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This opinion will be unpublished and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
A18-1247

State of Minnesota,
Respondent,

vs.

Duane Cedric Allen,
Appellant.

Filed June 17, 2019
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-17-5222

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of third -degree criminal sexual conduct,
arguing that the district court erroneously concluded that the victim’s out -of-court
statements to a police officer and to the nurse who performed her sexual-assault exam fell
within exceptions to the hearsay rule. Appellant also argues that the district court erred by
not awarding him jail credit dating back to the date law enforcement matched his DNA to
a sample taken from the victim during her sexual-assault exam. We affirm.
FACTS
On March 1, 2000, C.C. flagged down a police officer near a park in Minneapolis
and reported that she had just been raped in the park. The officer transported C.C. to
Hennepin County Medical Center (HCMC) where a Sexual Assault Resource Services
(SARS) nurse performed a sexual-assault exam. The police attempted to contact C.C. later
that month but were unable to do so . The police therefore closed their criminal
investigation on March 21.
In 2009, the Hennepin County Sheriff’s Office Crime Laboratory received a federal
grant to test samples from backlogged sexual-assault cases. In 2010, the crime laboratory
lifted an unidentified male DNA profile from vaginal swabs taken during C.C .’s sexual-
assault exam and entered the profile into a DNA computer database. In 2013, the crime
laboratory learned that the male DNA profile matched a sample in the database belonging
to appellant Duane Cedric Allen and notified the Minneapolis Police De partment of the
match. In 2015, the case was assigned to Sergeant Matthew Wente. Sergeant Wente

3
contacted C.C. and began looking for Allen. On February 28, 2017, police located Allen
and obtained a buccal-swab DNA sample from him. Allen’s DNA sample ma tched the
DNA profile obtained from C.C.’s 2000 vaginal swabs.
On March 1, 2017, respondent State of Minnesota charged Allen with third -degree
criminal sexual conduct. The case was tried to a jury. Prior to trial, Allen moved to
exclude, as inadmissible hearsay, evidence contained in notes taken by the SARS nurse
who performed C.C.’s sexual-assault exam. The district court denied the motion, reasoning
that the proffered evidence fit “within the medical diagnosis hearsay exception.”
At trial, Officer Stot Dunphy of the Minneapolis Police Department testified that at
approximately 1:35 a.m. on March 1, 2000, he was flagged down by a woman , whom he
later identified as C.C., next to a park in Minneapolis. Officer Dunphy testified that C.C.
was “upset and frantic” when he encountered her. When the state asked Officer Dunphy
questions regarding C.C.’s statements at the scene, Allen objected on hearsay grounds. The
district court overruled the objection , reasoning that C.C.’s statements to Off icer Dunphy
were excited utterances.
Officer Dunphy testified that C.C. told him that she had “just” been raped in the
park. C.C. reported that she had been at a bar before going to the park, that she left the bar
in a vehicle along with her sister and three unnamed men they met at the bar, that there was
an argument among the occupants of the vehicle regarding whether to drive C.C. home,
that she told the occupants of the vehicle she would walk home, and that one of the men in
the vehicle offered to walk her home. C.C. reported that she walked through the park with
that man and that when they reached the top of a hill, he forced her onto the ground and

4
raped her. C.C. reported that as she was forced to the ground, she said, “What are you
doing?” The man replied, “[Y]ou know what I’m doing and we’re going to get it on.” C.C.
described the perpetrator’s physical appearance to Officer Dunphy, but she did not provide
any other identifying information. Officer Dunphy testified that he brought C.C. to HCMC
for a sexual-assault exam.
The SARS nurse who performed C.C.’s sexual-assault exam testified at trial. The
SARS nurse testified that she was 85 years old at the time of trial and had retired from
nursing. She testified that when she performed sexual-assault exams, she would explain
the nature of the exam to the patients and would ask them to tell her what had happened to
them. The SARS nurse testified that she asked for that information to help her determine
what specimens to collect for laboratory analysis and what medical treatment was
necessary. The SARS nurse testified that she usually took notes to document the patients’
descriptions of the events that caused the need for their examinations and that she took
such notes while examining C.C.
The SARS nurse testified that C.C. was “angry, weeping, and afraid” when the nurse
met her at HCMC. The SARS nurse read her notes regarding C.C.’s first-person narrative
account describing the sexual assault aloud at trial as follows:
My sister was visiting here from Cape Cod. She is going home
tomorrow, and we were at a bar tonight and had several drinks.
When we left there, she went with some of the people,
and I decided to walk home . This man who had been talking
to me—to us, said he’d walk home with me because it wasn’t
safe.
We walked a ways, came to the—this park and he . . .
just pushed me to the ground and had sex with me. I was afraid
to fight him . . . . He had seemed nice . . . . [W]hen he was

5
done, he jumped up and left, and I started walking and ran into
a police officer and they brought me here.

