author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for REINSTATEMENT TO the PRACTICE OF LAW OF James W. MOEN, Registration No. 160349.
    No. A05-925.
    Supreme Court of Minnesota.
    Feb. 8, 2006.
   ORDER

On March 28, 2005, we indefinitely suspended petitioner James W. Moen from the practice of law, the suspension to ran concurrently with petitioner’s probation for wire fraud and fraud and related activity in connection with computers. In re Moen, 694 N.W.2d 556 (Minn.2005). Petitioner applied for reinstatement in May 2005, and a hearing was held before a panel of the Lawyers Professional Responsibility Board. The panel found that petitioner has proven by clear and convincing evidence he is competent and morally fit to resume the practice of law. See In re Swanson, 343 N.W.2d 662, 664 (Minn.1984) (providing that burden is on attorney to establish by clear and convincing evidence the moral fitness to resume the practice of law). The panel further found that petitioner has complied with Rule 26, Rules on Lawyers Professional Responsibility (RLPR), paid costs under Rule 24, RLPR, successfully completed the professional responsibility portion of the bar examination, and is current with continuing legal education requirements. The panel recommended that petitioner be reinstated to the practice of law and be placed on probation for two years.

Petitioner and the Director of the Office of Lawyers Professional Responsibility have entered into a stipulation in which they stipulate that the panel’s findings of fact are conclusive, waive briefing and oral argument, and jointly recommend that petitioner be reinstated to the practice of law under supervised probation for two years subject to the following conditions:

(a) Petitioner shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of his probation.
(b) Petitioner shall abide by the Minnesota Rules of Professional Conduct.
(c) Petitioner shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Petitioner shall not agree to represent any client until the supervisor has signed a consent to supervise. Petitioner shall provide to the Director the names of four attorneys who have agreed to be nominated as petitioner’s supervisor no later than two weeks from the date of the court’s reinstatement order. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director shall appoint a supervisor. Petitioner shall make active client files available to the Director upon request.
(d) Petitioner shall cooperate fully with the supervisor in his or her efforts to monitor compliance with the probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e) If petitioner successfully completes the first year of his supervised probation, the Director has the discretion to make the second year of probation unsupervised.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, petitioner James W. Moen is reinstated to the practice of law and is placed on probation for a period of two years subject to the agreed-upon terms and conditions set forth above. In the event the Director elects to make the second year of petitioner’s probation unsupervised, the Director shall so notify this court.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


source: Caselaw Access Project

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Albert A. GARCIA, Jr., a Minnesota Attorney, Registration No. 219472.
    No. A05-719.
    Supreme Court of Minnesota.
    Feb. 8, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Albert A. Garcia, Jr., committed professional misconduct warranting public discipline, namely, failure to supervise a non-lawyer employee resulting in a forged signature on a document filed with the district court and failure to refund the unearned portion of a client retainer, in violation of Minn. R. Prof. Conduct 3.4(b), 5.3(c)(1), 8.4(c) and (d), 1.15(c)(4), 1.16(d), and 5.3(b).

In accordance with Rule 14(a), Rules on Lawyers Professional Responsibility (RLPR), the matter was referred to a referee with directions to hear and report the evidence submitted for and against the petition for disciplinary action. Respondent stipulates that the referee’s findings of fact and conclusions of law are conclusive and waives his right to briefing and oral argument to this court. Respondent has entered into a stipulation with the Director in which they jointly recommend:

(a) that respondent be suspended from the practice of law for a period of 30 days, effective 14 days from the date of this order;
(b) that respondent be eligible for reinstatement under Rule 18(f), RLPR;
(c) that respondent be required to successfully complete the professional responsibility portion of the bar examination within one year of reinstatement;
(d) that before reinstatement respondent be required to establish written office procedures satisfactory to the Director designed to ensure that respondent is properly training and supervising non-lawyer employees;
(e) that respondent notify clients, opposing counsel, and tribunals of his suspension in compliance with Rule 26, RLPR; and
(f) that respondent pay $900 in costs pursuant to Rule 24(a), RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Albert A. Garcia, Jr., is suspended from the practice of law for 30 days, suspension to be effective 14 days from the date of this order, subject to the conditions set forth above.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: ANDERSON, G. BARRY, Justice.

text:
    KMART CORPORATION, Relator, v. COUNTY OF BECKER, Respondent.
    No. A05-1069.
    Supreme Court of Minnesota.
    Feb. 9, 2006.

      Thomas R. Wilhelmy, Laurie J. Miller, Fredrikson & Byron, P.A., Minneapolis, MN, for appellant.
    Gretehen D. Thilmony, Asst. Becker County Atty., Detroit Lakes, for respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Kmart contested the assessed value of its Detroit Lakes store for taxes payable in the years 2002, 2003, and 2004. The Becker County assessor had originally estimated the market value of the store to be between $2.77 million and $2.8 million for the disputed three years. Kmart’s expert appraiser opined that the value was actually $2.35 million for each year; Becker County’s expert appraiser opined that the value was. actually $3.3 million for each year. After a trial, the tax court found that the store’s fair market value was $2,720,380 for each of the three years. Kmart moved for amended findings based on perceived inconsistencies between the tax court’s factual finding and the tax court’s memorandum explaining how it arrived at the store’s fair market value. The tax court heard and denied Kmart’s motion, and affirmed the valuation. of $2,720,380. We affirm.

Kipart leased the disputed property from the owner from the time the building was constructed in 1990 until Kmart purchased it outright in 1999. Kmart purchased the property, along with two others that it was leasing from the same owner, for a package price of $11 million. The purchase price of the disputed property was $3,696,000. In 2001, a Super Wal-Mart opened approximately one-half mile from the property, shortly after the valuation date for the property taxes payable in 2002. The Becker County assessor placed a January 2, 2001, estimated market value on the property of $2,772,800 for taxes payable in 2002. The January 2, 2002, and 2003 assessed values were $2,786,700 and $2,799,500, respectively.

