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In re Welfare of A.L.H.

Court of Appeals of Minnesota

July 15, 2013

In the Matter of the Welfare of: A. L. H., Child

UNPUBLISHED OPINION

Otter Tail County District Court File No. 56-JV-12-3284.

David W. Merchant, Chief Appellate Public Defender, Susan Andrews, Assistant Public Defender, St. Paul, Minnesota (for appellant A.L.H.).

Lori Swanson, Attorney General, St. Paul, Minnesota; and David J. Hauser, Otter Tail County Attorney, Nicole S.C. Hansen, Assistant County Attorney, Fergus Falls, Minnesota (for respondent county).

Considered and decided by Cleary, Presiding Judge; Hooten, Judge; and Klaphake, Judge. [*]

HOOTEN, Judge.

Appellant, in a juvenile delinquency proceeding, challenges the district court's decision to admit a recorded statement which had been given to police by another juvenile. Because any error in admitting the evidence is harmless, we affirm.

FACTS

Appellant A.L.H. was charged with theft by intent to exercise temporary control, theft of property, and carrying a weapon in a public place. At a bench trial, S.K., a witness called by the state, testified that sometime between 7:00 and 9:00 p.m. on the night of November 3, 2012, appellant, along with two other individuals, L.W. and Q.W., came into her house and "pulled a gun out of his pants leg." Recognizing the gun, she responded by asking why he had taken "that gun out of [D.A.'s] house, " to which appellant stated "I'm gonna go rob me some mother f---ers." S.K. then "pushed him into the back into [her] room, " told him he was "not going to do this, " and demanded that he give her the gun. However, appellant "just brushed past [her] and went back out [of her] house with the gun in his hand with [Q.W.] and [L.W.], " so she called the police. S.K. testified that she recognized the gun because she was friends with a person named D.A., and had "seen [the gun] in [D.A.'s] bedroom propped against the wall by her bed." S.K. identified D.A.'s gun in the courtroom as the gun in question.

The parties stipulated to playing and admitting a recording of S.K.'s 911 call, in which S.K stated that her "little cousin is walking down the street with a shotgun, " that there were two boys together, and identified appellant by name as having the gun. S.K. also stated that she was "walking down the street" to D.A.'s house to tell her that appellant took her gun. S.K. indicated that she could see one of the boys running towards D.A.'s house.[1]

D.A. confirmed that appellant, L.W., Q.W., and two other individuals were at her home on November 3, 2012, and that they stayed there when she left around 7:30 or 8:00 p.m. D.A. testified that she had owned a shotgun for about a year, that she kept it "by the dresser in the corner away from the bed all of the time, " and that she had never given anyone, including appellant, permission to take or use the shotgun. D.A. testified that she had spoken with police around 11:30 or 11:45 p.m. about the shotgun, but did not remember much about the conversation. D.A. testified that she got home sometime later that night. Police came to her home the next day and found the shotgun under D.A.'s bed. D.A. acknowledged that she had "no personal knowledge whether that gun left [her] house" or "who moved it from the corner to under the bed." D.A. further testified that appellant was at her home the next day because "[h]e had to turn himself in, " which she helped him do.

Appellant disputed most of S.K.'s testimony. He testified that, on November 3, 2012, he was at D.A.'s house "playing a game, [and] watching a movie, " with his little brother, his younger brother's friend, L.W., and Q.W. Appellant testified that his brother and his brother's friend left, and he, L.W., and Q.W. stayed there and played a game for about half an hour. At some point after that, he went into the kitchen to get something to eat, went upstairs, used the bathroom, and then told the others they should go. Appellant denied ever possessing the shotgun, knowing that D.A. owned a shotgun, or entering D.A.'s bedroom. Although he admitted that they stopped at S.K.'s house, they did not stay there because S.K. was drunk. After leaving S.K.'s house, he, L.W., and Q.W. split up, and he went to the house of his brother's friend, where he learned that the police were looking for him. Appellant spent the night at the home of his brother's friend and returned to D.A.'s home the next morning, where he was arrested.

L.W. testified that he was at D.A.'s home that night, playing video games with appellant and Q.W. He acknowledged that he told a police officer that, as he was playing video games with Q.W., appellant walked around D.A.'s home for a few minutes. L.W. testified that they left D.A.'s home at some point and went to S.K.'s home, though he explained that they did not go there "right after but [] ended up there." L.W. testified that, at S.K.'s home, he spoke with S.K.'s boyfriend while S.K. spoke to appellant in a back room. Although L.W. initially denied that he heard an argument between appellant and S.K., he later testified that he heard S.K. yelling at appellant, but did not know what it was about. L.W. denied that he saw appellant with a gun, and stated that they left the house when appellant came out of the back room at S.K.'s house. L.W. acknowledged that he had given a recorded statement to a police officer, and that his statement was accurate. However, L.W. stated that he did not remember telling the officer that S.K. was questioning appellant about taking the shotgun from D.A.'s house. Further, L.W. denied telling the police officer that appellant "came out of the back room carrying a shotgun."

During L.W.'s testimony, the prosecutor offered the recorded statement into evidence, to which appellant's attorney objected, arguing that "the testimony he's presenting today is what he remembers and what's accurate." The district court overruled the objection and allowed the entire audio recording of L.W.'s conversation with police to be played and admitted the ...


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