C.C. testified that on the night of March 1, 2000, she awoke on a hill in a park, felt
what she believed to be a penis slidi ng out of her vagina, and saw the back of a person
walking away from her. Her pants and underwear were “ a little above [her] knees” when
she woke. She felt terrible and was “wondering what happened. ” She flagged down a
police officer approximately two or three minutes after she woke and told the officer what
had just happened. C.C. testified that she went to the hospital that night. C.C. testified that
she had been drinking that evening and that she did not remember other details of the
incident. But she also testified that she did not consent to any sexual activity in the park
and that she had not engaged in any consensual sexual activity that evening.
The jury found Allen guilty as charged. The district court entered judgment of
conviction and sentenced Allen to serve 84 months in prison. The district court awarded
Allen 236 days of jail credit dating back to March 2015. Allen appeals, challenging his
conviction and the district court’s jail-credit award.
D E C I S I O N
I.
“‘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). “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of
a person, if it is intended by the person as an assertion.” Minn. R. Evid. 801(a). Hearsay

6
is inadmissible unless an exception to the hearsay rule applies. Minn. R. Evid. 802; State
v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).
“Evidentiary rulings rest within the sound discretion of the district court, and
[appellate courts] will not reverse an evidentiary ruling absent a clear abuse of discretion.”
State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). A district court abuses its discretion when
its “ruling is based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Bustos , 861 N.W.2d 655, 666 (Minn. 2015) (quotation omitted) . To
prevail on appeal, a party usually must show error and prejudic e resulting from that error.
State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). Accordingly, a district court’s ruling
on an evidentiary objection is reviewed for harmless error. State v. Matthews, 800 N.W.2d
629, 633 (Minn. 2011). A non constitutional error is harmless unless it “substantially
influenced the jury’s verdict.” State v. Morrow, 834 N.W.2d 715, 729 n.7 (Minn. 2013).
Allen contends that the district court abused its discretion by admitting C.C.’s out -
of-court statements to Officer Dunphy an d the SARS nurse. We address each contention
in turn.
C.C.’s Statements to Officer Dunphy
Allen contends that the district court abused its discretion by allowing Officer
Dunphy to testify re garding C.C.’s statements to hi m when he encountered her near the
location of the sexual assault. The district court overruled Allen’s objection to the
testimony, reasoning that C.C.’s statements to Officer Dunphy fell under the excited -
utterance exception to the hearsay rule.

7
The ex cited-utterance exception allows admission of a “statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Minn. R. Evid. 803(2). The rationale for the excited -
utterance exception “stems from the belief that the excitement caused by the event
eliminates the possibility of conscious fabrication, and insures the trustworthiness of the
statement.” State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).
The basic elements of an “excited utteranc e” under
Minn. R. Evid. 803(2) . . . are (a) that there be a startling event
or condition, (b) that the statement relates to the event or
condition, and (c) that the statement is made under the stress
caused by the event or condition . It is for the [district] court,
in the exercise of its discretion in making evidentiary rulings,
to determine whether the declarant was sufficiently under the
aura of excitement.

State v. Edwards , 485 N.W.2d 911, 914 (Minn. 1992) (quotati on and citation omitted).
“There are no strict temporal guidelines for admitting an excited utterance.” State v.
Martin, 614 N.W.2d 214, 223-24 (Minn. 2000) (quotation omitted).
Allen does not dispute that that the first two elements of the excited -utterance
exception were established at trial. But he argues that the excited-utterance exception did
not justify the admission of C.C.’s statements to Of ficer Dunphy because the state did not
establish that “C.C. was under the stress of excitement when she provided her statement to
law enforcement.” Specifically, he argues that it was not “enough for the State to establish
that C.C. was frantic when she initially flagged down law enforcement. Instead, the St ate
[had] to prove that C.C. remained frantic when she provided her statement. ” Allen
concludes that the state did not present such evidence.

