State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-1530

Court of Appeals Anderson, J.

State of Minnesota,

Respondent,

vs. Filed: April 15, 2020
Office of Appellate Courts
Brian Ven Vangrevenhof,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney , Jennifer D. Plante , Senior Assistant County
Attorney, Rochester, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan , Assistant
Public Defender, Saint Paul, Minnesota, for appellant.
________________________

S Y L L A B U S
The district court did not abuse its discretion by admitting out-of-court statements
under Minnesota Rule of Evidence 807, the residual exception to hearsay.
Affirmed.

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O P I N I O N
ANDERSON, Justice.
Appellant Brian Ven Vangrevenhof was convicted of first -degree sale of a
controlled substance and second-degree possession of a controlled substance. The charges
were based on a transaction in which Vangrevenhof sold approximately one ounce of
methamphetamine to L.P. Although l aw enforcement observed the meeting between
Vangrevenhof and L.P., they did not observe the actual exchange of drugs or money. After
the meeting, law enforcement arrested L.P. and Vangrevenhof and found approximately
one ounce of methamphetamine on L.P. and $791 on Vangrevenhof. After her arrest, L.P.
made several statements, during a recorded interview with law enforcement, regarding her
meeting with Vangrevenhof and the drug transaction . During Vangrevenhof’s jury trial,
the State sought to introduce L.P.’s statements under Minn. R. Evid. 807, the residual
hearsay exception, and the district court admitted the statements into evidence . The jury
found Vangrevenhof guilty on both counts , and t he court of appeals affirmed his
convictions. We granted Vangrevenhof’s petition for review on the issue of whether the
district court abused its discretion by admitting L.P.’s statements under Minn. R. Evid. 807.
Because w e hold that the district court did not abuse its discretion by admitting L.P.’s
statements under the residual hearsay exception, we affirm the court of appeals.
FACTS
In November 2017, law enforcement received a tip that Vangrevenhof would be
meeting with L.P. at his personal storage unit. At the time, L.P. was the subject of an active
felony arrest warrant. While conducting surveillance of the storage unit , a narcotics
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investigator observed Vangrevenhof and L.P. talk for approximately 5 minutes but did not
observe an exchange of drugs or money. After the meeting, law enforcement arrested
Vangrevenhof near the storage unit and searched him. On his person they found keys to
the storage unit, $791 in cash , and a small butane torch that can be used to light a
methamphetamine pipe. The cash found on Vangrevenhof was in the form of four $100
bills, several $20 bills, and some smaller denominations.
Law enforcement subsequently obtained a warrant to search Vangrevenhof’s
storage unit. During the search, officers found a digital scale with methamphetamine
residue on it, a tool chest containing small plastic bags, and two glass containers with
methamphetamine residue.
Following the meeting, law enforcement also arrested L.P. at a nearby restaurant.
When asked whether she had drugs in her purse, L.P. admitted that she had “white stuff.”
When law enforcement searched L.P.’s purse, they found a plastic bag containing several
other plastic bags, a digital scale with methamphetamine residu e on it, and a plastic
container holding approximately one ounce of methamphetamine, along with another small
bag containing a smaller amount of methamphetamine. L.P. also had $163 in cash and a
phone in her purse. During their search, law enforcement observed that L.P. was visibly
sweating; when they inquired, L.P. responded that she had consumed drugs “a minute ago.”
In a recorded interview following her arrest, one law enforcement investigator
implied, without promising, that he would ask for leniency for L.P. if she cooperated and
explained what happened during her meeting with Vangrevenhof. When the investigator
asked who she was meeting at the storage unit, L.P. responded, “Brian [Vangrevenhof]”
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and confirmed that Vangrevenhof gave her the methamphetamine that was found in her
purse. L.P. also confirmed that she had purchased methamphetamine from Vangrevenhof
two or three times in the past. L.P. also stated that she paid “$700” to buy the ounce of
methamphetamine from Vangrevenhof. When she was asked how she paid Vangrevenhof,
she responded, “four $100 bills” along with smaller bills.
L.P. was charged with first -degree possession of a controlled substance . Before
pleading guilty, L.P. wrote a letter to Vangrevenhof’s attorney and claimed that, during her
law enforcement interview, the investigator pressured her into incriminating
Vangrevenhof. L.P. also asserted that she had been “severely intoxicated” with “an
astronomical amount of methamphetamine” in her system and her statements to the
investigator were “not accurate.”
Before Vangrevenhof’s trial, the State provided notice that it would introduce the
statements L.P. made during the interview as substantive evidence under the residual
hearsay clause, Rule 807 of the Minnesota Rules of Evidence. Vangrevenhof moved the
district court to preclude any testimony regarding L.P.’s statements to investigators. At a
pretrial hearing, the court heard arguments on the motion. In opposition to the motion, the