Both Kmart and Becker County hired appraisers to determine the fair market value of the property for the years at issue. The appraisers filed substantial reports,. with Kmart’s appraiser (Leirness) valuing ..the property at $2.35 million for each of the three -years, and the county’s appraiser (Dahlen) valuing it at $3.3 million for each of the three years. Both appraisers used the comparable sales and the income methods for determining value, while Dahlen also used the cost replacement method. Because the property was 11 years old on the date of valuation,- the-tax court placed no weight on the cost replacement method.

The comparable sales method attempts to value a property by comparing the recent arm’s length sales prices of similar properties and then adjusting those sales prices for differences between the sold property and the subject property. Leirness determined that 17 property sales were comparable; Dahlen determined that four property sales were comparable. Both appraisers agreed that three sales of leased fee interests in existing Kmart stores were comparable properties for valuing the property. Two of the three sales were the other two properties sold as a package with the disputed property for $11 million in 1999. The tax court “place[d] the most weight on” those three properties chosen by both appraisers.

In their appraisals, with the exception of one mathematical error admitted by Dah-len at trial, both parties essentially agreed that the sales price of the three comparable properties ranged from $36.71 to $40.88 per square foot. The appraisers then made adjustments for the differences in value of the comparable properties and the Becker County property. In making adjustments, the appraisers’ primary disagreement was the amount of adjustment required to reflect the difference in value between the sale of the comparable properties, which were subject to a long-term lease at time of sale, and a sale of the property in fee simple. Dahlen testified that no adjustment was necessary because the leases on the comparable properties reflected a fair market rental cost. Leirness testified that the leases on the comparable properties reflected an above-market rent, and the value of the comparable properties, without a lease attached, would be 15% lower.

After adjustments, Dahlen’s value per square foot of the comparables ranged from $36.71 to $42.81. Using the comparable sales method, Dahlen estimated that the value of the property was $39 per square foot. Leirness’s value per square foot of the comparables, after adjustments, ranged from $28.68 to $29.84. Using the comparable sales method, Leirness estimated the value of the property to be $27 per square foot. The tax court found that under the comparable sales method, a value of $35 per square foot was reasonable. Multiplying the square foot value by the total square footage of the property, the tax court calculated a property value of $3,040,765 using this method.

Both appraisers also utilized the capitalized income method to value the property. The income method values a property by capitalizing the net annual income the property would be expected to generate. In the present case, the two key components of this value are the net fair market rental income the property would generate and the capitalization rate a typical investor would expect. Leirness estimated the net annual income of the property to be $250,000, while Dahlen estimated the net annual income to be $310,000. The tax court generally agreed with Leirness on the net fair market rental income the property would generate and apparently used a net annual income amount of $246,000. Dahlen used a 9.5% capitalization rate for his appraisal, while Leirness used a 10.5% rate after he also discussed the use of a 10.25% rate. The tax court used the lower of the two rates (10.25%) that Leirness discussed in his appraisal. The tax court found the property’s value using the capitalized income method to be $2.4 million.

The tax court then apparently averaged the values derived from the two methods, $2.4 million using the capitalized income method and $3,040,765 using the comparable sales method, and concluded that the market value of the property for all three years was $2,720,380. Kmart moved for amended findings, alleging inconsistencies between the tax court’s findings of fact and the tax court’s memorandum explaining how it arrived at its finding of value. The court held a hearing and denied Kmart’s motion, affirming its original findings in all respects.

In reviewing the tax court’s valuation of the subject property,

[t]his court will not disturb the tax court’s valuation of property for tax purposes unless the tax court’s decision is clearly erroneous, which means the decision is not reasonably supported by the evidence as a whole. The tax court’s decision should be considered clearly erroneous only when this court is left with a definite and firm conviction that a mistake has been committed. * * * The inexact nature of property assessment necessitates that this court defer to the decision of the tax court unless the tax court has either clearly overvalued or undervalued the subject property, or has completely failed to explain its reasoning.

Equitable Life Assurance Soc’y of U.S. v. County of Ramsey, 530 N.W.2d 544, 552 (Minn.1995) (citations and quotations omitted). We have also stated that “[t]he tax court [is] not bound to accept the valuation of either appraiser,” Am. Express Fin. Advisors, Inc. v. County of Carver, 573 N.W.2d 651, 658 (Minn.1998).

Kmart argues that the tax court clearly erred in two ways. First, it argues that, because of the tax court’s “express acceptance” of Leimess’s 15% reduction in the value of comparable sales subject to a long-term lease, the tax court’s reasoning was “illogical.” Essentially, Kmart argues that the tax court was required to reduce the county’s appraisal of $39 per square foot by 15%, resulting in a value of $33.15 per square foot. Kmart then argues that $33.15 per square foot must be the upper end of the range of permissible valuations of the property with Kmart’s appraisal of $27 per square foot as the lower end of the range. Thus, Kmart argues that the tax court clearly erred when it found the value to be $35 per square foot — outside of the range argued by Kmart. Kmart also argues that the tax court was bound to use the same capitalization rate as used by Kmart’s appraiser because the tax court’s memorandum stated that it used “[Leirness’s] capitalization rate of 10.25%.” Kmart contends that because Leirness “unquestionably used a capitalization rate of 10.5% in his analysis,” the tax courts “unexplained usage of a different, lower capitalization rate, represents a clearly erroneous finding.”

The county argues that the evidence presented at trial supports the tax court’s finding on both issues. It also argues that the tax court did not “expressly accept” Leirness’s 15% downward leased fee adjustment and was not bound by it. Finally, it argues that Leirness “used” a capitalization rate of 10.25% under the “band of investment method” to determine his proposed capitalization rate of 10.5% that he then “used” in determining the property’s value.

