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This opinion will be unpublished and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
A18-1509

State of Minnesota,
Respondent,

vs.

Sam James Lemieux,
Appellant.

Filed June 10, 2019
Affirmed
Connolly, Judge

St. Louis County District Court
File No. 69DU-CR-18-508

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Slieter, Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction of felony fifth-degree assault, arguing that the
district cour t erred when it admitted hearsay statements given by a victim to a 911
dispatcher in violation of the Confrontation Clause. Because the district court did not err
when it concluded that the statements were nontestimonial and qualified as an excited
utterance, we affirm.
FACTS
In February 2018, a witness saw a man and woman walking nea r a hospital in
Duluth. The pair was observed arguing and, at some point during the argument , the man
struck the woman several times in the face with his fist. The witness observed the woman,
later identified as C.R. (who appeared distraught), proceed to the hospital’s emergency
room as the man hurried away.
Once inside, C.R. called 911. C.R. told the dispatcher that her assailant was
appellant Sam James Lemie ux and provided information abou t his physical description,
potential location, and whether he was armed with any weapons ; she also described her
current medical condition. Multiple police officers responded to the call , and appellant
was located and arrested. The state charged appellant by a mended complaint with one
count of felony domestic assault and one count of felony fifth-degree assault. He pleaded
not guilty.
C.R. did not appear at trial, and the state sought to admit a recording of the 911 call
in her absence. Appellant filed a motion in limine to exclude the statements made by C.R.

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during the 911 call, arguing that this evidence would violate his constitutional right to
confront his accuser and that the statements in the call were inadmissible hearsay. The
district court determined that portions of the 911 call were admissible. The jury found
appellant guilty of both charges, and the district court imposed a sentence of 26 months in
prison only on the felony fifth-degree assault. Appellant challenges his conviction, arguing
that the district court erred when it determined that portions of the 911 call were not barred
by the Confrontation Clause or the hearsay rule.
D E C I S I O N
This court reviews evidentiary rulings, including a finding that a statement is
admissible under a hearsay e xception, for abuse of discretion. See State v. Griffin , 834
N.W.2d 688, 693 (Minn. 2013). Claims that the admission of evidence violated the
Confrontation Clause are subject to de novo review, and factual findings are reviewed for
clear error. State v. Lopez-Ramos, 913 N.W.2d 695, 701 (Minn. App. 2018) . “When the
error implicates a constitutional right, a new trial is required unless the State can show
beyond a reasonable doubt that the error was harmless.” State v. Sanders , 775 N.W.2d
883, 887 (Minn. 2009). “An error is harmless beyond a reasonable doubt if the jury ’s
verdict was surely unattributable to the error.” Id. But if an error does not implicate a
constitutional right, a new trial will not be granted unless the error substantially influenced
the jury’s verdict. Id.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

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confronted with the witnesses against him.” U.S. Const. amend. VI; see also Minn. Const.
art. I, § 6. If a statement is testimonial, it violates the Confr ontation C lause and is
inadmissible in a criminal trial, unless the declarant is unavailable and the defendant has
had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S.
36, 53-54, 124 S. Ct. 1354, 1365 (2004). If a stat ement is nontestimonial, it is not barred
by the Confrontation Clause. Davis v. Washington , 547 U.S. 813, 840, 126 S. Ct. 2266,
2284 (2006). The testimonial nature of statements is reviewed case-by-case. See e.g., State
v. Wright, 726 N.W.2d 464, 473-74 (Minn. 2007).
This court employs a “primary purpose” test when examining whether statements
made to 911 dispatchers are testimonial, focusing on whether statements in a 911 call were
made “under circumstances objectively indicating that the primary purpose . . . [was] to
enable police assistance to meet an ongoing emergency. Davis, 547 U.S. at 822, 126 S. Ct.
at 2273. If the primary purpose of the call was to enable police to meet an ongoing
emergency, the statements are nontestimonial. Id. But if the primary purpose of the
statements were made to prove past events, which may be relevant to a criminal
prosecution, then the statements are te stimonial. Id. at 2274. It is the state’s burden to
prove that a statement is not testimonial. Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013).
Appellant argues that the statements made to the 911 dispatcher were testimonial
because the statements described a completed event, there was not an ongoing emergency,
the call was made while C.R. was safely in the hospital, the assailant was not armed with
a weapon, and C.R. was calm during the call. Appellant’s argument is not persuasive.

