State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0784

State of Minnesota,
Respondent,

vs.

Wayne Garrett Lee Rosebear,
Appellant.

Filed May 3, 2021
Affirmed
Bjorkman, Judge

St. Louis County District Court
File No. 69DU-CR-19-1980

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Bjorkman, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his convictions of second-degree criminal sexual conduct and
domestic assault by strangulation, arguing that the district court (1) violated his rights under

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the Confrontation Clause by admitting a body-camera recording of the police interviewing
the complainant at the scene, and (2) abused its discretion by admitting the complainant’s
statements to a doctor and nurse under the medical-treatment hearsay exception. We affirm.
FACTS
On June 4, 2019, R.M.’s upstairs neighbor called 911 to report that R.M. “just came
up here, she’s beat up, her baby dad did it and he’s downstairs and the kids are down . . .
stairs.” R.M. told the 911 dispatcher that she got into an argument with appellant Wayne
Rosebear and that he “started beating me up.” She said that Rosebear bit her, “beat [her]
all over,” choked her with a rope until she passed out, and digitally penetrated her. And
R.M. stated that Rosebear was still downstairs in the apartment with her six children.
Multiple police officers arrived at the scene, including Officer Patrick McCormick.
Officer McCormick initially made contact with R.M., but was unable to gather information
from her “due to her crying and emotional state.” He then went down to R.M.’s apartment
and, after checking on one of the children, found Rosebear sleeping in the basement.
Officer McCormick found a multi-strand rope near Rosebear.
While Officer McCormick was securing and arresting Rosebear, Officer Benjamin
Nordskog approached R.M., who was naked and wrapped only in a blanket. The encounter
that followed was recorded on his body camera. R.M. was visibly injured and upset .
Officer Nordskog asked her about her injuries and need for medical care. The two
discussed R.M.’s children and who was available to care for them while R.M. was at the
hospital. R.M. told the officer that Ro sebear bit, punched, kicked, and choked her twice
with a rope until she passed out. And she stated that Rosebear said he would kill her and

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“tried to stick his whole hand” into her vagina. When the officer suggested taking R.M. to
the ambulance, she responded that she did not have any clothes on and expressed concern
that Rosebear was “going to kill [her] and [her] kids.”
At the hospital, R.M. was treated by a doctor who noted significant bruising all over
R.M.’s body along with derogatory words and symbols written in marker. X-rays showed
three fractured ribs. R.M. told the doctor that she had been strangled with a rope.
R.M. was also examined by a sexual -assault nurse examiner. The nurse noted that
R.M. was “cryi ng and tearf ul,” and had bruises all over her body, bite marks on her left
hand and right shoulder, and a tear on her labia minora. Throughout the examination, R.M.
described how Rosebear hit her multiple times in the face and kicked and punched her in
the ribs. She also told the nurse that Rosebear used a rope to choke her until she lost
consciousness, and forced her legs apart and put his fingers in her vagina.
Rosebear was charged with two counts of first-degree criminal sexual conduct, two
counts of second -degree criminal sexual conduct, two counts of domestic assault by
strangulation, and one count of making threats of violence. Because R.M. was not
available to testify, the state moved in limine to introduce the body -camera recording.
Rosebear objected on the ground that it violated his right to confrontation under Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The district court determined that the
recording is nontestimonial—and thus , admissible—because the “officer’s primary
purpose” in conducting the interview was “to address the ongoing situation.” The district
court also admitted, over Rosebear’s objection, R.M.’s statements to the doctor and nurse
identifying Rosebear as her assailant.

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At trial, in addition to the witness testimony, t he state introduced the 911 call,
photographs depicting R.M.’s injuries, and the rope found near where Rosebear had been
sleeping. And the state introduced DNA evidence that implicated Rosebear. Specifically,
Rosebear could not be excluded as contributing t o the DNA taken from R.M.’s left breast
and the bite mark on her left hand, while 99.9 % of the world’s population could be
excluded.
The jury found Rosebear not guilty of both first -degree criminal -sexual-conduct
charges, and one of the domestic-assault-by-strangulation charges. But the jury found
Rosebear guilty of both second -degree criminal -sexual-conduct charges, one domestic-
assault-by-strangulation charge, and the threats-of-violence charge. Rosebear appeals.
DECISION
I. Admission of the body -camera recording did not violate Rosebear’s right to
confrontation.