The evidence amply supports the tax court’s valuation. The tax court was presented with expert opinions on the value of the property. Kmart’s appraiser valued it at $2.35 million. The county’s appraiser valued it at $3.3 million. The tax court concluded that the value was $2,720,380— an amount more than $100,000 below the average of the two appraisals. Kmart essentially is asking this court to conclude that the tax court “completely failed to explain its reasoning,” and therefore this court should not defer at all to the tax court’s decision. Equitable Life Assurance Soc’y of U.S., 530 N.W.2d at 552. The gist of Kmart’s argument is that the words used by the tax court in its memorandum can only convey the meanings ascribed to them by Kmart. But the tax court explained its reasoning in a 12-page memorandum attached to its initial findings and rejected Kmart’s argued meanings when it denied Kmart’s motion for amended findings of fact.

As to the amount of the leased fee adjustment, the county’s expert, Dahlen, argued that there should be no negative percentage adjustment. The tax court determined that the county “did not provide clear and convincing evidence” for this argument. It then wrote: “Based upon the evidence presented, we accept [Leirness’s] testimony that the leases were higher than the market rent and make adjustments for the leased fee nature of the comparable sales.” Nowhere does the tax court make an “express acceptance” of Leirness’s 15% adjustment, as Kmart claims; rather, it “made a reasonable adjustment based on the evidence.” That is, the tax court arrived at a compromise adjustment after evaluating the testimony and other evidence provided by two experts. See id. at 558 (“When the tax court reconciles conflicting opinions of value and arrives at a compromise valuation, that compromise must have evidentiary support.”). The tax court did not clearly err when it determined a comparable sales value of $35 per square foot.

Kmart’s argument with regard to the tax court’s use of a capitalization rate of 10.25% appears to entirely depend upon what the meaning of “his” is. The tax court wrote: “We find [Leirness’s] analysis persuasive and use his capitalization rate of 10.25%.” Earlier in the same paragraph, the tax court noted that “Leirness used a rate of 10.5%,” and consulted “other sources as a check of his use of a 10.5% capitalization rate.” But the tax court also noted that Leirness “then used the band of investment method as a check, which reflected a capitalization rate of 10.25%.” In the same paragraph where the tax court stated that Leirness “used” two different capitalization rates, and that Dahlen “used” a rate of 9.5%, the court decided to “use” the lower of two rates presented by Leirness — the lower of “his” two rates. When presented with this perceived inconsistency, the tax court affirmed that its decision to use a 10.25% capitalization rate was based on the “evidence and analyses presented,” and denied Kmart’s request to change the rate.

Kmart does not argue that its own appraiser’s calculation of a 10.25% capitalization rate under the band of investment method was unsupported by the evidence. While the tax court could have been clearer as to why it chose the 10.25% rate, the tax court apparently concluded that the evidence best supported that rate. As the evidence provided by Kmart’s own appraiser supports the use of that rate, the tax court did not clearly err in using it. See id. at 552 (“This court will not disturb the tax court’s valuation of property for tax purposes unless the tax court’s decision is clearly erroneous, which means the decision is not reasonably supported by the evidence as a whole.”).

The tax court’s valuation of the subject property is reasonably supported by the evidence as a whole, and we are not definitely and firmly convinced that a mistake has been committed.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Dahlen admitted at trial that his comparable property number 1 actually had a sales price per square foot of $40.88 rather than $44.67 as shown in his appraisal. After making adjustments but without correcting this error, his calculated "indicated value" for property number 1 was $46.78 per square foot. The corrected indicated value should be $42.81 per square foot ($40.88 multiplied by ratio of $46.78 divided by $44.67).

      . Multiplying the tax court's value under this method of $2.4 million by the capitalization rate it used of 10.25% results in a net annual income amount of $246,000.


author: ANDERSON, RUSSELL A., Chief Justice. PAGE, Justice

text:
    STATE of Minnesota, Appellant, v. Orlando Manuel BOBADILLA, Respondent.
    No. A03-1891.
    Supreme Court of Minnesota.
    Feb. 9, 2006.

      Mike Hatch, Atty. Gen., John Gallus, Kelly O’Neill Moller, Asst. Attys. Gen., St. Paul, Boyd Beccue, Kandiyohi Cty. Atty., Wilmar, for appellants.
    John E. Mack, Mack & Daby, P.A., New London, for respondents.
    Victor Vieth, Director, American Prosecutors Research Institute National Child Protection Training Center, Winona, for amicus curiae American Prosecutors Research Institute in Support of Appellant State of Minnesota.

      Karen Long, Sexual Violence Justice Institute of Minnesota Coalition Against Sexual Assault, Minneapolis, for amicus curiae Minnesota Coalition Against Sexual Assault in Support of State.
    John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Sara L. Martin, Asst. State Public Defender, Minneapolis, for amicus curiae Minnesota State Public Defender’s Office in Support of Orlando Manuel Boba-dilla.
    Teresa J. Nelson, American Civil Liberties Union of Minnesota, St. Paul, Howard S. Carp, Volunteer Atty. on behalf of American Civil Liberties Union of Minnesota, Minneapolis, for amicus curiae American Civil Liberties Union of Minnesota.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Orlando Manuel Bobadilla was convicted of first-degree criminal sexual conduct and sentenced to 144 months in prison following a jury trial in Kandiyohi County. On appeal, the court of appeals reversed his conviction and remanded for a new trial, concluding that, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the admission at trial of statements by a young child in a risk-assessment interview conducted by a child-protection worker had violated Boba-dilla’s rights under the Confrontation Clause of the United States Constitution. We conclude that the child’s statements were not testimonial in nature, and that Bobadilla was not otherwise deprived of a fair trial. We therefore reverse the court of appeals’ decision to remand for a new trial, and reinstate Bobadilla’s conviction.

On Friday afternoon, May 2, 2003, 3-year-old T.B. was dropped off by his mother for a weekend visit with his father, who was then residing with several relatives, including T.B.’s uncle, 23-year-old respondent Orlando Bobadilla. T.B.’s mother worked a 3:00 p.m.-ll:00 p.m. shift on weekends, and following the end of her shift on Sunday, May 4, 2003, she picked up T.B. sometime after 11:00 p.m.

