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This opinion is nonprecedential except as provided by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
A22-0960

State of Minnesota,
Respondent,

vs.

John Ishmael Bradley, III,
Appellant.

Filed April 17, 2023
Affirmed
Slieter, Judge

St. Louis County District Court
File No. 69VI-CR-22-57

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

Kimberly J. Maki, St. Louis County Attorney, Aaron P. Welch, Assistant County Attorney,
Virginia, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges his convictions of second-degree assault and felony domestic
assault, arguing that he did not use a broomstick in a manner likely to cause great bodily
harm and evidence was erroneously admitted. Additionally, appellant argues that felony
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domestic assault is an included crime of second-degree assault and, therefore, entry of
judgment of conviction for that offense should be reversed. Because the evidence indicates
that appellant used the broomstick as a dangerous weapon, evidence was not erroneously
admitted, and felony domestic assault is not an included offense of second-degree assault,
we affirm.
FACTS
Respondent State of Minnesota charged appellant John Ishmael Bradley III with
second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2020), and felony
domestic assault, in violation of Minn. Stat. § 609.2242, subd. 4 (2020). The following
facts derive from Bradley’s trial.
On January 13, 2022, a Virginia police officer responded to a call reporting that
Bradley had hit the victim on the head with a wooden broomstick. The officer found the
victim bleeding from the head in the hallway outside her apartment. The officer escorted
the victim to a waiting ambulance, which took her to the hospital.
At the hospital, the victim received medical care and was interviewed by the officer.
The interview was recorded on the officer’s body-worn camera, and, in the interview, the
victim described the assault and indicated that Bradley had hit her on the head with a
broomstick. The next day, the officer located and arrested Bradley.
During trial, the responding officer testified, and the district court admitted without
objection body-worn-camera footage of the officer’s hospital interview with the victim.
Through another officer, the district court admitted, over objection, text messages and a
phone call between Bradley and the victim while Bradley was in custody. The victim also
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testified that her memory of the day of the assault was “kind of fuzzy” and, although she
remembered being hit in the head, she did not remember who hit her.
The jury found Bradley guilty on both counts. The district court convicted Bradley
on both counts but sentenced him on the second-degree assault count. Bradley appeals.
DECISION
I. The evidence is sufficient to support the jury’s finding that Bradley used the
broomstick as a dangerous weapon.