State argued that L.P.’s statements to the investigator related to a material fact because
those statements implicated Vangrevenhof in the sale of methamphetamine . These
statements were also more probative than other evidence because the State anticipated that
L.P. would recant and testify that Vangrevenhof did not sell her methamphetamine. The
State argued that the hearsay statements were against L.P.’s penal interest as they were an
admission of her crime. The State also argued that the statements were consistent with
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other evidence, in particular, that L.P.’s statements about the currency denominations she
used to purchase the methamphetamine aligned with the denominations found in
Vangrevenhof’s possession . In support of his motion, Vangrevenhof argued that the
recording was difficult to hear, that the questions were leading, that L.P. was intoxicated,
and that L.P. was looking to “pass the buck” to somebody else.
After hearing arguments, the district court ruled that L.P.’s statements to the
investigator were admissible as substantive evidence under Rule 807. The court found that
the State gave proper notice and the existence of a sale between L.P. and Vangrevenhof
was a material fact. Based on its review of the audio recording, the court stated that while
there was some suggestive questioning, other questioning was not suggestive. The court
noted, in particular, that when L.P. was asked , “So who were you to see a t the storage
units?”, L.P. responded, “Brian [Vangrevenhof].” The court found other evidence that was
consistent with her statements, specifically , that law enforcement observed L.P. and
Vangrevenhof at the storage unit and that there was similarity in monetary denominations,
as argued by the State. The court also stated that it did not “note any obvious impairment
by [L.P.]” The court found the statements to be against her penal interest. Finally, the
court noted that in her recantation, L.P. did not deny making the original statements.
Accordingly, the court allowed L.P.’s statements to the investigator to be admitted.
L.P. testified at trial, recanting her statements to the investigator and testifying that,
although she did smok e methamphetamine in the storage unit, she did not purchase any
methamphetamine from Vangrevenhof. L.P. testified that the ounce of methamphetamine
that she had in her purse was purchased earlier in the day from someone other than
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Vangrevenhof. The State called the investigator who interviewed L.P. He testified
regarding the interview and L.P.’s recorded statements, which were introduced as
substantive evidence.
The jury found Vangrevenhof guilty of both charges. The district court sentenced
him to 107 months for first-degree sale of a controlled substance under Minn. Stat.
§ 152.021, subd. 1(1) (2018).
Vangrevenhof appealed on several grounds . The court of appeals affirmed his
convictions. State v. Vangrevenhof, No. A18-1530, 2019 WL 3293788, at *1 (Minn. App.
July 22, 2019). We granted Vangrevenhof’s petition for review on the issue of whether
the district court abused its discretion by admitting L.P.’s statements during the law
enforcement interview under Minn. R. Evid. 807, the residual exception to hearsay.
ANALYSIS
Vangrevenhof argues that the district court’s decision to admit L.P.’s recorded
statements to the law enforcement investigator under Rule 807 was an abuse of discretion
because (1) L.P.’s statements lacked circumstantial guar antees of trustworthiness and
(2) the district court failed to make all of the necessary findings required by the rule .
Vangrevenhof asserts that a new trial is warranted because the err oneous admission of
L.P.’s statements was prejudicial to him during the jury trial. We review a district court’s
evidentiary ruling on hearsay for an abuse of discretion. Holt v. State, 772 N.W.2d 470,
483 (Minn. 2009). “A district court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” State v. Guzman,
892 N.W.2d 801, 810 (Minn. 2017). “A defendant claiming error in the district court ’s
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reception of evidence has the burden of showing both the error and the prejudice resulting
from the error.” State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
Hearsay is defined as “a statement, other than one made by the declarant whil e
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 801. The use of hearsay evidence generally is prohibited during
a trial unless one of several exceptions applies. Minn. R. Evid. 802. Rule 807 is the
residual exception, otherwise known as a “catchall .” State v. DeRosier, 695 N.W.2d 97,
105 (Minn. 2005); see also Minn. R. Evid. 807. Rule 807 permits the admission of hearsay
“not specifically covered by Rule[s] 803 or 804 but having equivalent circumstantia l
guarantees of trustworthiness.” Minn. R. Evid. 807.
A.
When deciding whether to admit hearsay evidence under Rule 807 , the first
consideration is whether the proffered statement has circumstantial guarantees of
trustworthiness. State v. Hallmark , 927 N.W.2d 281, 292 (Minn. 2019) . Historically,
district courts have relied on our decision in State v. Ortlepp, which established four factors
that, when present, contribute to the trustworthiness of a statement.1 Id. at 293 (citing State
v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985)). We have stated—and reiterate here—that

