started. Gotchie woke him up, and, when T.W. awoke, he could see light and
smoke from the fire in Gotchie’s room. T.W. then woke his cousin, C.G., who was sleeping
in another home nearby, and together they put out the fire.
A sheriff’s deputy arrived at the scene sometime after the fire was out. About 40
minutes after the deputy arrived, T.W. made a statement to the deputy. In the statement,
T.W. indicated that Gotchie had started the fire. Specifically, he said that, when Gotchie
woke him up, Gotchie said, “I started it on fire.” T.W. also sa id that, after he and C.G.
began putting out the fire, Gotchie returned with a lighter and tried to relight the fire.
Two hours after the first statement, T.W. gave a second statement to the deputy and
two other law enforcement officers. This second statement was largely consistent with the
first. T.W. said that he awoke when Gotchie called his name and told him, “I lit the house
on fire.” He again said that Gotchie tried to relight the fire. T.W. also mentioned that he
and C.G. had locked the doors to the home to keep Gotchie from reentering and lighting
the fire again.
In early November 2017, Gotchie was tried on a single count of first-degree arson.
Gotchie waived his right to trial by jury. At the court trial, the state called T.W. as a witness,

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but, after brief introductory questioning, T.W. invoked his Fifth Amendment right against
self-incrimination. The district court granted T.W. use immunity and ordered him to answer
the questions he was asked.
T.W. testified that he was sleeping in the trailer when he was awoken by Gotchie
and that Gotchie said there was a fire. T.W. packed his clothes and put them outside. He
then woke C.G., and together they used a garden hose to put out the fire. T.W. also testified
that, while they were putting out the fire, he saw Gotchie with a lighter. But he said that he
or C.G. had given Gotchie the li ghter because they could not fi nd a flashlight and it was
hard to see in the trailer. T.W. admitted that he may have told deputies that Gotchie lit the
fire, but T.W. denied that Gotchie had actually done so and den ied that Gotchie had
admitted to lighting the fire.
The state moved to admit T.W.’s prior statements to the sheriff ’s deputy under
Minn. R. Evid. 807. Gotchie opposed the motion, arguing that th e state wrongly relied on
caselaw concerning the previous version of the residual exception—former rule 803(24)—
and that none of the requirements of rule 807 were satisfied. The district court allowed the
state to introduce T.W.’s prior out-of-court statements as substantive evidence.
The state also introduced the testimony of a fire investigator t h a t t h e r e w a s n o
evidence that the fire was caused by a nearby propane tank, the furnace, or an electrical
malfunction. Rather, the fire investigator opined that the fire had been ignited with the help
of an accelerant. In addition, the state introduced testimony from a state forensic laboratory
employee and lab reports indicating that a flammable liquid tha t could have been used as

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an accelerant was present in the carpet of the room where the f ire started, in the carpet of
the hallway outside the room, and in Gotchie’s clothing.
The district court found T.W.’s h earsay statements more credible than his in-court
testimony, described the physical evidence suggesting that the fire was started
intentionally, and found Gotchi e guilty. Gotchie was convicted and sentenced in April
2018.
This appeal follows.
D E C I S I O N
Gotchie argues that the district court abused its discretion by admitting T.W.’s prior
out-of-court statements.
Appellate courts “review a district court’s decision to admit e vidence for an abuse
of discretion.” State v. Vasquez , 912 N.W.2d 642, 648 (Minn. 2018). “A [district] court
abuses its discretion when it re aches a clearly erroneous concl usion that is against logic
and the facts on record.” Id. (quotation omitted).
“‘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.” Minn. R.
Evid. 801(c). Hearsay is inadmis sible unless it falls within an exception to that rule of
inadmissibility. Minn. R. Evid. 8 02. In addition to certain enu merated exceptions, see
Minn. R. Evid. 803, 804, there is a general exception to the rule against hearsay, known as
the residual exception:
A statement not specifically covered by rule 803 or
804 but having equivalent cir cumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court

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determines 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.
A two-step analysis is used to evaluate whether to admit a hearsay statement under
rule 807. State v. Hallmark, 927 N.W.2d 281, 292 (Minn. 20 19). First, the court “look[s]
at the totality of the circumstances to determine whether the h earsay statement has
circumstantial guarantees of trustworthiness.” Id. (quotation omitted). Then it
“determine[s] whether the three enumerated requirements of rule 807 are met.” Id. at 293.
Gotchie focuses only on the first step, arguing that T.W.’s sta tements did not have
equivalent circumstantial guarantees of trustworthiness.
A. The district court did not err in relying on State v. Ortlepp.

