State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by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
A21-0755

State of Minnesota,
Appellant,

vs.

Mark Bradley Zontelli,
Respondent.

Filed December 13, 2021
Reversed and remanded
Worke, Judge

Crow Wing County District Court
File No. 18-CR-19-658

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

Donald F. Ryan, Crow Wing County Attorney, Janine L. LePage, Assistant County
Attorney, Brainerd, Minnesota (for appellant)

Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presid ing Judge; Florey, Judge; and Smith, John,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
WORKE, Judge
The state challenges the district court’s pretrial ruling that statements that the child
complainant made to a forensic interviewer were inadmissible at trial. We reverse and
remand.
FACTS
On August 11, 2018, J.P. called the polic e to report that her neighbor, respondent
Mark Bradley Zontelli, had sexually assaulted her four-year-old daughter, M.P.
On August 17, a nurse practitioner (nurse) trained in conducting forensic interviews
interviewed M.P. at the Family Advocacy Center (FAC). The nurse asked M.P. to tell her
why M.P. came to talk to her. M.P. replied: “[Zontelli] just licked my private parts.” The
nurse asked where M.P. was when Zontelli did that. M.P. replied: “He was just putting me
on his bed. Then he licked my private parts.” M.P. stated that she was wearing shorts at
the time and that Zontelli licked her under her clothes. The following exchange occurred:
NURSE: Okay. How were your clothes when [Zontelli] licked
your private parts?
M.P.: He just opened it.
NURSE: Okay.
M.P.: Then he licked it.
NURSE: He opened it and then he licked it? Okay.
M.P.: That’s bad.
NURSE: Okay. How did that ma ke your private parts feel
when he did that?
M.P.: Like that bad.
NURSE: It made it feel that bad?
M.P.: (Nods head up and down.)
NURSE: Okay. What part of [Zontelli]’s body did he use to
lick your private parts?
M.P.: His tongue.
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NURSE: His tongue? Okay. Did [Zontelli] use any other part
of his body --
M.P.: No.
NURSE: -- on your body?
M.P.: No. He only used his tongue.

Appellant State of Minnesota charged Z ontelli with first-degree criminal sexual
conduct—penetration with a person under 13 ye ars of age and the ac tor is more than 36
months older than the compla inant, and second-d egree criminal sexual conduct—sexual
contact with a person under 13 years of age a nd the actor is more than 36 months older
than the complainant. See Minn. Stat. §§ 609.342, subd. 1a, .343, subd. 1a (2018).
In his pretrial motions, Zontelli moved to , among other things, exclude M.P.’s out-
of-court statements and her testimony because she had reported to prosecutors that she no
longer had a memory of the alleged incident. At a pretrial hearing, the district court
examined M.P. to determine whether she was competent to testify. After questioning M.P.,
the district court stated that M.P. was competent to testify, but “[w]hether or not she has
recollection issues is a completely different issue.”
Because Zontelli had moved to exclude M. P.’s prior out-of-court statements, J.P.
and the nurse testified at the pretrial hearing about M.P.’s statements to them. J.P. testified
that in August 2018, she and her family lived in an upstairs apartment and Zontelli lived in
the downstairs apartment. Th eir families went to church t ogether, and M.P. would visit
Zontelli about once a week. In the morning of August 11, M.P. went downstairs for
approximately one-half hour. She then returned home and acted like he r “normal self.”
Shortly after noon, M.P. told J.P. that “w hen she was downstairs that morning that
[Zontelli] licked her private parts.” J.P. asked M.P. if she was sure, and M.P. replied, “Yes,
4
mom. He really did. He put me on his bed, and he licked my private parts.” J.P. asked
M.P. if Zontelli had taken her clothes off. M.P. stated, “No.” The nurse testified about the
FAC interview and the recorded interview was received into evidence.
The district court ruled that M.P.’s statem ents made to J.P. were admissible. But
her statements made during the FAC interview were inadmissible because, while M.P. was
expected to testify, she was essentially “unavailable” to testif y because she had no
recollection of the incident. The district court determined that the FAC interview was
testimonial because it was produced with the “primary” purpose of generating evidence for
prosecution. The district court made this determination because the “team” at the FAC
includes law enforcement who watched the in terview as it occurred, and the interview
occurred shortly after M.P.’s initial disclosure. The district court also determined that the
FAC interview was not admissible under the residual hearsay exception because J.P.’s
testimony essentially about the same thing was admissible. This appeal followed.
DECISION
The state challenges the district court’s pr etrial ruling that the FAC interview was
inadmissible. In a state’s pr etrial appeal of the district court’s suppression order, an
appellate court will reverse if the state can “c learly and unequivocally show both that the
[district] court’s order will have a critical impact on the state’s ability to prosecute the
defendant successfully and that the order constituted error.” State v. Zanter, 535 N.W.2d
624, 630 (Minn. 1995) (quotation omitted).

5
Critical impact
“We view critical impact as a threshold i ssue and will not review a pretrial order
absent such a showing.” State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017) (quotation
omitted). The state can satisfy the critical-i mpact standard if “t he suppression of the
evidence significantly reduces the likelihood of a succ essful prosecution.” In re Welfare
of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).
“[W]hen a young child is found incompeten t to testify and is thus unavailable the
suppression of the child’s statements descri bing the alleged sexual abuse reduces the
likelihood of a successful prosecution a nd meets the critical impact test.” Id. Here, the
district court determined that M.P. was unavailable to testify. But the district court did not
suppress all of M.P.’s statements because it ru led that J.P.’s testimony was admissible.
However, as the state argues, without the FA C interview, it “has no ability to prove the
allegations in count one of the complaint.”1
Count one alleges that Zontelli committed first-degree criminal sexual conduct,
which requires proof of penetration. See Minn. Stat. § 609.342, s ubd. 1 (stating that “[a]
person who engages in sexual penetration with another person is guilty of criminal sexual
conduct in the first degree”). “Sexual pe netration” means, among other things,
“cunnilingus.” Minn. Stat. § 609 .341, subd. 12(1) (2018). M. P. told J.P. that Zontelli
“licked her private parts.” But she told J.P. that Zontelli had not removed her clothes.

