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This opinion is nonprecedential except as provided by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
A22-0783

State of Minnesota,
Respondent,

vs.

Charles Thomas Ortley,
Appellant.

Filed May 15, 2023
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-20-14730

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

Mary F. Moriarty, 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 Gaïtas, Presiding Judge; Wheelock, Judge; and
Halbrooks, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his convictions for second-degree assault with a dangerous
weapon and illegal possession of a firearm, arguing that the district court violated his right
to confrontation by admitting testimony and body-worn-camera footage of nontestifying
witnesses’ out-of-court statements and further arguing that his firearm conviction was not
supported by sufficient evidence. We affirm.
FACTS
Respondent State of Minnesota charged appellant Charles Thomas Ortley with
second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222,
subd. 1 (2018), and illegal possession of a firearm in violation of Minn. Stat. § 624.713,
subd. 1(2) (2018). The state alleged that Ortley entered a home occupied by N.B. (the
victim) and shot him. The case proceeded to a jury trial.
At trial, the state called two of the officers who responded at the scene, a police
investigator, and the victim to testify. The state also introduced into evidence
body-worn-camera footage of the officers’ response to the shooting, surveillance-camera
footage, and 911-call transcripts. The officers’ testimony and body-worn-camera footage
contained statements made by two witnesses, K.B. and D.B., who are the victim’s relatives
and who did not testify at trial. The officers testified that K.B. and D.B. told them at the
scene that Ortley shot the victim—K.B. said Ortley was the shooter without being
prompted, and D.B. identified Ortley as the shooter in response to the officers’ questions.
The officers’ body-worn-camera footage corroborates this testimony, showing K.B. and
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D.B. volunteering information to the officers and identifying Ortley as the shooter
immediately upon the officers’ arrival at the scene. It also shows the officers asking
witnesses, including occupants of the home and neighbors, about the shooting and about
the location and identifying details of the victim and Ortley—both of whom had fled
shortly after the shooting occurred. Surveillance footage showed the shooter fleeing the
scene with a gun in his hand. It also showed the shooter exchanging gunfire with another
armed individual moments after the first shooting occurred.
Ortley moved the district court to exclude the statements made by K.B., D.B., and
any other witnesses identifying him as the shooter, alleging a violation of his Sixth
Amendment rights because the state did not intend to call those witnesses at trial and
instead planned to introduce the statements through the officers’ testimony and
body-worn-camera footage. The district court denied Ortley’s motion, and the statements
came into evidence without the testimony of the persons who made them. A jury found
Ortley guilty of both offenses.
Ortley appeals.
DECISION
I. The district court did not violate Ortley’s right to confrontation.

Ortley contends that statements identifying Ortley as the shooter captured by the
officers’ body-worn cameras and described via officer testimony at trial are testimonial and
that because the witnesses who made these statements did not testify at trial, the admission
of these statements violated his constitutiona l right to confrontation. The Confrontation
Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all
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criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. Subject
to exceptions, the Confrontation Clause bars the admission of prior testimonial statements
of an unavailable witness who was not previously subject to cross-examination. Crawford
v. Washington, 541 U.S. 36, 53-54 (2004). Whether the admission of evidence violates a
defendant’s rights under the Confrontation Clause is a question of law that we review de
novo. State v. Sutter, 959 N.W.2d 760, 764 (Minn. 2021).
The admissibility of a prior statement under the Confrontation Clause depends on
whether the statement is testimonial in nature. Davis v. Washington , 547 U.S. 813, 821
(2006). To determine whether a statement given to a police officer is testimonial in nature,
this court “objectively evaluate[s] the circumstances in which the encounter occurs and the
statements and actions of the parties.” Michigan v. Bryant, 562 U.S. 344, 359 (2011). A
statement is testimonial when the “primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution.” State v. Wright,
726 N.W.2d 464, 472 (Minn. 2007) (emphasis omitted) (quoting Davis, 547 U.S. at 822).
But “[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. (emphasis omitted) (quoting
Davis, 547 U.S. at 822). This is so if the police questioning “relate[s] directly to addressing
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the emergency.” State v. Warsame, 735 N.W.2d 684, 694 (Minn. 2007). A statement is
admissible as made during an ongoing emergency when
(1) the [person] described events as they actually happened and
not past events; (2) any “reasonable listener” would conclude
that the [person] 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 [person’s] answers were frantic
and [their] environment was not tranquil or safe.

