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State v. Smith12/17/2002
Affirmed
Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.
In this appeal from a first-degree criminal sexual conduct conviction, appellant Juan Michael Smith argues that the district court erred by admitting into evidence the victim's out-of-court statement and that police illegally searched his residence without a warrant. We affirm.
FACTS
In June 2001, Smith and the victim, E.H., had been dating for about two years. E.H. was 21 years old. She and Smith had a five-month-old daughter, and E.H. was pregnant with their second child. E.H. and Smith were not living together at the time of the offense, but she had a set of keys to Smith's house and spent time there.
Shortly before 9:00 a.m. on June 28, 2001, E.H. called 911. She told the dispatcher that she had gotten into a fight with Smith, and he tied up her feet and wrists, gagged her, poured hot wax on her, carved on her body with a knife, and hit her in the head. E.H. told the dispatcher that she escaped from Smith's house and ran to the nearest pay phone to call 911.
Minneapolis Police Officers William Kenow and Carl Blad responded to the 911 call. They described E.H. as very frightened, shaking, and stumbling over her words with her voice cracking. E.H. identified herself to the officers and told them that Smith had physically and sexually assaulted her. E.H. stated that she had gone into an upstairs bedroom at Smith's request, and then Smith began screaming at her and hitting her and tied her up and dripped hot wax on her.
E.H. brought the officers to Smith's house, but she was too frightened to go inside herself. She told the officers that Smith was in an upstairs bedroom when she escaped. The officers found Smith sleeping in an upstairs bedroom. They woke him up and arrested him for domestic assault. Kenow took Smith to the squad car, and Blad remained in the bedroom to secure the scene.
E.H. told Blad that Smith had telephoned her repeatedly asking her to come to his house. Fearing for her safety, she did not want to go, but eventually he persuaded her. When she got to his house, she put her children on the couch downstairs, and she and Smith went upstairs to the bedroom. Smith became angry and accused her of having another boyfriend. Smith pushed E.H. down onto the bed on her stomach, put her hands behind her back, and held her down while he tied her hands. Smith then tied E.H.'s feet together with a black cord and gagged her mouth with a white T-shirt. He poked her with an orange knife and threatened to carve his name into her. The gag came out of E.H.'s mouth. She pleaded with Smith not to cut her and promised that she would get a tattoo with his name on it. Smith picked up a candle and poured hot wax on E.H. Smith stood up, unzipped his pants, pulled out his penis, grabbed E.H. by the hair, lay down on the bed, and told her to give him oral sex. After ejaculating into her mouth, Smith pushed E.H. away and fell asleep. Blad testified that on the way to jail, Smith commented, "That bitch sure give good head, though."
After placing Smith in the squad car, Kenow returned to the house and took pictures of E.H.'s injuries. E.H. had indentations and red marks around both of her wrists, burn marks on her face, and candle wax in her hair and on her clothing. E.H. told Kenow that Smith tied her wrists with shoelaces, tied her feet with a black electrical cord, gagged her with a T-shirt to stop her from screaming, dripped hot candle wax on her, and threatened her with an orange razor-blade knife. A candle was on top of the bedroom dresser, and a shoelace was on the bed. A black electrical cord, a
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