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First, it is cle ar from the recording of the call that the questions asked and the
answers given were not directed at trying to prove past events. See Davis, 547 U.S. at 822,
126 S. Ct. at 2273-74. On the contrary, almost all the statements in the recording focused
on determining appellant’s current whereabouts, his current physical description, and
whether he was currently armed with a weapon, as well as C.R.’s current need for medical
treatment. Thus, the record establishes that the primary purpose of the statements was to
enable the police to aid an assault victim and to locate a potentially dangerous and at-large
suspect, not to prove past events.
Second, appellant argues that, even if the statements were not made for the primary
purpose of establishing past event s, they were still made absent an ongoing emergency
because C.R. was safe in the hospital and calm when she talked with the dispatcher. But
appellant’s assertion that C.R. was calm during the call is unsupported by the record and
by the district court’s fi ndings, which indicate that, while C.R. was at times calm during
the call, she was also agitated, frustrated and, often cursing. This finding is not clearly
erroneous. See Lopez -Ramos, 913 N.W.2d at 701. Moreover, “[t]he existence of an
ongoing emergency must be objectively assessed from the perspective of the parties . . . at
the time, not with the benefit of hindsight. Michigan v. Bryant, 562 U.S. 344, 361 n.8, 131
S. Ct. 1143, 1157 n.8 (2011) (emphasis added) . At the time of the call, the suspect’s
location was unknown and it was unclear what his intention was, whether he had a weapon,
and where he was headed. Consequently, at the time of the call there was an ongoing
emergency.

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The district court did not err when it concluded that the primary pur pose of the
statements in the 911 call was to enable the police to meet an ongoing emergency and were
therefore nontestimonial.
Excited Utterance
Appellant also objected to the introduction of the 911 call on the grounds that the
information in the call was hearsay not within any exception. The district court determined
that the statements we re admissible under the excited -utterance exception to the hearsay
rule. Minn. R. Evid. 803(2) provides that 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, is excluded by the hearsay rule.
To qualify as an excited utt erance, a declarant’s statement must satisfy three
requirements: “(1) there must be a startling event or condition; (2) the statement must relate
to the startling event or condition; and (3) the declarant must be under a sufficient aura of
excitement caused by the condition to ensure the trustworthiness of the statement.” State
v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986) (quotation omitted). It is within a district
court’s discretion to admit the evidence if the district court determines that “the declarant
was sufficiently under the aura of excitement” when the statement was made to insure that
it is trustworthy. State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (quotation omitted).
In considering these requirements, courts examine “the length of time elapsed, the nature
of the event, the physical condition of the declarant, [and] any possible motive to falsify.”
Daniels, 380 N.W.2d at 782-83 (quotation omitted).

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Consideration of these factors supports the district court’s determination to admit
C.R.’s statements in this case. First, C.R. made the call only a few minutes after the
incident. See, e.g., id. (statements made within one hour after fatal house fire admissible).
The subject of the call —a physical assault —is a startling event. C.R.’s physical and
emotional state —voice and pitch changes, frequent cursing, and a hurt face and
headache—also support the admission of the state ments. Finally, the circumstances
surrounding the statements tend to show trustworthiness. The district court determined
prior to trial that it had to “make a judgment call on the demeanor and e verything of the
. . . caller” and found that C.R. was still under the “impact of the startling event.” See
Griffin, 838 N.W.2d at 693 (evidentiary rulings are generally within the discretion of the
district court). Moreover, the record indicates that C.R. had outstanding warrants for her
arrest, which make it un likely that she would have contacted police falsely to report an
assault.
Consequently, the district court properly exercised its discretion when it admitted
the statements as excited utterances.
Affirmed.