1 The four Ortlepp factors that, when present, contribute to the trustworthiness of a
statement are (1) there is no Confrontation Clause issue because the declarant testifies,
admits to making the prior statement, and is available for cross-examination by the defense
counsel; (2) the statement is recorded, removing any real dispute about what the declar ant
said; (3) the statement is against the declarant’s penal interest; and (4) the statement is
consistent with the State’s other evidence that “point [s] strongly toward” the defendant’s
guilt. Id.
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the four Ortlepp factors are not the only relevant factors to consider but merely represent
“ ‘an application of the totality of the circumstances approach to satisfy the equivalent
circumstantial guarantees of trustworthiness element of ’ the residual hearsay exception. ”
Id. (quoting State v. Robinson , 718 N.W.2d 400, 40 9 (Minn. 2006) ). Other relevant
circumstances include, but are not limited to, the extent to which the statement w as made
voluntarily; whether the statement was made under oath and subject to cross -examination
under penalty of perjury; the declarant’s relationships to the parties in the litigation; “the
declarant’s motivation to make the statement”; “the declarant’s personal knowledge” of the
statement; whether the declarant recanted the statement; “the existence of corroborating
evidence”; and “the character of the declarant for truthfulness and honesty.” State v. Davis,
820 N.W.2d 525, 537 (Minn. 2012).
Hallmark, our most recent opinion addressing Rule 807 , sets out examples of
circumstances that weaken the trustworthiness of a statement. 927 N.W.2d at 293.
Examples include whether the declarant has a strong motivation to deceive or implicate
others, whether there was “an extended gap in time between the event and the statement
being made, ” whether the declarant lacked first -hand knowledge of the statement , and
whether the declarant made the statement in exchange for a reward. Id.
A district court must balance the totality of the circumstances surrounding the
statement at the time it was made, and we encourage district courts to consider all relevant
factors. Id. at 292. If a district court fails to consider all relevant circumstances under Rule
807, however, it is “not automatically an abuse of discretion.” Id. at 294. When a district
court fails to consider “any other relevant factors bearing on trustworthiness,” we
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independently evaluate whether the statement at issue is admissible under Rule 807. Id.
(citation omitted).
A review of the record here shows that the district court balanced all of the relevant
factors related to circumstantial guarantees of trustworthiness, including the Ortlepp
factors. Specifically, the district court found:
(1) Some of the investigator’s questions were leading or suggestive, but
the interview was not “entirely leading or suggestive”;
(2) L.P. was not obviously impaired, although the recording was difficult
to hear clearly;
(3) the statement was against L.P.’s penal interest; and
(4) L.P. was available for cross-examination at trial.