The Confrontation Clause provides a criminal defendant the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI ; see Minn. Const. art. I, § 6; see
also State v. Hull , 788 N.W.2d 91, 100 (Minn. 2010) (“We apply an identical analysis
under both the state and federal Confrontation Clauses.”). Admission of an out -of-court
statement violates the Confrontation Clause when “the statement in question was
testimonial, the sta tement was admitted for the truth of the matter asserted, and the
defendant was unable to cross -examine the declarant.” Andersen v. State, 830 N.W.2d 1,
9 (Minn. 2013) (citing Crawford, 541 U.S. at 5 9 & n.9, 124 S. Ct. at 136 9 & n.9 ). We
review de novo whether the admission of evidence violates the Confrontation Clause. State

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v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006). A violation does not require reversal if
the error is harmless beyond a reasonable doubt. Id. at 314.
In determi ning whether a s tatement given to a police officer is testimonial, we
consider the primary purpose of the interrogation. State v. Wright, 726 N.W.2d 464, 472
(Minn. 2007). When the “primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution,” the statement is testimonial. Id.
(quotation omitted). Conversely, “[s]tatements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
Id. (quotation omitted). This is so if the police questioning “relate[s] directly to addressing
the emergency.” State v. Warsame, 735 N.W.2d 684, 694 (Minn. 2007).
In Davis v. Washington, the Supreme Court relied on four factors when concluding
that the victim’s statements were made to meet an ongoing emergency: (1) the victim
described events as th ey actually happened and not past events; (2) any “reasonable
listener” would conclude that the victim was facing an ongoing emergency; (3) the
questions asked and answers given were necessary to resolve a present emergency, rather
than only to learn what had happened in the past; and (4) there was a low level of formality
in the interview because the victim’s answers were frantic and her environment was not
tranquil or safe. 547 U.S. 813, 826-27, 126 S. Ct. 2266, 2276-77 (2006).
Lack of formality and the victim’s urgent need for medical care likewise guided the
Supreme Court’s determination in Michigan v. Bryant, that a shooting victim’s statements
related to an ongoing emergency. 562 U.S. 344, 349, 131 S. Ct. 1143, 1150 (2011). In

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that case, police responded to a report of a shooting and found the victim bleeding on the
ground. Id. During a five -to-ten-minute conversation, the victim gave police the
assailant’s name and told them when, where, and how he had been shot. Id. The victim
was then taken to the hospital where he died within hours. Id. The Supreme Court reasoned
that the informality of the interrogation and the potential threat the at-large assailant posed
to the victim, the police, and the general public objectively indicated that the “pr imary
purpose of the interrogation was to enable police assistance to meet an ongoing
emergency.” Id. at 375-78, 131 S. Ct. at 1165-67 (quotations omitted).
Rosebear contrasts Bryant and Davis, arguing that R.M.’s statements captured in
the body-camera recording are testimonial because he had been arrested by the time she
made the statements so there was “no ongoing emergency .” We disagree. Although the
record suggests that Rosebear was arrested just prior to or while Officer Nordskog
interviewed R.M., we are not persuaded that this fact alone makes R.M.’s statement
testimonial.
The overall circumstances demonstrate that the officer’s primary purpose for
questioning R.M. was to deal with an ongoing emergency. The body -camera recording
depicts a chaotic scene. When Officer Nordskog located R.M., he asked about her injuries
and need for medical treatment. He also asked about her children, including their status
and where they were located. Because R.M needed immediate medical care, the officer
also asked who was available to care for her children. These questions were directed at
ensuring the safety of R.M. and her children, and R.M.’s responses indicated an ongoing
fear of the situation.

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Moreover, the body-camera recording demonstrates that the interview was informal
and conducted at a time when R.M. was in physical and emotional distress . See Bryant,
562 U.S. at 377, 131 S. Ct. at 1166 (stating that the informality of the situation and
interrogation “suggests that the interrogators’ primary purpose was simply to address what
they perceived to be an ongoing emergency”). It took place in R.M.’s neighb or’s
apartment. R.M. was naked, wrapped only in a blanket, and seated on the stairs. She was
visibly upset and difficult to understand due to her physical pain and emotional state of
mind. See State v. Dye , 871 N.W.2d 916, 923 (Minn. App. 2015) (conclud ing that the
victim’s statements to officers were nontestimonial, in part, because the victim was “in
shock, crying, panicky, and appeared to be in significant pain”). And as in Bryant, the
interview was short, lasting only about eight minutes. R.M. occasionally told the officer
what Rosebear had done to her, but her descriptions of his actions were brief and mostly
unsolicited.
In sum, R.M.’s state of mind, the short, informal nature of the interview, and the
fluid situation involving an injured victim and the presence of her young children,
demonstrate that the primary purpose of the interrogation was to enable the officers to meet
an ongoing emergency. Because R.M.’s statements to the officer are not testimonial,
admission of the body-camera recording did not violate Rosebear’s constitutional right to
confrontation.
Even if we concluded that Rosebear’s right to confrontation was violated, any error
is harmless beyond a reasonable doubt. Although the recording was likely persuasive
evidence, and the prosecutor mentioned it during closing argument, the evidence of