As T.B.’s mother was readying T.B. for bed and changing his pull-up diaper, she “noticed that his bottom was a little red” and asked him what had happened. He became nervous and started playing with his hair. She told him that she was his mother and that he could tell her anything. T.B. then told her that “his Uncle Orlando had put his finger in his ‘booty,’ ” T.B.’s word for buttocks. T.B.’s mother said “okay,” finished changing him, and sent him off to his room. She then phoned T.B.’s father and reported what T.B. had said. After hearing of T.B.’s story, T.B.’s grandmother decided that they should take him to the hospital. As T.B. and his mother were waiting to be picked up to go to the hospital by T.B.’s father and grandmother, T.B.’s mother asked him if he had asked Bobadilla to stop. T.B. indicated that he had, and that Bobadilla had said he was sorry.

T.B.’s parents brought T.B. into the hospital’s emergency room where he was examined by an emergency-room physician. After talking to T.B.’s parents, the physician conducted a full-body examination of T.B., and observed an abnormal erythema, or redness, around his rectum. The physician saw no ulcerations or lesions, which would have indicated a chronic problem, and believed the erythema was consistent with what the child had disclosed.

A Willmar Police Department officer was dispatched to the hospital on an assault report. The officer initially met with the emergency room nurse and then with TJB.’s parents. After doing so, the officer forwarded his report to both the Investigations Unit of the police department and the Kandiyohi County Family Service Department. Over the next several days, a Kandiyohi County child-protection worker from the Family Service Department tried a number of times to contact T.B.’s mother by phone, finally connecting with her on May 9, 2003. The child-protection worker arranged to have T.B. interviewed that day at the law enforcement center.

T.B. and his parents arrived at the law enforcement center at approximately 1:30 p.m. The child-protection worker and a Willmár police detective, out of uniform, met the family and escorted them to the interview room. The interview room, called the “child friendly room,” was specifically used for interviewing children and featured a video camera that recorded the exchange from behind a one-way mirror. The detective did not participate in the interview, but observed, sitting across from the child-protection worker and T.B. The child-protection worker conducted the interview using the CornerHouse protocol, which she described as a technique “specifically geared towards interviewing children who have been victims of sexual abuse.” The protocol consists of establishing rapport with the child, ascertaining the child’s terms for parts of the anatomy, ascertaining whether abuse occurred, and closing with a “safety message.”. The Corner-House technique instructs the interviewer to ask nonleading questions, to use terms children would understand, and to progress quickly since young children have short attention spans.

The child-protection worker began the interview by asking T.B. about his parents and she then drew pictures of them. Next, using a diagram of a male, she had T.B. identify his names for various parts of the anatomy, starting with the head and moving down. Then the following exchange occurred:

Child-Protection Worker: [H]as anybody hurt your body?
T.B.: Mmm, MmmMmm (affirmative)
CPW: Yeah. Who hurt your body?
T.B.: Orlando did!
CPW: Orlando did * ⅜ * How did Orlando hurt your body?
T.B.: He (inaudible) my (inaudible).
CPW: What?
T.B.: He, he (inaudible) touch my (inaudible). . . ■
CPW: (inaudible) your bootie. Okay. What did he do to your bootie? ■
T.B.: (inaudible) put his finger in there.
CPW: He just put his finger in there? Okay * * *.

T.B. then identified what he meant by “booty” by pointing to the buttocks area on the diagram the child-protection worker had provided.

The child-protection worker asked T.B. where he and Bobadilla were at the time of the incident, and T.B. said they were in- his father’s room. She asked where his father was while it happened. T.B. said that his father had gone downstairs and then come upstairs, but he also said “yeah” when asked if his father had seen it happen.Then the child-protection worker asked him if he would show her what had happened using an anatomically correct doll. He said he would, but ultimately did not. She also asked if Orlando touched him on his skin or on his clothes, and T.B. replied, “My skin.” The child-protection worker then closed the interview by telling T.B. that what had happened was not okay, and that he should tell someone, like his mother, if something similar ever happened again.

Bobadilla was charged with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2004) (engaging in sexual penetration with another person under 13 years of age when the actor is more than 36 months older than the complainant), and second-degree criminal sexual conduct,'in violation of Minn. Stat. § 609.343, subd. 1(a) (2004) (engaging in sexual contact with another person under 13 years of age when the actor is more than 36 months older than the complainant).

At trial, the district court found T.B. incompetent to testify, but ruled that his statements to his mother and his statements in the child-protection interview were sufficiently reliable to permit their admission as substantive evidence under the hearsay exception embodied in Minn. Stat. § 595.02, subd. 3 (2004). Therefore, the court allowed T.B.’s mother and the child-protection worker to testify about T.B.’s statements, and also allowed the state to show the videotape of T.B.’s interview. In addition to the evidence of T.B.’s statements, the emergency-room physician testified regarding her medical examination of T.B. T.B.’s father also testified, stating that he left his son alone with Bobadilla for only seconds when he went downstairs to retrieve the family cat, but that he might have told police that he was gone for 5 minutes or so. The detective testified that Bobadilla, in his police interview, said that T.B.’s father was gone for 15-20 minutes looking for the cat. Boba-dilla testified on his own behalf and denied the allegations of sexual misconduct.

The jury found Bobadilla guilty as charged. The district court entered judgment of conviction for the first-degree criminal sexual conduct charge and imposed the 144-month presumptive sentencing guidelines term, together with 5 years of conditional release. On appeal, Bobadil-la challenged certain evidentiary rulings and argued that T.B.’s statements in the child-protection interview were testimonial statements and therefore the admission of those statements without a prior opportunity for cross-examination violated his constitutional right of confrontation under the United States Supreme Court’s decision in Crawford, which had been decided while his appeal was pending. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Though the court of appeals rejected Bobadilla’s other arguments, the court agreed that his right of confrontation had been violated, and therefore reversed his conviction and remanded the matter for a new trial. We granted the state’s petition for review.

I.