8
Officer Dunphy testified that C.C. was “upset and frantic” when he encountered her.
Officer Dunphy also testified that C.C. said that she had been raped and that it had “just
happened.” That testimony reasonably suggests that C.C.’s statements to Officer Dunphy
occurred just after the sexual assault and that C.C. was under the stress of excitement from
the assault when she spoke to Officer Dunphy. Indeed, nothing in the record suggests that
there was any appreciable delay between Officer Dunphy’s initial encounter with C.C. and
C.C.’s description of the events that had caused her to be “upset and frantic.” Moreover,
the SARS nurse testified that C.C. was “angry, weeping, and afraid” when the nurse met
her at HCMC. That testimony suggests that C.C. continued to be under the stress of
excitement from the sexual assault when she met with the SARS nurse at HCMC.
On this record, there is no basis to conclude that the district court abused its
discretion by admitting C.C.’s statements to Officer Dunphy under the excited -utterance
exception to the hearsay rule.
C.C.’s Statements to the SARS Nurse

Allen contends that the district court “abused its discretion by allowing the treating
nurse to read from her notes that included C.C.’s out-of-court statements because the notes
and C.C.’s statements were inadmissible hearsay.”
“Hearsay included within hearsay is not excluded under the hearsay rule if each part
of the combined statements conforms with an exception to the hearsay rule . . . .” Minn.
R. Evid. 805. In a pretrial ruling, t he district court denied Allen’s motion to exclude
evidence contained in the SARS nurse’s written notes as hearsay, reasoning that the notes
fit “within the medical diagnosis hearsay exception because [they were] made for the

9
purpose of reaching a medical diagnosis and providing treatment, which includes
describing a medical history.” The district court further reasoned that, based on the state’s
proffer, it was clear that C.C. “knew she was speaking to . . . medical personnel and . . .
was there in the hospital for medical reasons.” When ruling on Allen’s motion, the district
court did not distinguish between C.C.’s statements to the SARS nurse and the SARS
nurse’s notes regarding C.C.’s statements.
The medical-diagnosis exception allows for the admission of “[s]tatements made
for purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Minn.
R. Evid. 803(4). The rationale behind the medical-diagnosis exception is “the patient’s
belief that accuracy is essential to effective treatment.” State v. Robinson , 718 N.W.2d
400, 404 (Minn. 2006) (quotation omitted). “This special assurance of reliability also
applies to statements concerning the cause of the condition.” Id. (quotation omitted).
Allen argues that the SARS nurse’s notes do not fall under the medi cal-diagnosis
hearsay exception because the “notes are [the SARS nurse’s] statements —not C.C.’s.”
Allen relies on nonprecedential authority in support of that argument, and we are not aware
of any precedential authority supporting it. However, we need not decide whether the
district court erred by relying solely on the medical -diagnosis exception so long as the
SARS nurse’s notes were properly read at trial. See id. at 410 (concluding that because
out-of-court statements to nurses were admissible under the residual exception, district
court’s error in admitting them under medical-diagnosis exception was harmless); see also

10
State v. Fellegy , 819 N.W.2d 700, 707 (Minn. App. 2012) (“We may affirm the district
court on any ground, including one not relied on by the district court.”), review denied
(Minn. Oct. 16, 2012).
The recorded-recollection exception allows for the admission of
[a] memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in
the witness’ memory and to reflect that knowledge correctly.
If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless
offered by an adverse party.

Minn. R. Evid. 803(5).
The SARS nurse’s notes described statements that C.C. had made during a sexual-
assault exam that had occurred approximately 18 years before the trial in this case . The
SARS nurse’s testimony establishe d that she took th ose notes contemporaneously with
C.C.’s sexual-assault exam and that they accurately reflected what C.C. told her during the
exam. In addition, the record shows that the SARS nurse had insufficient recollection to
testify fully and accurately. For example, the SARS nurse testified that she examined C.C.
18 years earlier, at “about the end of [her] career as a SARS” nurse, and she needed to look
at her report regarding C.C.’s sexual-assault exam multiple times to refresh her recollection
regarding that exam. Lastly, the SARS nurse read her notes aloud; the written notes were
not received as an exhibit. Under the circumstances, the SARS nurse’s notes were properly
read to the jury under the recorded-recollection exception to the hearsay rule.