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Rosebear’s guilt was overwhelming. The state introduced —without objection—the 911
call in which R.M. frantically reported that she was assaulted by Rosebear and sustained
injuries. In addition, the nurse examiner and physician both testified about R.M.’s
extensive injuries, which included a tear on her labia minora, fractured ribs, bite marks,
and significant bruising all over her body . The record contains multiple photog raphs
depicting these injuries and the derogatory markings on her buttocks, chest, and face. And
Rosebear’s DNA was found on one of R.M.’s breasts and on her left hand near a bite mark.
We also note that Rosebear did not contest the assault and threats -of-violence
charges; his defense strategy focused on whether the strangulation and sexual assault
occurred. As to those contested issues, t he body-camera evidence was cumulative. R.M.
told the 911 dispatcher the same thing she told Officer Nordskog—that Rosebear strangled
her with a rope and digitally penetrated her. Her injuries were consistent with her report,
including a tear in her labia minora, and petechiae in the sclera of her eyes and around her
neck.1 And the police located a rope near where they found Rosebear in the apartment.
Given the overwhelming evidence of guilt, and the cumulative nature of the body-camera
recording, any error in admitting the recording is harmless.
II. The district court did not abuse its discretion by a dmitting R.M.’s statements
to the treating doctor and nurse.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted,
and it is generally inadmissible. Minn. R. Evid. 801, 802. But rule 803(4) provides an
exception for statements that are “made for purposes of medical diagnosis or treatment and

1 Petechiae are small purple spots caused by capillaries bursting from excessive pressure.

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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 om itted).
We review evidentiary rulings for an abuse of discretion, reversing only if evidentiary error
prejudiced the appellant’s substantial rights. State v. Chavez-Nelson, 882 N.W.2d 579, 588
(Minn. 2016).
In Robinson, our supreme court considered the admissibility of the victim’s
statements to treating medical personnel identifying the father of her children as her
assailant. 718 N.W.2d at 402, 405. The supreme court declined to adopt a categorical rule
regarding the admissibility of such identification statements under the medical -diagnosis
exception. Id. at 405-07. Instead, the supreme court examined the record , noting that the
state did not present evidence —such as the assailant’s pattern of coercion or violence or
psychological abuse, the victim’s seeking treatment for emotional or psychological harm,
the nurses’ concern for the victim’s emotional or psychological well -being, or expert
medical testimony —suggesting that the identity of the assailant was relevant to the
diagnosis or treatment of the victim’s injury. Id. at 407. The supreme court held that
“where, as here, there is an insufficient evidentiary foundation to establish that the identity
of the person who caused an injury was reasonably pertinent to the med ical diagnosis or
treatment of that injury, the statement of identity is not admissible under Rule 803(4).” Id.

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Rosebear asserts that R.M.’s statements to the treating medical personnel
identifying him as the assailant are likewise inadmissible because they “were not pertinent
to R.M.’s treatment.” We disagree. Unlike Robinson, R.M.’s treating nurse testified that
her practice when treating assault victims is to ask who the assailant is in order “to provide
safe discharge planning fo r the patient.” As the nurse explained: “We wouldn’t want to
send [the victim] to a place that wouldn’t be safe for them. So if their assailant is someone
that they live with we want to make sure that we’re sending them and giving them the
opportunity to find a safe place f or them to go.” On this record, we discern no abuse of
discretion by the district court in admitting the nurse’s challenged testimony as pertinent
to R.M.’s treatment.
Finally, even if the district court abused its discretion by ad mitting the challenged
statements, any error is harmless. See Chavez-Nelson, 882 N.W.2d at 588 (stating that a
conviction will be reversed based on evidentiary error only if the appellant’s substantial
rights were prejudiced); see also State v. Matthews , 800 N.W.2d 629, 633 (Minn. 2011)
(stating that a district court’s ruling on an evidentiary objection is reviewed for harmless
error). As noted above, t he record contains ample evidence identifying Rosebear as the
assailant, including R.M.’s statements to the 911 dispatcher and the two police officers.
And the DNA evidence linked Rosebear , but not 99.9 % of the world’s population, to the
assault. On this record, Rosebear has not demonstrated that he is entitled to a new trial.
Affirmed.