The Confrontation Clause of the United States Constitution ensures that a criminal defendant “shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const, amend. VI; see also Minn. Const. Art. 1, § 6. Prior to the United States Supreme Court’s decision in Crawford, an unavailable witness’s out-of-court statement would not violate the Confrontation Clause if the statement fell under a hearsay exception, and if it bore “particularized guarantees of trustworthiness,” or “adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981). The Crawford court rejected this approach, concluding that “[r]eliability is an amorphous, if not entirely subjective, concept.” 541 U.S. at 63, 124 S.Ct. 1354. The Court explained:

[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

Crawford, 541 U.S. at 61, 124 S.Ct. 1354. Accordingly, Crawford explained that the Confrontation Clause should be interpreted as a procedural, rather than a substantive guarantee, aimed at curbing abuses that were inherent in “the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 541 U.S. at 50, 61, 124 S.Ct. 1354. In light of this procedural focus, Crawford instructs that the right of confrontation attaches not to judicially determined “reliable” statements, but to all statements by “witnesses against the accused — in other words, those who bear testimony.” Id. at 51, 124 S.Ct. 1354 (quotation marks omitted). Thus, Crawford’s Confrontation Clause test bars at trial all “testimonial” out-of-court statements when the accused is not afforded “a prior opportunity to cross-examine” the declarant. Crawford, 541 U.S. at 61, 124 S.Ct. 1354. In this case, it is undisputed that T.B. was not subject to cross-examination, and so our sole inquiry under the Confrontation Clause is whether T.B.’s statements in the interview with the child-protection worker were “testimonial” under Crawford.

The Crawford Court determined that the case before it presented a clearly testimonial situation. See 541 U.S. at 53 n. 4, 124 S.Ct. 1354 n. 4. Crawford and his wife were both given Miranda warnings and separately interrogated by police officers after Crawford had stabbed a man who had allegedly raped his wife. Id. at 38, 124 S.Ct. 1354. Crawford’s wife observed the stabbing and her statements describing the incident to the police officers were introduced in her husband’s trial under the statements-against-penal-interest exception to the hearsay rule, since her statements tended to show that she had a role in facilitating the assault. Id. at 38-40, 124 S.Ct. 1354.

The Crawford Court considered the wife’s statement — a “recorded statement, knowingly given in response to structured police questioning” — to be clearly testimonial, but “refus[ed] to articulate a comprehensive definition” of testimonial statements. Id. at 53 n. 4, 68 n. 10, 124 S.Ct. 1354. The Court listed three formulations of. testimonial statements, though it declined to choose among them:

1. ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably exp'ect'to be used prosecutorially;
2. extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;
3. statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'

Id. at 51-52, 124 S.Ct. 1354 (internal citations, quotation marks, and ellipses omitted; numbering added).

Though it is unclear whether any of these three formulations are'authoritative, Crawford explained that all three “share a common nucleus” of testimonial statements, which includes, “at a minimum * * * prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and * * * police interrogations Id. at 52, 68, 124 S.Ct. 1354. The Crawford Court also explained that a testimonial statement “is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51, 124 S.Ct. 1354 (quotation marks omitted). Therefore, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354.

As interpreted by Crawford, the Confrontation Clause is aimed at protecting against abuses by both declarants and government questioners. See Crawford, 541 U.S. at 44, 56 n. 7, 67, 124 S.Ct. 1354. Crawford explains that the Framers wrote the Clause not only in consideration of scheming declarants like the infamous Lord Cobham, who was allowed to present self-serving and uncross-examined testimony in the trial of Sir Walter Raleigh, but also in consideration of corrupt government officials, explaining that “[the. Framers], knew that, * * * government officers[ ] could not always be trusted to safeguard the rights of the. people.” Crawford, 541 U.S. at 44, 67, 124 S.Ct. 1354.. The Crawford Court observes that the “[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at. 56 n. 7, 124 S.Ct. 1354.

We have dealt extensively with testimonial statements under Crawford once previously. In State v. Wright, we held that a 911 call reporting an assault and a police interview with the assault victims, conducted soon after the incident, were both non-testimonial. 701 N.W.2d 802, 804, 815 (Minn.2005). However, we explained that we would determine whether statements were testimonial on a case-by-case basis, especially given the uncertainty surrounding Confrontation Clause issues following Crawford. Wright, 701 N.W.2d at 812. In making the determination that the statements at issue in Wright were not testimonial, we articulated eight relevant considerations:

(1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the de-clarant’s home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded.

Id. at 812-13. The second and seventh factors — the purpose of the statements from the perspective of the declarant and from the perspective of the government questioner — were the central considerations. See id. at 811, 813-14. The other six factors are probative of these two. We believe that Wright’s focus on the purpose of the statements from the perspectives of both the declarant and the government questioner is consonant with Crawford’s concern with abuses by both declarants and government questioners.

Our , approach in Wright is consistent with the approach of numerous other courts that have also determined that the testimonial question turns on whether government questioners or declarants take or give a statement “with an eye toward trial.” Crawford, 541 U.S. at 56 n. 7, 124 S.Ct. 1354. For example, when the facts indicate that both a government questioner and a declarant are, to a substantial degree, acting with an eye toward trial, courts have consistently held that the de-clarant’s statements are testimonial. See, e.g., United States v. Saner, 313 F.Supp.2d 896, 901-02 (S.D.Ind.2004) (deciding that incriminating statements made to an investigating prosecutor were testimonial); People v. Zarazua, No. H025472, 2004 WL 837914, *4 (Cal.Ct.App. 6th Dist. Apr. 20, 2004) (determining that an adult rape and assault victim’s videotaped statement to police at the police station was testimonial); People v. Vigil, 104 P.3d 258, 262-63 (Colo.Ct.App.2004) (determining that a statement by a 7-year-old declarant during a police interrogation was testimonial where the child understood the punitive consequences of his statements), cert. granted, 2004 WL 2926003 (Colo. Dec.20, 2004); see also Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (stating that “[a]n accuser who-makes a formal statement to government officers bears testimony”). In the converse situation, when both a questioner and a declarant are not, to any substantial degree, acting with an eye toward trial, courts have consistently held that the de-clarant’s statements are not testimonial, as we did in Wright, 701 N.W.2d at 813-14. Most courts have also determined that a statement is testimonial if a government questioner is acting largely for the purpose of preserving a statement for trial, even if the declarant is not. E.g., United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir.2005) (deciding that a statement was testimonial when a young child was interviewed for the purpose of collecting information for law enforcement), reh’g en banc denied (May 27, 2005); State v. Mack, 337 Or. 586, 101 P.3d 349, 352 (2004) (same); People ex reL. R.A.S., 111 P.3d 487, 488 (Colo. Ct.App.2004) (same).