Gotchie’s initial argument is that the district court erred in in placing “exclusive
reliance” on the factors from State v. Ortlepp , 363 N.W.2d 39, 43-44 (Minn. 1985), in
determining the trustworthiness of the out-of-court statements.
In Ortlepp, the supreme court evaluated whether a hearsay statement was admissible
under Minn. R. Evid. 803(24), the substantively identical forme r version of the residual
exception. 363 N.W.2d at 43-44. The supreme court relied on four factors to determine that
the hearsay statement was admissible: first, there was no Confr ontation Clause problem;
second, there was no dispute over whether the witness made the prior statement or what

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the prior statement was; third, the statement was contrary to t he witness’s penal interest;
and, fourth, the statement was consistent with the state’s other evidence. Id.
The supreme court has since held that the factors from Ortlepp “are not an exclusive
list of the indicia of reliability.” State v. Martinez , 725 N.W.2d 733, 738 (Minn. 2007).
Instead, courts are to “use a totality of the circumstances tes t to determine whether the
statement has equivalent circumstantial guarantees of trustworthiness.” State v. Davis, 820
N.W.2d 525, 537 (Minn. 2012) (quotation omitted). In Davis, the supreme court identified
a number of other circumstances that might be considered among the totality of the
circumstances, including:
whether the statement was given voluntarily, under oath, and
subject to cross-examination and penalty of perjury; the
declarant’s relationship to the parties; the declarant’s
motivation to make the statem ent; the declarant’s personal
knowledge; whether the declarant ever recanted the statement;
the existence of corroborating evidence; and the character of
the declarant for truthfulness and honesty.
Id. After briefing for this case was complete but before oral argum ent, the supreme court
clarified that Davis does not necessarily require a district court to look beyond the Ortlepp
factors. Hallmark, 927 N.W.2d at 293 (stating that a “district court does not ab use its
discretion by admitting [a hearsay] statement as trustworthy” when the Ortlepp factors are
present). But if other circumstances tend to weaken the trustworthiness of the statement,
consideration of those factors may be necessary. Id.
In arguing that T.W.’s hearsay s tatements had sufficient circumstantial guarantees
of trustworthiness, the state relied on the four Ortlepp factors. The district court’s ruling
on the state’s motion essentially adopted that argument, finding the situation in this case to

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be “directly on point” with the cases cited by the state and th at T.W.’s “statements are
trustworthy, that they were made immediately at the time of the incident, the statements
were given to police.”1
Gotchie argues that because the district court did not consider the factors identified
in Davis, the district court failed to consider the totality of the cir cumstances and thus
abused its discretion. But, as Hallmark indicates, the Ortlepp factors can be sufficient to
support a finding of trustworthiness. 927 N.W.2d at 292-93. Thus, while the district court
should have explicitly considered all relevant factors, its reliance on Ortlepp was not per se
an abuse of discretion. Id. at 294.
Gotchie further argues that the additional relevant circumstances identified in Davis
were not present here and theref ore do not tend to guarantee tr ustworthiness. But the
absence of certain guarantees of trustworthiness does not preve nt the admission of a
hearsay statement so long as the circumstantial guarantees that are present are “equivalent”
to those in rules 803 and 804. Minn. R. Evid. 807; see Hallmark, 927 N.W.2d at 292-93
(describing various combinations of less than all possible circ umstantial guarantees of
trustworthiness that make a statement sufficiently trustworthy to be admitted). We turn to
the circumstances that were present.

1 We note that, as reflected in its ruling, the district court d id not rely exclusively on the
Ortlepp factors but also considered the additional circumstance that th e statements were
made soon after the event. Gotchie also challenges the district court’s reliance on that
factor, which we address below.

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B. The district court did not ab use its discretion by concludin g that the
hearsay statements had adequate circumstantial guarantees of
trustworthiness.

Gotchie argues that the factors r elied upon by the district cou rt do not provide
equivalent circumstantial guarantees of trustworthiness. He identifies five factors—each of
the Ortlepp factors plus the temporal proximity between the event and T.W.’s statement—
and argues that none of them tends to show trustworthiness. He also argues that one
additional circumstance—T.W.’s disavowal at trial of his out-of -court statements—tends
to show a lack of trustworthiness.
1. Availability for cross-examination

Gotchie first argues that T.W.’s availability for cross-examina tion does not
guarantee the trustworthiness of his prior hearsay statement but only serves to eliminate a
constitutional barrier to admissi on of the hearsay statements. See U.S. Const. amend. VI
(providing the accused in all criminal prosecutions with the ri ght “to be confronted with
the witnesses against him”); Crawford v. Washington , 541 U.S. 36, 59, 124 S. Ct. 1354,
1369 (2004) (holding that the Confrontation Clause prohibits the admission of testimonial
hearsay by absent declarant unless the declarant is unavailable and the defendant had a
prior opportunity to cross-examine the declarant).
But the utility of the Ortlepp factors for showing trustworthiness has recently been
reaffirmed. Hallmark, 927 N.W.2d at 292-93. Thus, a declarant’s availability for cr oss-
examination remains a fact that tends to demonstrate the trustworthiness of a prior hearsay
statement.