Sutter, 959 N.W.2d at 767 (quoting Warsame, 735 N.W.2d at 690 ); see also Davis,
547 U.S. at 827 (analyzing these four factors in the context of statements made during a
911 call). We apply each factor to the circumstances present here to determine whether
the challenged statements identifying Ortley as the shooter were testimonial.
The first Warsame factor is whether the statements were made while the events were
happening. Here, the statements were made very shortly after the shooting—the first 911
call was placed at 11:49 p.m., immediately after the shooting occurred, and the officers
arrived at the scene at 11:53 p.m.—but not during the shooting. However, i nitial
statements received at the start of an investigation following a dangerous or violent incident
can be nontestimonial in nature. See Davis, 547 U.S. at 832 (“We have . . . observed of
domestic disputes that officers called to investigate need to know whom they are dealing
with in order to assess the situation, the threat to their own safety, and possible danger to
the potential victim. Such exigencies may often mean that initial inquiries produce
nontestimonial statements.” (quotation omitted)). This case involves the same type of
exigencies present during the officers’ initial contact with the speakers—specifically, the
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brevity of the time that had elapsed between the shooting and K.B.’s and D.B.’s first
statements to the officers and the dangerous and violent nature of the shooting—that the
United States Supreme Court contemplated in Davis. Id. at 826-32 . Thus, this factor
weighs in favor of a conclusion that the challenged statements were nontestimonial.
The second factor is whether a reasonable listener would conclude that the speaker
was facing an ongoing emergency. K.B. and D.B. made their statements to the officers
within minutes of the shooting. And following the victim being shot, a gunfight ensued
nearby between the shooter and a third party. K.B. and D.B. were in a panicked state when
the officers arrived and instantly began providing the officers with information about the
victim and shooter. In the body-worn-camera footage, when K.B. first yells that Ortley is
the shooter, she is upset and frantic. And when the officers interview D.B., she is crying
and very upset. They did not know where their injured relative, the victim, had gone or
how seriously he was injured, and they did not know where the shooter was. One of the
witnesses had been lying down in the same room with the victim when he was shot. Based
on these facts, a reasonable listener would conclude that K.B. and D.B. were facing an
ongoing emergency.
The shooter fleeing the scene does not change this analysis. See Warsame,
735 N.W.2d at 693-94. “[T]he necessity to assess the assailant and any threat to personal
safety is equally applicable when the police are pursuing [an] assailant outside of the
victim’s proximity.” Id. at 694. As we have noted, the shooter was still at large when the
challenged statements were made, and a second shooting had occurred moments earlier.
K.B. and D.B. faced an ongoing emergency stemming from their family member being
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shot and leaving the scene, possibly with life- threatening injuries, as well as fear for their
personal safety and for additional shootings based on the gunfire that was exchanged when
the shooter fled the scene without being apprehended. Because a reasonable listener would
conclude that the speakers made the statements during an ongoing emergency, this factor
favors a conclusion that the statements were nontestimonial.
The third factor is whether the questions asked and answers given were necessary
to resolve a present emergency. When the officers first arrived, the suspect was still at
large, the victim was missing and suffering from a gunshot wound, and more gunshots had
been fired nearby as the shooter fled the scene. The officers asked about the names, ages,
descriptions, and present locations of the victim and the shooter. These questions were
designed to assist the officers with identifying and locating the victim and the shooter to
administer aid, secure the firearm, and manage the scene for public safety. The shooter
was at large, was armed, and could still return; the victim needed medical attention; and it
was likely that the community remained in danger of additional gun violence. Given these
circumstances, it is evident that the officers were facing ongoing emergencies as well and
that the questions asked related to resolving those emergencies. Because the questions the
officers asked were ne cessary to help resolve the emergencies present when they arrived
at the scene, this factor favors a conclusion that the statements were nontestimonial.
The fourth factor is whether there was a low level of formality during the
questioning because the speaker’s answers were frantic or their environment was not
tranquil or safe. The body-worn-camera footage shows that the exchanges between K.B.,
D.B., and the officers exhibited a low level of formality. K.B., D.B., and others began
8
shouting information at the officers as soon as they realized the officers were present. The
witnesses continued to offer information as the officers walked through the home and
around the premises, assessing the scene. Ortley admits that the setting was informal and
chaotic, taking place in the residence where the shooting occurred, but argues that ,
eventually, the chaos subsided and the house was calm and controlled. However, most of
the statements identifying Ortley as the shooter occurred immediately after the officers
arrived and while the scene was still chaotic. The officers spoke with witnesses wherever
they could while simultaneously trying to control the flow of individuals moving through
the home and other people gathering outside of it. As Ortley acknowledges, the setting
was largely informal and favors a conclusion that the statements were nontestimonial.
Because all four Warsame factors establish that the statements identifying Ortley as the
shooter were made to the officers during an ongoing emergency, we conclude that the
statements are nontestimonial in nature.
Nevertheless, Ortley relies on Sutter to persuade us that the statements were
testimonial, arguing that Sutter is controlling and that there are similarities between that
case and this one. In Sutter, police detained the defendant hours after a handgun had been
reported stolen. 959 N.W.2d at 763. The defendant was later arrested for the theft. Id.
Law enforcement detained and questioned an associate of the defendant around the same
time it detained the defendant. Id. The associate provided inconsistent statements during
questioning, and the state intended to introduce those statements via body-worn-camera
footage shown at trial but not to call the associate to testify. Id. at 763-64. The supreme
court applied the Warsame factors and held that the statements were testimonial because
9
the associate was a potential co-conspirator and the theft did not implicate an ongoing
emergency. Id. at 767.
The facts in this case differ significantly from those in Sutter . Unlike in Sutter,
police questioned witnesses minutes after a shooting, not hours after a theft. The
challenged statements were made within 20 minutes of the shooting, at a time when the
locations of both the victim and the assailant were unknown. And the speakers of the
challenged statements were members of a household who had just suffered a home invasion
in which their relative was shot , not potential co-conspirators as in Sutter. Although a
stolen handgun poses some threat to public safety, it is not comparable to the threat posed
by an active shooter who has just engaged in two shootings in the same neighborhood. We
conclude that Ortley’s reliance on Sutter is misplaced and this case is distinguishable
because here the presence of an emergency is clear and the challenged statements were not
made by a potential co-conspirator.
Our review of the circumstances surrounding the encounter and the four Warsame
factors leads us to conclude that because the challenged statements identifying Ortley as
the shooter were made to the officers during an ongoing emergency, the statements were
nontestimonial in nature. Thus, the district court’s admission of the challenged statements
did not violate Ortley’s Sixth Amendment rights.
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II. Sufficient evidence support s Ortley’s conviction for illegal possession of a
firearm.