Second-degree assault occurs when a person “assaults another with a dangerous
weapon.” Minn. Stat. § 609.222, subd. 1. Minnesota law defines “dangerous weapon,” as
relevant here, as a “device or instrumentality that, in the manner it is used or intended to
be used, is calculated or likely to produce death or great bodily harm.” Minn. Stat.
§ 609.02, subd. 6 (2022). “Likely” means the manner of using the object is “known to be
capable of producing” the harm. State v. Abdus-Salam, ___ N.W.2d ___, ___No.
A22-1551, 2023 WL 2747202, at *4 (Minn. App. Apr. 3, 2023) (quotation omitted).
“Some things that are not ordinarily thought of as dangerous weapons become dangerous
weapons if so used.” State v. Weyaus, 836 N.W.2d 579, 585 (Minn. App. 2013) (quoting
State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983)), rev. denied (Minn. Nov. 12, 2013).
And the supreme court has noted that its cases “dealing with the definition of ‘dangerous
weapon’ . . . illustrate the expansive interpretation [it is] inclined to give the statute.”
LaMere v. State, 278 N.W.2d 552, 555 (Minn. 1979) (concluding that an inoperable firearm
fell within the definition of “dangerous weapon”); see also State v. Upton, 306 N.W.2d
117, 117-18 (Minn. 1981) (pool cue); State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980)
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(cowboy boots); State v. Born, 159 N.W.2d 283, 283-85 (Minn. 1968) (fists and feet).
Whether an object was used as a dangerous weapon depends on “not only the nature of the
object itself, but also the manner in which it was used.” Weyaus, 836 N.W.2d at 585
(quoting State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997)).
Bradley argues that the evidence presented was insufficient to support the jury’s
finding that he used the broomstick in a manner calculated or likely to produce great bodily
harm.
“When evaluating the sufficiency of the evidence, appellate courts carefully
examine the record to determine whether the facts and the legitimate inferences drawn from
them would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Griffin, 887 N.W.2d
257, 263 (Minn. 2016) (quotation omitted). The reviewing court views the evidence in the
light most favorable to the verdict, assumes the fact-finder disbelieved any evidence which
conflicted with the verdict, and will not overturn the verdict if a reasonable jury could have
found the defendant guilty. Id.
The jury heard the victim’s video-recorded statements made at the hospital that
Bradley was “pointing [the broomstick] at” her and being “aggressive,” and saw a text
message in which the victim stated that she “looked in [Bradley’s] eyes when [he] swung.”
The blow opened a six-centimeter wound on the victim’s head, which requir ed seven
stiches to close. From these facts, a reasonable jury could conclude that Bradley
deliberately swung the wooden broomstick at the victim’s head, a particularly vulnerable
part of the body, with significant force. See State v. Coauette, 601 N.W.2d 443, 448 (Minn.
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App. 1999) (noting that, although reckless discharge of a paintball gun was insufficient to
prove it was used as a dangerous weapon, aiming at someone’s face would provide “some
basis to treat the paintball gun as a dangerous weapon ‘in t he manner it is used’”), rev.
denied (Minn. Dec. 14, 1999). Thus, viewed in the light most favorable to the verdict, the
evidence was sufficient for the jury to conclude that Bradley used the broomstick as a
dangerous weapon.
II. Evidence was not erroneously admitted.
Bradley argues that the district court abused its discretion by admitting the
objected-to text messages and phone call, and plainly erred by admitting the unobjected-to
recording of the victim’s hospital interview.
“Evidentiary rulings rest within the sound discretion of the district court, and we
will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855
N.W.2d 235, 249 (Minn. 2014); State v. Vue, 606 N.W.2d 719, 721 (Minn. App. 2000),
rev. denied (Minn. May 16, 2000). “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. Vangrevenhof, 941 N.W.2d 730, 736 (Minn. 2020) (quotation omitted). “[A]n
appellant who alleges an error in the admission of evidence that does not implicate a
constitutional right must prove that there is a reasonable possibility that the wrongfully
admitted evidence significantly affected the verdict.” State v. Peltier, 874 N.W.2d 792,
802 (Minn. 2016).
“Failure to object to the admission of evidence generally constitutes a waiver of the
right to appeal on that basis.” State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008). But
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appellate courts may consider an unobjected-to error if it was plain and affected the
defendant’s substantial rights. Id. An error affects the defendant’s substantial rights if it
“had the effect of depriving the defendant of a fair trial.” Id. (quotation omitted).
Bradley argues that the hospital intervie w, text messages, and phone call present a
Dexter problem because they were admissible only as impeachment evidence. See State v.
Dexter, 269 N.W.2d 721, 722 (Minn. 1978) (noting risk that jury will misuse, as
substantive evidence, otherwise inadmissible prior inconsistent statement introduced to
impeach witness who signified intent to testify in favor of defendant). We disagree.
As a threshold matter, the parties do not argue whether Dexter appropriately applies
to the situation here, when the victim does not appear to have retracted her prior statement
nor signified an intent to testify in Bradley’s favor. Instead, she claimed during trial an
inability to recall much of the incident. However, the applicability of Dexter does not
matter because evidence does not present a Dexter problem if it is admissible as substantive
evidence. State v. Ortlepp, 363 N.W.2d 39, 43-44 (Minn. 1985). Therefore, we analyze
whether the hospital interview, text messages, and phone call were admissible pursuant to
rule 807, the residual exception to the hearsay rule. See id. (analyzing admissibility of
purported Dexter evidence pursuant to the residual exception); see also State v. Morales,
788 N.W.2d 737, 758-60 (Minn. 2010).
Rule 807 allows the admission of otherwise inadmissible hearsay statements “not
specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of
trustworthiness.” Minn. R. Evid. 807; Vangrevenhof, 941 N.W.2d at 736. Analyzing
hearsay statements for admissibility pursuant to rule 807 is a two-step process. State v.
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Hallmark, 927 N.W.2d 281, 292 (Minn. 2019). First, the totality of the circumstances
surrounding the statement must show “circumstantial guarantees of trustworthiness.” Id.
(quotation omitted). Second, the statement must meet the three requirements set forth in
rule 807. Id. at 293.
Whether a statement has circumstantial guarantees of trustworthiness depends on
the totality of the circumstances. Vangrevenhof, 941 N.W.2d at 736. Historically, district
courts have relied primarily on the four factors set forth in Ortlepp. Id. The four Ortlepp
factors are: (1) whether there is a Confrontation Clause issue, (2) whether “the statement
is recorded, removing any real dispute about what the declarant said,” (3) whether “the
statement is against the declarant’s penal interest,” and (4) whether the statement is
consistent with other evidence which points strongly toward guilt. Id. at 736 n.1 (outlining
Ortlepp factors).
Other relevant factors include whether the statement was made voluntarily; whether
it was made under oath and subject to cross- examination; the declarant’s motivation for
making the statement, personal knowledge, and relationship to the parties in the litigation;
whether the declarant recanted; whether there is corroborating evidence; and the
declarant’s reputation for honesty. Id. at 736. The trustworthiness of a statement may be
undermined if the declarant “has a strong motivation to deceive or implicate others,” lacked
first-hand knowledge of the subject of the statement, made the statement in exchange for a
reward, or “there was an extended gap in time between the event and the statement being
made.” Id. at 736-37.
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Considering the first three Ortlepp factors and two of the other relevant factors, we
conclude that the totality of the circumstances demonstrate that the victim’s statements
were trustworthy. As to the first Ortlepp factor, the victim testified at trial and, although
she testified that she could not remember key facts, she was available for
cross-examination, thus avoiding a Confrontation Clause concern. Concerns addressed by
the second Ortlepp factor are alleviated because all three statements were recorded. Our
court has held that statements not directly against the declarant’s penal interest may still
satisfy the third Ortlepp factor “if the declarant is hostile to the state and supportive of the
defendant.” State v. Plantin, 682 N.W.2d 653, 659 (Minn. App. 2004), rev. denied (Minn.
Sept. 29, 2004). The third Ortlepp factor is satisfied because the district court allowed the
prosecutor to address the victim as hostile, and the victim’s failure to call the police herself
when she was assaulted and her continued unwillingness to cooperate with the police
indicate that she was supportive of Bradley. Thus, the first three Ortlepp factors indicate
trustworthiness.
Additionally, the victim had personal knowledge of the assault and made the
statements in the hospital interview, text messages, and phone call voluntarily. The victim
did not recant the statements, though she later claimed not to remember the assault or
statements she made about it. Thus, the statements show “circumstantial guarantees of
trustworthiness.” Hallmark, 927 N.W.2d at 292 (quotation omitted).
We now consider the second step: the rule 807 analysis. Id. at 293. Rule 807
requires that the statement (1) “is offered as evidence of a material fact,” (2) “is more
probative on the point for which it is offered than any other evidence which the proponent
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can procure through reasonable efforts,” and (3) will serve the interests of justice and
general purpose of the rules of evidence if admitted. Minn. R. Evid. 807; Hallmark, 927
N.W.2d at 293-94. These requirements are also satisfied.
All three statements were offered as proof that Bradley struck the victim, which is
a material fact. The victim’s statements are the most probative evidence of her assailant’s
identity that could be acquired through reasonable means because she was the only person
who witnessed the assault but, at trial, she could not clearly remember the incident. Finally,
admitting the voluntary statements serves the interests of justice and purpose of the
evidentiary rules by ascertaining the truth and promoting a just determination. See
Hallmark, 927 N.W.2d at 297.
In sum, the district court was within its discretion by admitting the text messages
and phone call, and it was not plain error to admit the hospital statement.
1
III. Felony domestic assault is not an included offense of second-degree assault.
Minnesota law provides that “the actor may be convicted of either the crime charged
or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2022). An “included
offense” can be a “a lesser degree of the same crime,” id. at (1), which encompasses a crime
of “a lesser degree of a multi-tier statutory scheme dealing with a particular subject.” State
v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995). Whether a crime constitutes an included