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Further, availability for cross-examination does more than just allow hearsay to be
admitted without violating the ri ght to confrontation; it can a lso help guarantee the
trustworthiness of a past statement. Ortlepp, 363 N.W.2d at 44 (citing California v. Green, 399 U.S. 149, 158, 90 S. Ct. 19 30, 1935 (1970)). The declarant’ s presence at trial and
availability for cross-examinati on allows the fact-finder to ev aluate the declarant’s
credibility, which in turn allows an inference as to the credib ility of the past statement.
Green, 399 U.S. at 158, 90 S. Ct. at 1935. Under cross-examination, a witness must either
affirm the prior statement, in which case the statement is effe ctively made under oath, or
deny it, in which case the fact-finder can evaluate the witness ’s explanation for the
discrepancy between the statements and determine which is more credible. Id. at 158-59,
99 S. Ct. at 1935. Thus, the declarant’s availability for cross -examination provides an
opportunity for the fact-finder to determine the truth of the h earsay statement. T.W.’s
availability for cross-examination in this case supports the tr ustworthiness of the prior
statement.
2. Certainty about the subs tance of the statements

Gotchie next argues that the fact that T.W.’s statements were a udio recorded does
not tend to show their trustworthiness, citing the supreme cour t’s statement in a different
State v. Davis case that “[t]he relevant circumstances under Minn. R. Evid. 80 7 are those
circumstances actually surrounding the making of the statements .” 864 N.W.2d 171, 181
(Minn. 2015) (quotation omitted). Gotchie argues that certainty about the substance of a
statement is irrelevant to trust worthiness because that certain t y i s n o t a c i r c u m s t a n c e
surrounding the making of the statement.

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Gotchie’s argument is, essentially, that Davis abrogated the second Ortlepp factor.
See Ortlepp, 363 N.W.2d at 44 (stating that lack of dispute over what a statement contained
is a factor favoring admission). But Davis does not truly cast doubt on the continued
viability of the second Ortlepp factor. In Davis, immediately after stating that the relevant
circumstances are those surrounding the making of the statement, the supreme court treated
a witness’s lack of recollection of a hearsay statement as a fa ctor suggesting lack of
reliability. 864 N.W.2d at 181. Thus, whatever the supreme court meant by “circumstances
actually surrounding the making of the statements,” it did not mean that certainty at the
time of trial about the substance of the statements is no longe r relevant. And, again,
Hallmark has since reaffirmed t he sufficiency of the Ortlepp factors, confirming their
continued viability. Hallmark, 927 N.W.2d at 292-93. The fact that T.W.’s statement was
audio recorded, and that its subs tance was therefore not in dis pute, circumstantially
guaranteed its trustworthiness.
3. Familial interest

Gotchie’s third argument is that the district court should not have relied on the fact
that the statement was contrary to the penal interests of T.W.’ s relative, Gotchie, as an
indicator of trustworthiness. Gotchie admits that “the declaran t’s relationship to the
parties” is a relevant factor. Davis, 820 N.W.2d at 537. But he argues that T.W.’s
relationship with Gotchie does not provide an equivalent circum stantial guarantee of
trustworthiness because it would not make his hearsay statement a s t a t e m e n t a g a i n s t
interest under Minn. R. Evid. 804(b)(3).