Regardless, Vangrevenhof asserts that the district court err ed by admitting L.P.’s
statements because the statements did not have circumstantial guarantees of
trustworthiness for four reasons.
First, Vangrevenhof argues that the hearsay statements were made when L.P. was
impaired, which weighs against trustworthiness. Vangrevenhof acknowledges that the
conversation was recorded, which weighs in favor of admitting the evidence, but arg ues
that many parts of the interview are difficult to hear on the recording. But a review of the
recording of the law enforcement interview confirms the district court’s findings that
although L.P. is difficult to hear at times, she does not appear to be impaired. For much of
the interview, although L.P. is hesitant and responds only by short affirmations, when L.P.
speaks, her speech is clear. The district court heard the arguments, reviewed the recording,
and concluded that no obvious signs of L.P.’s impairment were present. In our view, the
court’s finding was not an abuse of discretion, and we see no reason to disturb it.
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Second, Vangrevenhof argues that L.P. was coerced into making the statements ,
which weighs against trustworthiness. In a letter sent to Vangrevenhof’s attorney , L.P.
asked that her statements not be used at trial because she was pressured into making them
by the law enforcement investigator. The district court listened to the recording, weighed
the arguments, and found that while parts of the interview were leading or suggestive, other
parts were not . The district court specifically noted the open-ended question, “So who
were you to see at the storage units?” to which L.P. responded, “Brian,” as an example of
a question that was not suggestive . The district court also noted that , although the law
enforcement investigator suggested different dollar amounts for the transaction in an
attempt to entice L.P. to respond to his question, in response to an open-ended question of
what denominations she used to pay Vangrevenhof for the methamphetamine, L.P.
independently responded, “four $100 bills.” The district court found this particular
statement to be trustworthy because it was corroborated by evidence that four $100 bills
were found on Vangrevenhof when he was searched by law enforcement after his arrest.
Our review of the interview reveals that the law enforcement investigator took a
measured and calm tone with L.P., did not threaten L.P., and informed her multiple times
that she did not need to answer any of his questions. We see no reason to disturb the district
court’s finding that L.P. was not coerced during the interview.
Third, Vangrevenhof argue d that L.P. had a motive to fabricate statements by
“pass[ing] the buck” to another person because law enforcement found an ounce of
methamphetamine on her person. The district court concluded that this argument was not
persuasive because L.P.’s statements were against her penal interests rather than an attempt
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to “pass the buck.” L.P. knew, early on, the nature of the charges against her. During the
interview, she admitted, through an adoptive admission in response to the law enforcement
investigator’s question, that she went to the storage unit to purchase methamphetamine
from Vangrevenhof. Specifically, the investigator asked: “Now, I’ll just stop beating
around the bush, all right? Obviously you went there to buy the o unce from Brian, all
right? You probably paid him, like you said, $700.” L.P. agreed with the statement. After
a series of questions, the law enforcement investigator ask ed L.P. about the cash
denominations she used to pay Vangrevenhof for the methamphetamine. Rather than deny
that she purchased the methamphetamine, L.P. responded: “I think it was four $100 bills.”
We agree with the district court that this statement does not suggest that L.P. was trying to
“pass the buck” or otherwise fabricate a lie to avoid being incriminated. A statement
adverse to penal interests is another factor that Hallmark discussed as contributing to
trustworthiness. 927 N.W.2d at 292–93 (quoting Ortlepp, 363 N.W.2d at 44).
Finally, Vangrevenhof argues that L.P.’s subsequent recantation is more trustworthy
than her previous statements to law enforcement because, among other things, she had no
motive to falsely recant. At the pretrial hearing, Vangrevenhof argue d that L.P.’s
subsequent recantation lessens the trustworthiness of her statements because “[t]here is no
reason for [L.P.] to recant other than she has sobered up and realized what she had done.”
We have acknowledged that a recantation may lessen the trustworthiness of a statement.
Id. at 293. Factors to be used when assessing the trustworthiness of a recanted statement
include whether “other uncontroverted evidence discredits the recantation,” whether there
is “a motive to falsely recant,” whether there is an inconsistency in the recanted version of
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the statement itself, and whether the prior hearsay statements are strongly corroborated.
Id. (citation omitted) (internal quotation marks omitted). But these factors are not
dispositive. Rather, they should be balanced against other fact ors as part of a totality of
the circumstances analysis. Id. at 296.
L.P.’s recantation occurred after a friend of Vangrevenhof wrote her a letter that
suggested that Vangrevenhof wanted to repair his rela tionship with her . Here, the
trustworthiness factors are likely neutral, some weighing toward trustworthiness, others
weighing against it. L.P.’s statement that she paid Vangrevenhof with four $100 bills is
strongly corroborated by the fact that four $100 bills were found on Vangrevenhof after he
was arrested. The recantation by L.P. came only after Vangrevenhof’s friend urged her to
recant. L.P. had a prior intimate relationship with Vangrevenhof, which could give her
motive to falsely recant, and the letter suggested reconciliation as one reason to recant. The
district court remarked that in her letter to Vangrevenhof’s attorney, L.P. did not actually
deny that she had purchased drugs from Vangrevenhof. Ultimately, we cannot say that the
district court abused its discretion by deciding that L.P.’s subsequent recantation did n ot
render her statements untrustworthy and therefore inadmissible under Rule 807.
In conclusion, we find no abuse of discretion because the district court properly
balanced all of the relevant circumstances of trustworthiness and the decision accords with
our case law. Therefore, L.P.’s statements to law enforcement were properly admitted into
evidence under Rule 807.