11
Allen also argues that the statements in C.C.’s first -person narrative account
regarding the sexual assault, which were read aloud by the SARS nurse at trial, “were not
related to any treatment or diagnosis of C.C. and were therefore not admissible under the
medical diagnosis hearsay exception.” (Emphasis omitted.)
C.C.’s statements to the SARS nurse that a man pushed her to the ground at the park
and had sex with her, that she was afraid to fight him, and that he jumped up and left when
he was done described “the inception or general character of the cause or external source”
of C.C.’s present need for treatment and were “ reasonably pertinent to diagnosis or
treatment.” See Minn. R. Evid. 803(4). Other statements in C.C.’s narrative account—that
she had been at a bar drinking with her sister, that a man said he would walk home with
her, that the man had “seemed nice,” and that she ran into a police officer after the assault—
are not proba tive regarding why C.C. needed treatment. But those statements neither
alleged nonconsensual sexual conduct nor provided a physical description of the alleged
perpetrator. For those reasons, they did not incriminate Allen and their admission was
harmless. See State v. Sanders , 775 N.W.2d 8 83, 888 (Minn. 2009) (concluding that
admission of evidence was harmless in part because evidence was not incriminating). In
sum, even if the district court erred by allowing the SARS nurse to read all of C.C.’s
statements in the nurse’s notes, the error was harmless.
II.
Allen contends that the “district court erred by denying [him] custody credit for the
time he spent in custody [on other offenses] after the state had matched his DNA to the
alleged crime on July 31, 2013.”

12
A criminal defendant is entitled to jail credit for time “spent in custody in connection
with the offense or behavioral incident.” Minn. R. Crim. P. 27.03, subd. 4(B). “The
defendant bears the burden of establishing entitlement to credit for time spent i n custody
during criminal proceedings.” State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008). “A
district court’s decision whether to award credit is a mixed question of fact and law; the
court must determine the circumstances of the custody the defendant seeks credit for, and
then apply the rules to those circu mstances.” Id. Appellate courts review the factual
findings underlying jail-credit determinations for clear error, but review questions of law
de novo. State v. Clarkin , 817 N.W.2d 678, 687 (Minn. 2012); see also Johnson , 744
N.W.2d at 379 (“The decision to award custody credit is not discretionary with the district
court.”).
A defendant may receive jail credit for time spent in custody on another offense
before being charged with the offense of conviction. Clarkin, 817 N.W.2d at 689 -90. In
which case, jail credit is appropriate for
time spent in custody after the date when (1) the State has
completed its investigation in a manner that does not suggest
manipulation by the State, and (2) the State has probable cause
and sufficient evidence to prosecu te its case against the
defendant with a reasonable likelihood of actually convicting
the defendant of the offense for which he is charged.

Id. at 689.
Prior to the sentencing hearing, Allen requested jail credit from “the date that his
DNA was matched to the DNA taken from the victim (7/31/13), which would be 578 days.”
At the sentencing hearing, defense counsel noted the original request for “jail credit to be

13
given as far back as 2013” and stated that jail credit dating back to 2013 was Allen’s first
request. Defense counsel then stated, “However, I think that the more solid credit date
supported by the Clarkin Rule would have to be March of 2015, because that is when the
state had all of the evidence they needed to produce the charges.” The state argued that the
district court should award Allen jail credit dating from “2015 . . . at the earliest, and then
perhaps even 2017,” when Sergeant Wente was “able to get [Allen] into custody.”
The district court awarded jail credit back to March 2015, for an award of 236 days.
The district court thoroughly explained its rationale as follows,
I’m aware that the standard really is whether or not a
prosecution is viable, but . . . by awarding credit back to the
time when prosecution is viable, I agree with [defense counsel]
that it’s to prevent the manipulation of the charging decision to
prejudice the defendant. And, here . . . I accept the notion that
the state needed a confirmatory DNA [match] and therefore did
a buccal swab and they didn’t get it until 20 17. And I . . . get
why they didn’t get it until 2017, but they started looking for it
in 2015, and . . . malfeasance in the . . . police department where
people were not matched up to the jail’s records is certainly not
[Allen’s] fault, and I don’t know if [the] state could manipulate
the time filing by that, so that’s why I went back to 2015. I
considered going back to 2013 because I can’t see any reason
why . . . there was a two -year delay between the [ DNA
database] match and notice of the match at which time they
could have been working on finding [Allen] —and he was in
custody during that period, from 2013 to 2015 —but decided
against it, using the middle date instead.