Often, government questioners and declarants will have multiple purposes. But the fact that a statement is given or taken partially for reasons other than preservation for trial does not preclude a determination that the statement is testimonial. E.g., Bordeaux, 400 F.3d at 556 (stating that “Crawford does not indicate, and logic does not dictate, that multi-pur-pose statements cannot be testimonial”). For instance, a police officer will often be acting, to at least some degree, with an eye toward trial, even when responding to an emergency. But where preservation for trial is merely incidental to other purposes, such as assessing and responding to an immediate danger, a statement will not be deemed testimonial. See, e.g., Ham-mon, 829 N.E.2d at 458 (statement was not testimonial where an officer taking a statement “was principally in the process of accomplishing the preliminary tasks of securing and assessing the scene”). Our decision in Wright provides an instructive example. In Wright, we acknowledged that officers at the scene were acting at least to some degree with an evidence-gathering purpose, but observed that, nonetheless, the officers’ actions were primarily “a response to a call for assistance and preliminary determination of ‘what happened’ and whether there was immediate danger, rather than an effort to gather evidence for a future trial.” Id. at 813-14. Thus, producing evidence for trial must be at least a substantial purpose of the statement.

These decisions, our own decision in Wright, and Crawford itself all instruct us that the key to determining whether a statement is testimonial is whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial. See espe- dally Hammon, 829 N.E.2d at 456 (concluding that “if either [a declarant or questioner] is principally motivated by a desire to preserve the statement. [for use at a future trial] it is sufficient to render the statement ‘testimonial,’ ” and determining that “development ‘with an eye toward trial’ is in our view the critical component” of determining whether a statement is testimonial under Crawford).

Whether a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial is determined by asking whether a reasonable government questioner or de-clarant in the relevant situation would exhibit that purpose. We make this inquiry, as opposed to an inquiry into the subjective motivations of declarants or questioners, because Crawford explained that “only cross-examination” can reveal a declarant’s subjective perception of his or. her situation. 541 U.S. at 66, 124 S.Ct. 1354. In addition, this approach is consistent with our reasoning in Wright, in which we looked to the likely motivations of reasonable people in the relevant situations, see 701 N.W.2d at 811, 813-14, but rejected an inquiry that hinged on the perspective of an objectively situated person who was unaffected by the context in which the statement was made, see id. at 814. In so doing, we explained that the latter approach would be overbroad, and would improperly ignore statements’ “interrogative qualities,” or the contextual aspects of the questioning. Id. Finally, we note that an inquiry into the purpose of a reasonable government questioner or declarant in the relevant situation also conforms with Crawford’s, core categories of testimonial statements — “prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and * * * police interrogations” — since a reasonable questioner taking a statement in any one of those situations would always exhibit a substantial concern with producing a statement for use in legal proceedings. 541 U.S. at 68, 124 S.Ct. 1354.

II.

In the context of child-declarant cases, courts in several jurisdictions have held that the statements of children in interviews conducted by social workers or police investigators are testimonial. We note that the facts of many of these cases can be distinguished from the present situation. See, e.g., Snowden, 846 A.2d at 39-41, 47 (finding the statements of 10- and 8-year-old children to be testimonial when the statements were taken pursuant to a statute that allows the admission at trial of children’s out-of-court statements regardless of whether the children are incompetent or unavailable to testify). Moreover, as with other cases in which testimonial questions arise, these eases have consistently determined that children’s statements are testimonial in situations where either the declarant or government questioner was acting, to a substantial degree, in order to produce a statement for trial. Using a similar rationale, several courts have considered the statements of children to social workers or police officers to be tantamount to police interrogations, and therefore testimonial. E.g., T.P. v. State, 911 So.2d 1117, 1123 (Ala.Crim.App.2004) (stating that “because [an interview of a child by a social worker] was intended to be used as an investigative tool for a potential criminal prosecution, the interview is similar to a police interrogation and, thus, falls within the definition of ‘testimonial’ contained in Crawford ”), cert. denied (Ala. Mar. 11, 2005). As we noted above, we think it is reasonable to conclude that in any situation tantamount to a “police interrogation” under Crawford, the government questioner taking the statement would be acting, to a substantial degree, in order to produce a statement for trial.

But in this case, neither the child-protection worker nor the child declarant, T.B., were acting, to a substantial degree, in order to produce a statement for trial. The parties do not dispute that the interview of T.B. was conducted in accord with a statutory scheme for reporting, investigating, and responding to threats to children’s health or welfare. Minn.Stat. § 626.556 (2004). This statutory scheme provides that certain individuals must report the maltreatment of minors either to law enforcement or to the local welfare agency. Id. Following a report of abuse, “the local welfare agency shall immediately conduct an assessment including gathering information on the existence of substance abuse and offer protective social services for purposes of preventing further abuses, safeguarding and enhancing the welfare of the abused or neglected minor, and preserving family life whenever possible.” Minn.Stat. § 626.556, subd. 10(a). To the extent that an allegation of abuse alleges a violation of a criminal statute, the local welfare agency and law enforcement must “coordinate the planning and execution of their respective investigation and assessment efforts to avoid a duplication of fact-finding efforts and multiple interviews.” Id. Both the welfare agency and law enforcement must prepare separate reports. Id. The local welfare agency is required to use a “nondirective” question-and-answer format and to make audio-video recordings of the interviews of alleged victims of sexual abuse. Minn.Stat. § 626.556, subd. 10(j)(2).