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Assuming that Gotchie is correct that T.W.’s statement would no t be admissible
under Minn. R. Evid. 804(b)(3), his argument nonetheless fails. Gotchie cites no caselaw
establishing that rule 804(b)(3) sets the standard for when a d eclarant’s interests may
suggest trustworthiness for the purposes of rule 807. And caselaw recognizes that the fact
that a statement is contrary to the penal interest of a family member may indicate that it is
trustworthy. See, e.g., Davis, 820 N.W.2d at 537 (listing “the declarant’s relationship to
the parties” as a relevant factor); State v. Plantin, 682 N.W.2d 653, 659 (Minn. App. 2004)
(stating that the third Ortlepp factor was satisfied because the statement was contrary to
the victim’s “interests in a rel ationship with” the defendant), review denied ( M i n n .
Sept. 29, 2004).
Gotchie also argues that, even i f their familial relationship c ould make these
statements contrary to T.W.’s interest, the statements were not a c t u a l l y c o n t r a r y t o h i s
interest under the circumstances. He argues that T.W.’s main co ncern was “to make sure
the police understood he played no part in causing the fire.”
Gotchie is correct that, if a de clarant’s statement is intended to deflect blame from
himself, the fact that it is also contrary to some interest of the declarant (here, because it
implicates a family member) will not be a circumstance making i t reliable. Cf. State v.
Jones, 556 N.W.2d 903, 909 (Minn. 1996) (concluding that a statement was not against
penal interest when it was designed to “thr[o]w the bulk of the responsibility for the more
serious offenses” onto another, even though the statement also implicated the declarant in
a crime). Thus, if T.W. implicated his uncle in order to protec t himself from legal

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consequences, the fact that the statement was contrary to his u ncle’s penal interest would
not be a factor favoring reliability.
But when T.W. disavowed his prior statements, he did not claim to have made them
only because he wanted to be sur e that he was not a suspect. An d in the statements
themselves, T.W. never mentioned that he wanted the deputy to k now that he didn’t start
the fire, nor did the deputy suggest that T.W. had done so. Indeed, the far-fetched revision
of his previous statement that Gotchie was trying to relight th e fire—specifically, that
Gotchie was only using the lighter to see because he could not find a flashlight—suggests
that, at trial, he was trying to protect his uncle. That fact reinforces the conclusion that the
original statement was contrary t o his familial interest. The c laim that T.W. only blamed
the fire on Gotchie in order to protect himself is not supported by the record.
4. Corroboration

Gotchie’s fourth argument is that T.W.’s statements were insuff iciently
corroborated. Gotchie admits that parts of T.W.’s hearsay state ments were corroborated;
he only argues that nothing corroborated T.W.’s statement that Gotchie admitted to starting
the fire.
But corroborating evid ence need not corroborate every aspect of a witness’s
testimony. In State v. Robinson , the supreme court affirmed the admission of a prior
hearsay statement made by a victim of domestic assault where th ere was no direct
corroboration for the key fact of the statement—that the defendant had hit her in the face.
718 N.W.2d 400, 410 (Minn. 2006). Rather, the supreme court held that there was adequate
corroboration based, first, on th e consistency of the victim-wi tness’s actions with her

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hearsay statement and, second, on the fact that the physical ev idence was consistent with
her out-of-court statement. Id. Similar facts are corroborative here. Evidence showing the
place of ignition, the presence of ignitable liquid residues, a nd the lack of a source of
accidental ignition is consistent with Gotchie having intentionally lit the fire. Additionally,
both of T.W.’s initial statements to the police suggest, in mul tiple ways, that Gotchie
started the fire. Thus, even if the key part of the statement—Gotchie’s admission to starting
the fire—was not directly corroborated, the other corroborating evidence was sufficient.
5. Temporal proximity

Gotchie argues that because the s tatements were made one to two hours after the
911 call, they would not be admissible as excited utterances, and the district court therefore
should not have relied on their temporal proximity to the fire as enhancing their
trustworthiness.
In Tate, this court treated the fact that a statement “was made the da y after [an]
incident” as a circumstantial guarantee of trustworthiness. State v. Tate, 682 N.W.2d 169,
177 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). The circumstances suggest
trustworthiness even more strongly in this case than in Tate because one statement was
given 40 minutes after the 911 call and the second was given ab out two hours after that.
The temporal proximity of the tw o on-the-scene statements to th e event they describe
suggests that they were trustworthy.
6. Recantation

Finally, Gotchie argues that T.W.’s statements to police were n ot trustworthy
because T.W. recanted them at trial. See Hallmark, 927 N.W.2d at 293 (indicating that

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some circumstances may suggest a lack of trustworthiness). The district court did not
explicitly analyze T.W.’s decision to recant when determining whether the statements were
admissible. However, given the totality of the circumstances—in particular the fact that
T.W.’s trial testimony appears to have been intended to protect his uncle, as discussed
above—the fact that T.W. recanted his statement does not seriou sly undermine the
trustworthiness of the statements.
In sum, each of the factors relied upon by the district court c ircumstantially
guaranteed the trustworthiness of T.W.’s hearsay statements, and the district court did not
abuse its discretion by admitting those statements despite T.W.’s disavowal of them.
Affirmed.