Allen argues that the district court erred by not awarding him jail credit dating back
to 2013 because “[t]he State’s investigation was complete at that point, charges could have
been filed, and an arrest warrant could have been sought .” He argues that “[t]he State’s
failure to charge [him] on July 31st” can “only be seen as the State’s failure, and a potential

14
manipulation by the State to wait until [he] was out of custody to file the charge against
him.”
Trial testimony regarding the investigation timeline, which Allen does not appear
to dispute, explains why the state did not ch arge Allen in 2013. Former Sergeant Jane
Emberly of the Minneapolis Police Department testified that she closed the case regarding
the March 1, 2000 sexual assault because C.C. had not responded to multiple police
contacts. A former forensic scientist fo r the crime laboratory testified that in 2013, the
laboratory notified the Minneapolis Police Department of the DNA match between the
male profile obtained from C.C.’s vaginal swabs and the DNA profile in the DNA
computer database for Allen. Sergeant Went e testified that the case was assigned to him
in 2015 and that he contacted C.C. and began looking for Allen.
Allen points out that “the prosecutor agreed at the sentencing hearing that the State
could not explain why the case was not pursued in 2013.” The district court similarly stated
that it is unclear why there was a two-year gap between notification of the DNA match and
investigation of the case by Sergeant Wente. But the manipulation concern in jail -credit
cases is based on intentional charging delays by the prosecut ion, and not investigation
delays by the police. See, e.g., Clarkin, 817 N.W.2d at 689-90 (noting that the Clarkin test
“benefits defendants by reducing the possibility of manipulation by the State when it makes
charging determinations” and finding “no evidence of prosecutorial manipulation”
(emphasis added)).
For example, i n State v. Folley , the prosecutor intentionally delayed charging the
defendant with criminal sexual conduct until he was released from custody on a driving

15
while impaired (DWI) charge. 438 N.W.2d 372, 374 (Minn. 1989) . There was evidence
in the record that the investigation of the criminal -sexual-conduct charges was completed
before the defendant was arrested for the DWI and that the police told him, one or two days
after his arrest, that he would be charged with sex crimes. Id. at 374-75. The defendant
did not post bail, was acquitted of the DWI charge, and the state charged him with criminal
sexual conduct before he could be released after his ac quittal. Id. at 374. Based on the
prosecutor’s actions, the supreme court concluded that the defendant should have been
given jail credit from the date of his arrest for the DWI charge. Id. at 374-75.
Allen argues that the state’s investigation was c omplete when it received the DNA
match in 2013 because there was probable cause to charge him at the time. But the
triggering event under the Clarkin test is not just probable cause to charge, it is “ probable
cause and sufficient evidence to prosecute [the] case against the defendant with a
reasonable likelihood of actually convicting the defendant of the offense for which he is
charged.” 817 N.W.2d at 689 (emphasis added). The test is intended to discourage the
state from “charg[ing] defendants at a point in time earlier than when that charging decision
is appropriate or can be justified.” Id. In 2013, the police had not communicated with C.C.
regarding the allegations in over a decade and had not attempted to locate Allen. Thus, the
state did not have sufficient evidence to prosecute the case against Allen with a reasonable
likelihood of obtaining a conviction.
Allen had the burden of establishing entitlement to jail credit dating back to 2013 ,
including any alleged prosecutorial manipulation of the state’s charging decision. Allen
recognizes that the prosecutor did not know why there was a two -year delay in the

16
investigation of this case following the DNA match. And he does not point to any evidence
in the record indicating that the prosecutor intentionally delayed charging to extend Allen’s
imprisonment or that the prosecutor even knew that he was in custody at the relevant time.
In sum, the record does not show prosecutorial manipulation of the charging decision or
that the state had sufficient evidence to prosecute Allen with a reasonable likelihood of
obtaining a conviction in 2013. The district court therefore did not err by refusing to award
Allen jail credit dating back to July 31, 2013.
Affirmed.