The clearly delineated purpose of this statutory scheme is to protect the health and welfare of children:

[T]he public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse. In furtherance of this public policy, it is the intent of the legislature under this section to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings; and to provide, when necessary, a safe temporary or permanent home environment for physically or sexually abused or neglected children.
In addition, it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require the assessment and investigation of the reports; and to provide protective and counseling services in appropriate cases.

Minn. § Stat. 626.556, subd. 1. This statute stands in contrast to statutes such as the Maryland statute at issue in Snowden, 156 Md.App. 139, 846 A.2d 36. In Snowden, the court found an interview testimonial where the statutory interviewing scheme was designed with the express purpose of facilitating the creation of out-of-court statements for a future trial. Id. at 47.

Avoiding multiple interviews is a critical concern when dealing with children not only because the interviews are often traumatic for the child, but also because multiple interviews increase the chance that the children will be confused by unnecessarily suggestive questions. That, by statute, the initial risk-assessment interview is recorded does not, therefore, necessarily indicate that the purpose of the interview was to create a formalized statement for trial. Given the clear need to limit a child’s exposure to stressful and confusing interviews, and the accompanying need to accurately assess risks to the child, there is a compelling need for a single recorded assessment interview solely in order to best protect the health and welfare of the child.

Here, the interview of T.B. was initiated by a child-protection worker in response to a report of sexual abuse for the overriding purpose of assessing whether abuse occurred, and whether steps were therefore needed to protect the health ánd welfare of the child. In the interview, the child-protection worker established rapport with T.B., identified the child’s terms for human anatomy, made a touch and abuse inquiry, and closed the interview. If part of the purpose of this interview was to produce a statement for use at a future trial, such a purpose was at best incidental to the main purpose: assessing and responding to imminent risks to T.B.’s health and welfare. Much like the at-the-scene police questioning in Wright, the interview of T.B. “represent[s] a response to a call for assistance and preliminary determination of ‘what happened’ and whether there was immediate danger, rather than an effort to gather evidence for a future trial.” 701 N.W.2d at 813-14. Moreover, given T.B.’s very young age, it is doubtful that he was even capable of understanding that his statements would be used at a trial. As amicus American Prosecutors Research Institute makes clear, children of T.B.’s age are simply unable to understand the legal system and the consequences of statements made during the legal process.

Certainly, communications in initial-assessment interviews may very well evolve into testimonial statements. An interview with an older child who understands the law-enforcement consequences of his statement, or an interview with more significant law-enforcement involvement might both exhibit a greater purpose on the part of a declarant or government questioner to produce statements for use at a future trial. See, e.g., Vigil, 104 P.3d at 262-63 (determining that a statement was testimonial where the court indicated that the child understood the punitive consequences of his statements); R.A.S., 111 P.3d at 488, 490 (determining that a child’s statement was testimonial where the child was interviewed by an investigating police officer 3 days after an abuse incident). But we conclude that in this case, neither T.B. nor the child-protection worker were acting, to a substantial degree, in order to produce a statement for trial, and therefore T.B.’s statements in the assessment interview were not testimonial.

III.

Bobadilla also challenges certain evidentiary rulings made by the district court. Evidentiary rulings are committed to the trial court’s discretion and will not be reversed absent a clear abuse of discretion. State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000). And reversal is not warranted unless there is a reasonable doubt that the result would have been different had the evidence not been admitted. State v. Martin, 695 N.W.2d 578, 583 (Minn.2005) (citing State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002)).

First, Bobadilla argues that even aside from Confrontation Clause issues there were not sufficient “indicia of reliability” to admit T.B.’s interview statements. Hansen, 312 N.W.2d at 102. A court must consider “the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made” in determining whether there are sufficient indicia of reliability under Minn.Stat. § 595.02, subd. 3. Here, the trial court articulated several sound factors on which it relied in deciding to admit T.B.’s statements. Specifically, the court noted: (1) that the statement was made close in time to the event; (2) that the statement was unusual and consistent with T.B.’s prior reporting; (3) that the questions were not leading or suggestive; and (4) that neither the interviewer nor the detective had any reason to lie. We therefore conclude that the district court did not abuse its discretion by determining that the statements met the statutory requirements of reliability.

Second, Bobadilla contends that the testimony of the child-protection worker and the detective concerning the content of the videotaped interview with T.B. was needlessly cumulative under Minn. R. Evid. 403. However, the detective was not permitted to testify about the content of the interview, the child-protection worker’s testimony was received without objection, and error, if any, was harmless given that the jury saw the videotape itself.

Finally, Bobadilla asserts that the district court committed error by excluding exculpatory statements contained in his police statements. He argues that his consistent denials of the allegations were admissible as prior consistent statements under Minn. R. Evid. 801(d)(1)(B). The rule requires the speaker to be subject to cross-examination at trial. At the time the court ruled on the state’s motion in limine, the cross-examination requirement had not been satisfied. Again error, if any, in the exclusion of the exculpatory statements was harmless, particularly where the jury heard of his consistent denials through the testimony of his brother.

In summary, we hold that statements made by a young child in a risk-assessment interview conducted by a child-protection worker in accordance with the statutory scheme outlined in Minn.Stat. § 626.556 were not testimonial when neither the child nor the child-protection worker were acting, to a substantial degree, in order to produce a statement for trial. We also hold that Bobadilla was not deprived of a fair trial by the district court’s evidentiary rulings.

Affirmed in part, reversed in part, and judgment of conviction reinstated.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent. The court’s conclusion that T.B.’s out-of-court statements were not testimonial and therefore not admitted, at trial in violation of Bobadilla’s Sixth Amendment right to confront the witnesses against him is error. That conclusion is error because T.B.’s statement was a statement made as part of a police interrogation, in the presence of a police officer, to a government official who was taking the statement as a surrogate interviewer for the police.