In a pro se supplemental brief, Ortley argues that the evidence was insufficient to
prove that he illegally possessed a firearm.1 We are not persuaded.
When a defendant challenges the sufficiency of the evidence supporting a
conviction, we “carefully examine the record to determine whether the facts and the
legitimate inferences drawn from them would permit the factfinder to reasonably conclude
that the defendant was guilty beyond a reasonable doubt of the offense of which he was
convicted.” State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted).
“The evidence must be viewed in the light most favorable to the verdict, and it must be
assumed that the fact- finder disbelieved any evidence that conflicted with the verdict. ”
State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016). This standard of review applies as
long as a conviction is adequately supported by direct evidence. State v. Horst ,
880 N.W.2d 24, 39 (Minn. 2016). “[D]irect evidence is evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption.”
State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted).
If the state uses circumstantial evidence to prove an element of the offense, we apply
a heightened standard of review to the evidence underlying that element. State v. Olson,
982 N.W.2d 491, 496 (Minn. App. 2022) (citing State v. Al-Naseer, 788 N.W.2d 469, 471

1 Ortley also argues in his pro se supplemental brief that the state’s failure to call
eyewitnesses, such as D.B. or K.B., to testify constituted prosecutorial misconduct. We
construe this argument as being the same argument raised in his principal brief that the
state violated his Sixth Amendment right to confront the witnesses, which we have already
addressed.
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(Minn. 2010)). Circumstantial evidence is “evidence from which the factfinder can infer
whether the facts in dispute existed or did not exist.” Harris, 895 N.W.2d at 599 (quotation
omitted). To prove the offense of possession of a firearm by an ineligible person, the state
must prove that a defendant knowingly possessed a firearm while prohibited by law from
doing so. Minn. Stat. § 624.713, subd. 1(2); Harris, 895 N.W.2d at 601. The state may
establish a violation of section 624.713 by proving either actual possession or constructive
possession of a firearm. Harris, 895 N.W.2d at 601. “Actual possession . . . involves
direct physical control” of an item. State v. Barker, 888 N.W.2d 348, 353 (Minn. App.
2016). However, “[t]he mere fact that an item is not in a defendant’s physical possession
at the time of apprehension does not preclude prosecution for actual possession.” Id. at
354.
The parties disagree as to what standard of review should apply; Ortley argues that
only circumstantial evidence supported his conviction, while the state argues that direct
evidence supported the conviction. The challenged element is whether Ortley possessed a
firearm. The state established this element through multiple evidentiary sources:
surveillance footage depicting a man fitting Ortley’s description holding and using a
firearm, body-worn-camera footage containing statements from eyewitnesses that Ortley
had shot someone, and a 911 call reporting the same. Because these sources supply the
type of evidence that does not require additional inferences or presumptions, we apply the
direct-evidence standard of review.
The direct evidence the state presented shows that Ortley had actual, not
constructive, possession of a firearm. Although Ortley did not have actual possession of
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the firearm at the time of his arrest, the officers testified that witnesses told them that Ortley
had shot someone, an act that is necessarily dependent on Ortley possessing a firearm. The
surveillance footage also depicts the shooter—who, witnesses testified, resembled
Ortley—climbing a fence while holding a firearm before immediately discharging the
weapon during a second shooting. Ortley does not argue that the eyewitness testimony and
video evidence inaccurately establish him as the shooter. Viewing this evidence in the
light most favorable to the verdict, see Griffin, 887 N.W.2d at 263, we conclude that the
direct evidence the state presented established that Ortley illegally possessed a firearm.
Affirmed.