Olmsted County District Court File No. 55-CR-11-8649
The opinion of the court was delivered by: Hudson, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Kirk, Judge.
UNPUBLISHED OPINION HUDSON, Judge
Appellant challenges his conviction of gross-misdemeanor domestic assault, arguing that (1) the district court abused its discretion by admitting statements contained in a 9-1-1 call, (2) the evidence was insufficient to support his conviction, and (3) the district court committed reversible error by failing to issue written findings of fact. We affirm.
The state charged appellant Lee Anthony Holmes with gross-misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 2 (2010), as a result of an incident occurring between appellant and J.M., with whom he had a romantic relationship. After appellant waived his right to a jury trial, the district court conducted a bench trial.
J.M. testified that she and appellant were sitting in a car at a SuperAmerica gas station in Rochester while she was talking on her cell phone with a friend, G.B. She testified that after she and appellant argued about the radio volume, appellant started yelling at her and grabbed the phone, scratching her face, then threw the phone to the middle of the car. She testified that during the incident, she was "both mad and scared" and was afraid because appellant had physically assaulted her two or three times previously. She testified that she believed that appellant grabbed the phone intentionally, but did not scratch her intentionally. She testified that she then called G.B. back, G.B. asked her if she wanted the police called, and she said that she did.
J.M. and appellant went into a bank, where she had to conduct business, and she went to the restroom to clean the scratch on her face. After a bank employee asked if she needed help, she went into the manager's office and told the manager that things were not all right, and the police were coming. J.M. testified that she wanted the police called because she was afraid that it would get "to the point of where there was hitting involved."
The state introduced relationship evidence of three previous incidents between appellant and J.M. In those incidents, respectively, appellant head-butted J.M. in her mouth; grabbed her chest, leaving a bruise; and hit her with a chair, leaving visible injuries. J.M. testified that at the time of the charged incident, she had obtained paperwork for filing an order for protection but had not yet filled it out.
G.B. testified that when she was on the phone with J.M., she heard loud music playing in the background, then yelling from both appellant and J.M., and then the phone went dead. She testified that after she spoke again with J.M., she called 9-1-1. The state offered a recording of the 9-1-1 call into evidence. Appellant challenged the entire contents of the call as hearsay and also objected to a number of G.M.'s statements within the call as, variously, without foundation, hearsay, speculative, and irrelevant. The district court overruled the objections without comment and admitted the recording of the entire call.
In the 9-1-1 call, G.B. told the dispatcher that appellant was "yelling and screaming, and I don't know if he's hit her or what he has done." She stated that appellant "is bipolar, schizophrenic," and "[o]h my God, you ought to hear him. . . . "[e]very other word is f-ker." G.B. also stated, "This guy has hit her before . . . she's never reported it," and "[t]his guy is crazy. I wish she could get him out of her house." G.B. continued, "He's already said he was going to kill her. I just know he's going to kill her . . . . He's been in prison before. He's hit her." She stated that J.M. told her that when she asked appellant to turn down the music, he "went ballistic." G.B. testified that J.M. had previously told her about two of the three prior domestic violence-related incidents and after the incident involving the chair, J.M. had numerous bruises on her face, had difficulty moving her jaw, and had welt marks around her neck.
The bank manager testified that when J.M. was in her office, she was distraught and "shaking uncontrollably," although when J.M. first came in, she was "calm but scared." The responding Rochester police officer testified that J.M. told him that while she was calling G.B., appellant "went . . . crazy" and started screaming at her, grabbing the phone and disconnecting it. J.M. showed the officer the blank order-for-protection forms in her purse. The officer testified that J.M. stated that she came to the bank to seek safety, that she and appellant had an abusive relationship, and that appellant had beaten her ...