1 Zontelli conceded this issue, but we conduct an analysis because the state bears the burden
of proof on this threshold issue, and we must decide cases according to the law, even if the
parties agree. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).
6
During the FAC interview, M.P. stated that she was wearing shorts and that Zontelli
“opened it” and “[t]hen he licked it,” under he r clothes with his tongue. Without these
details that Zontelli “opened” M.P.’s shorts and licked he r under her clothes with his
tongue, the state’s likelihood of proving the sexual-penetra tion element of count one is
“significantly reduce[d].” See L.E.P., 594 N.W.2d at 168. Thus, the state has established
critical impact, and we will determine whether the district court’s order constituted error.
Admissibility of out-of-court statements made during FAC interview
“When reviewing pretrial orders on motions to suppress evidence, we independently
review the facts and determine, as a matter of law, whether th e district court erred in its
ruling.” State v. Bourke , 718 N.W.2d 922, 927 (Minn. 20 06). We review the district
court’s factual findings for clear error a nd its legal determinations de novo. State v.
Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
Confrontation Clause
Hearsay is an out-of-court statement o ffered “to prove the truth of the matter
asserted.” Minn. R. Evid. 8 01(c). Hearsay is generally inadmissible unless an exception
applies. Minn. R. Evid. 802. “In criminal cases, offering hearsay statements against the
accused from declarants who do not testify and are not subject to cross-examination, may
implicate the constitutional right to confronta tion.” Minn. R. Evid. 807 cmt. Whether
hearsay evidence violates a defendant’s rights under the Confrontation Clause is a question
of law reviewed de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. Const. amend VI; accord. Minn. Const. art. 1,
7
§ 6. The Confrontation Clau se bars from admission testimoni al out-of-court statements
when the accused is not affo rded an opportunity to cross-examine the declarant. State v.
Bobadilla, 709 N.W.2d 243, 249 (Minn. 2006). Statements made to nongovernment
questioners, who are “not acting in concert with or as an agent of the government,” are
nontestimonial. State v. Scacchetti , 711 N.W.2d 508, 514-15 (Minn. 2006); but see
Bobadilla v. Carlson, 575 F.3d 785, 791-93 (8th Cir. 2009) (concluding that statements by
child victim in interview by social worker as part of police investigation were testimonial).
The state conceded that M.P.’s statemen ts made during the FAC interview were
testimonial but asserts that the statements are admissible because M.P. is available for
cross-examination. “[T]he admission of a w itness’s prior statements does not violate the
Confrontation Clause where the witness appears for cross-examination and claims that he
or she cannot remember either making the statements or the content of the statements.”
State v. Holliday, 745 N.W.2d 556, 565 (Minn. 2008). The supreme court stated that the
determination as to admission focuses on “presence and ability” to respond to cross-
examination, rather than on a showing as to what the decl arant will actually state. Id.
(quotation omitted).
Here, the district court stat ed as much when, after ques tioning M.P., it stated that
M.P. was competent to testify, but “[w]hether or not she has recollection issues is a
completely different issue.” There is no dispute that M.P. is planning to testify. Thus, she
will be present and subject to cross-examin ation, and there is no violation of the
Confrontation Clause. The district court erred in concluding that M.P.’s statements made
8
during the FAC interview were inadmissi ble because admission would violate the
Confrontation Clause.
Residual hearsay exception
The district court also ruled that M.P.’s statements made during the FAC interview
were inadmissible and that no hearsay exception permitted admissibility. The state argues
that M.P.’s out-of-court stat ements are admissible under th e residual exception to the
hearsay rule.
Statements not covered under a specifi c hearsay-exception rule may still be
admissible under the residual exception. Minn . R. Evid. 807. Statements that have
guarantees of trustworthiness are not excluded by the hearsay rule if the district court
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 e fforts; and (C) the general
purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.
Id.
The district court determined that M.P.’s statements made during the FAC interview
met the “threshold of trustworthiness” and were offered as evidence of a material fact, but
the final two requirements were not met. The district court stated that the FAC interview
was not the most probative evidence that the state could procure because M.P.’s disclosure
“of what allegedly occurred is not unobtainable by the state as [J.P.’s testimony] alleging
much of the same facts is immediately availabl e to [the state].” The district court also
determined that if the FAC interview was ad mitted, the general purpose of the rules of
9
evidence and the interests of justice would not be served because the purpose of the hearsay
exceptions is to allow for the admission of “v ital information” that would otherwise be
impossible for the factfinder to consider. The district court determined: “A clear avenue
exists within the law for the [s]tate to enter their evidence and the [c]ourt’s ruling that only
one [J.P.’s testimony] of the two are admi ssible by no means make s the case for the
evidence to be admissible under the residual exception.”
As we determined in our critical-impact analysis, the most pr obative evidence in
establishing the penetration element of count one in the complaint is M.P.’s statements
made during the FAC interview. Although M.P. disclosed much of the same information
to J.P., the extra details that she provided duri ng the FAC intervie w are likely the only
evidence showing that Zontelli penetrated M.P. And, as the district court noted, the
purpose of the hearsay exception s is to allow the factfinder to be presented with “vital
information” that it generally would not hear. Thus, the pu rposes of the rules and the
interests of justice would be served by admission of the evidence. The district court erred
in suppressing the statements that M.P. made during the FAC interview. We reverse and
remand for further proceedings.
Reversed and remanded.