St. Louis County District Court File No. 69DU-CR-11-373.
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Larkin, Judge.
Appellant challenges his convictions of assault, terroristic threats, and carrying a pistol while under the influence of alcohol. He argues that the district court abused its discretion by admitting a recording of a 911 call as an excited utterance at his jury trial and that the prosecutor committed misconduct during closing arguments. We affirm.
Respondent State of Minnesota charged appellant Dale Ryan Porter with second-degree assault, carrying a pistol while under the influence of alcohol, fifth-degree domestic assault, and two counts of terroristic threats. The charges were based on an incident that occurred between Porter and his fiancée, S.A.M., on February 7, 2011. The case was tried to a jury, and the following evidence was presented at trial.
Porter, S.A.M., and S.A.M.'s mother jointly owned an adult foster-care company. In early 2011, St. Louis County Social Services investigated allegations that the company's employees abused its patients. On February 7, Porter was upset because a company employee, A.J.M., had given an interview to social services. When Porter arrived at the condominium he shared with S.A.M. at around 5:30 p.m., he was intoxicated. S.A.M. and Porter began arguing about A.J.M.'s interview. During the argument, Porter became upset and pulled a pistol from his belt. He held the gun at his side while demanding to know who had given A.J.M. permission to speak with social services regarding the investigation. S.A.M. told Porter that she thought her mother had given permission, which further upset Porter.
Porter ordered S.A.M. to accompany him to her mother's house, but she refused. Porter pointed the gun at S.A.M., and she dropped to the floor. Porter pointed the gun at the back of S.A.M.'s head and ordered her to get onto the elevator. She refused. Porter then grabbed her left hand and twisted her wrist while holding the gun to the back of her head. S.A.M. again refused to get on the elevator, so Porter got on the elevator by himself and left the scene.
S.A.M. packed a bag, planning to leave the condominium. Next, she called her mother to warn her that Porter was upset and possibly on the way to her house. S.A.M. left the condominium, moved her car to the front door of the building, and then went back into her condominium to retrieve her belongings. As S.A.M. entered her condominium, Porter was standing near the doorway with a gun in each of his hands. He demanded information regarding A.J.M.'s interview with social services. S.A.M. said she did not know anything and attempted to leave, but Porter threw her to the ground. He put a gun to the back of her head and insisted that she accompany him to their bedroom. She refused, and he hit her on the side of her leg with the gun. She agreed to go into the bedroom, but when Porter let her stand up, she ran from the condominium to her car.
S.A.M. called A.J.M. and told him that Porter had held a gun to her head. She also said that Porter had threatened to shoot her and her mother. She asked A.J.M. to call his father, who is a police officer. A.J.M. agreed to call his father, but he also told S.A.M. to call the police. S.A.M. told A.J.M. that she did not want to call 911 because doing so might harm Porter's "political career." A.J.M. called his father and then called S.A.M. and told her to immediately call 911. He stressed the seriousness of the situation and told her he would call the police if she did not. S.A.M. cried during her phone call with A.J.M.
After speaking with A.J.M., S.A.M. called 911. She reported that Porter was "very intoxicated and . . . held several loaded weapons to [her] head." S.A.M. said she "dropped to the ground when [Porter] pulled his gun and he put it to [her] head and then he put [her] in an arm bar." S.A.M. cried during the call and repeatedly mentioned that she did not want to get Porter in trouble. A recording of the 911 call was admitted into evidence pursuant to a pretrial ruling by the district court.
After S.A.M. called 911, the police responded to the condominium and arrested Porter. A breath test administered about two hours after Porter's arrest indicated that he had an alcohol concentration of .12.
At trial, S.A.M. testified that her allegations regarding Porter's conduct on February 7 were false. She claimed that she made the false allegations because she hoped A.J.M. and his father would speak with Porter about his drinking. She testified that after A.J.M. threatened to call the police, she called 911 because she "didn't want to get caught in [her] lie." She also testified that she told her mother that Porter threatened to shoot her so her mother would take the situation seriously.
The jury found Porter guilty of all of the charged offenses, including an additional fifth-degree assault charge that was added during trial. The district court denied Porter's ...