1 Bradley also argues that he was prejudiced by statements the officer made regarding her
training about “power and control dynamics” in relationships involving domestic abuse.
However, the officer made no reference to the facts of this case. And even if the statements
were inappropriate, they do not warrant reversal because there is not a reasonable
probability, in light of the state’s admissible substantive evidence, that the officer’s
statements significantly affected the jury. See Peltier, 874 N.W.2d at 802.
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offense is a question of law, which appellate courts review de novo. State v. Cox, 820
N.W.2d 540, 552 (Minn. 2012).
Bradley argues that felony domestic assault is an included offense of second-degree
assault because it is part of the same multi-tiered statutory scheme. Our court has
previously held that misdemeanor domestic assault is not an included offense of second-
degree assault. State v. Nyagwoka, 894 N.W.2d 174, 176-77 (Minn. App. 2017). As we
stated in Nyagwoka, “ [t]he legislature has created a multi-tiered statutory scheme that
assigns assault to one of five degrees. But the legislature did not include domestic assault
in this multi-tiered scheme. Rather, domestic assault is addressed in a separate statutory
scheme that does not assign any offense degrees.” Id. (citations omitted); see also Minn.
Stat. §§ 609.221-.2231, .224, .2242 (2022). It matters not that Bradley’s conviction for
domestic assault is a felony rather than a misdemeanor. Therefore, for the same reasons
we explained in Nyagwoka, his domestic-assault conviction is not an included offense of
second-degree assault.2
Affirmed.

2 In a pro se supplemental brief, Bradley argues that he was denied a fair trial because none
of the prospective jurors were Black, as Bradley is, and the state failed to disclose
exculpatory evidence involving body-worn-camera footage. Neither argument is
persuasive. Bradley presented no evidence of the demographic composition of St. Louis
County residents who are eligible for jury duty, which is necessary to sustain a claim that
the jury does not reflect a fair cross-section of the community. State v. Griffin, 846 N.W.2d
93, 99 (Minn. App. 2014) (quotation omitted), rev. denied (Minn. Aug. 5, 2014). Bradley
and his attorne y viewed the undisclosed video but decided not to present it to the jury.
Bradley has not shown that the undisclosed evidence was exculpatory, the prosecutor
suppressed it, or its absence prejudiced him, all three of which are required to show a
violation of his right to exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83
(1963). Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017).