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B.
Vangrevenhof also claims that the district court failed to make all of the findings
necessary to admit a statement under Rule 807. The requirements of Rule 807 are that
(1) “the statement is offered as evidence of a material fact ,” (2) “the statement is more
probative on the point for which it is offered than any other evidence” procurable “through
reasonable efforts” by the proponent , and (3) the general purpose behind the Minnesota
Rules of Evidence and the interests of justice are served by the admission of the statement
into evidence. Minn. R. Evid. 807.
The district court discussed the enumerated requirements of Rule 807 before
admitting L.P.’s statements into evidence under the rule. Although the court made explicit
findings regarding the first two enumerated requireme nts of the rule, it did not make an
explicit finding regarding the third requirement of the rule . We have said that a district
court should make findings regarding the enumerated requirements “on the record unless
there is a waiver, explicitly or by silence, or the basis of the ruling is obvious.” DeRosier,
695 N.W.2d at 105 –06 (citations omitted) (internal quotation marks omitted). But the
failure to make an explicit finding does not automatically require a reversal of a conviction
and a new trial . See id. at 106 (upholding a conviction even though explicit finding s
regarding the enumerated requirements were not made). Instead, when a district court fails
to make explicit findings under Rule 807, we will independently evaluate the record.
As mentioned above, t he district court explicitly made findings on the first two
enumerated requirements of Rule 807: whether the fact is material and whether the fact is
more probative of the fact to be established than other evidence that can be procured. The
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parties do not dispute that the district court made explicit findings regarding these two
requirements. For the third requirement of the rule , we hold that the admission of L.P.’s
statements was in accordance with the general purpose of the rules, which is to “ secure
fairness and ‘to promote the growth and development of the law of evidence to the end that
the truth may be ascertained and proceedings justly determined.’ ” Hallmark, 927 N.W.2d
at 294 ( quoting State v. Aubid , 591 N.W.2d 472, 479 (Minn. 1999) ). L.P.’s statements
provide the only first -person account from someone involved in the sale of the
methamphetamine by Vangrevenhof. Letting the jury hear the statements allowed it to
ascertain truth by weighing the relative credibility between L.P.’s unswor n, recorded
statements and L.P.’s sworn testimony during trial, which recanted those recorded
statements. Admission of the statements serves the purpose of the rule along with the
interests of justice.
Accordingly, we hold that the district court did not abuse its discretion by admitting
L.P.’s statements under Rule 807 because admission of the statement s satisfied the
enumerated requirements of the rule.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.