In Crawford v. Washington, the United States Supreme Court, while not giving guidance as to what constitutes a testimonial statement; stated unequivocally that “[sjtatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Crawford Court was also concerned with statements given to government officers: “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct., 1354. This is' because government officers “could not always be trusted to safeguard the rights of the people.” Id. at 44, 67, 124 S.Ct. 1354. Similarly, “[ijnvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at 56 n. 7, 124 S.Ct. 1354. Moreover, the Supreme Court specifically stated that “interrogations by law enforcement officers fall squarely” within the concerns of the Sixth Amendment and expressed doubt as to the existence of . “neutral” government officers. Id. at 53, 66, 124 S.Ct. 1354.

According to the record, T.B.’s out-of-court statement was taken as part of an interview set up by a county child-protection worker at the request of a Willmar police detective. The interview took place at the Kandiyohi Law Enforcement Center and was conducted pursuant to Minn.Stat. § 626.556, subd. 10(a) (2004), which requires that, upon receipt of a report of a “violation of a crimihal statute involving sexual abuse *' * * the local law enforcement agency and local welfare agency shall coordinate the planning and execution of their respective investigation and assessment efforts to avoid a duplication of fact-finding efforts and multiple interviews.”

T.B.’s statements generated by the interview fit squarely within Crawford’s pronouncement that “[s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354. With respect to the child-protection worker’s involvement, the statements constitute “a formal statement” to a government official and amount to “testimony in a sense that * • * * a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354. While it is true that part of the purpose of the child-protection worker in conducting the interview was to assess T.B.’s need for treatment and protection, it cannot be ignored that another equally important purpose was to act as a surrogate interviewer for the corresponding police investigation.

Other courts have found that police involvement in scenarios factually similar to this case gave rise to testimonial statements. See, e.g., State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005) (holding statements given by children to a social worker were testimonial when police initiated social worker’s participation, requested that the interview take place, were actively involved in the investigation, and the identity of the suspect was known); see also, e.g., T.P. v. State, No. CR-03-0574, 2004 WL 2418045 (Ala.Crim.App. Oct. 29, 2004) (holding statements made to child-protection worker while police officer was present were testimonial), cert. denied (Mar. 11, 2005); People v. Sisavath, 118 Cal. App.4th 1396, 13 Cal.Rptr.3d 753 (Cal.Ct.App.2004) (holding when interview occurred after prosecution began and prosecutor was present during the interview, statements made to interviewer were testimonial), revieiv denied (Sept. 15, 2004); People v. Warner, 14 Cal.Rptr.3d 419 (Cal.Ct.App.2004) (determining interview was testimonial when a detective observed and one of the interview’s purposes was use as an investigative tool for prosecutions), petition for review on other grounds granted, 18 Cal.Rptr.3d 869, 97 P.3d 811 (2004); Somervell v. State, 883 So.2d 836 (Fla.Dist.Ct.App.2004) (deciding statement of autistic child given to a police officer at a child advocacy center was testimonial); In re Rolandis G., 352 Ill.App.3d 776, 288 Ill. Dec. 58, 817 N.E.2d 183 (2004) (holding statements made to a child-protection worker while police officer observed through one-way glass were testimonial), appeal pending (January Term 2005); State v. Mack, 337 Or. 586, 101 P.3d 349 (2004) (holding interview with protective services, arranged by police officers with police officers present, was testimonial). Like many of these cases, the investigation in this case had already started, the police were involved before the interview occurred, the identity of the suspect was known, the police initiated the interview and were involved in coordinating the interview, a police officer was present at the interview, and this was the only interview of T.B. conducted by the police as a result of their effort to comply with MinmStat. § 626.556, subd. 10(a). Simply put, the interview here was intended to facilitate the police investigation. Thus, T.B.’s statement as given to the child-protection worker and the Willmar police detective was per se testimonial under any definition of the term.

Although I conclude that T.B.’s statement was testimonial under any definition of that term, I nonetheless feel compelled to comment on the court’s analysis in concluding that the statement was nontesti-monial.

As support for its claim that T.B.’s statement was nontestimonial, the court makes an analogy to State v. Wright, 701 N.W.2d 802 (Minn.2005). In Wright, we concluded that statements made to police officers during on-scene police questioning following a 911 call were nontestimonial. The circumstances leading to the statement in this case are clearly distinguishable from the police questioning in Wright. In Wright, the police interviews at issue occurred when the police responded to a 911 call placed by the victims of a domestic assault. The victims were interviewed on the scene immediately after the assault occurred. Id. at 813. As such, the facts in Wright supported a conclusion that the victims’ statements were not testimonial because the police were responding “to a call for assistance” and making a “preliminary determination of ‘what happened’ and whether there was immediate danger, rather than an effort to gather evidence for a future trial.” Id. at 813-14.

That is not what happened here. Here, while T.B. was examined by a doctor at the hospital on Sunday, May 4, 2003, he was not interviewed by either the police or child-protection personnel until Friday, May 9, 2003, at the law enforcement center. Thus, there was no exigency here as there was in Wright. Moreover, because section 626.556, subdivision 10(a), gave the police only one opportunity to question T.B. directly, the questioning had to serve two functions: preliminary fact-finding and the collection of evidence for a future trial. Because of those, distinguishing facts, there is nothing in the Wright analysis that causes T.B.’s statement to become nontestimonial.

The court also relies on section 626.556, subdivision 10(a), for support, contending that T.B.’s interview was conducted for the purpose of child protection and that the method chosen was consistent with the legislative intent underlying' that section. The court further contends that any law enforcement purpose in participating in the interview was incidental 'to the child-protection purpose. The record before us belies these contentions. The record is clear that the child-protection worker arranged T.B.’s interview at the request of the Willmar police, that the interview took place at the law enforcement center, that a police detective was present during the interview, and that the interview was conducted to facilitate the police investigation, as well as assess the child’s need for protective services.

The court states: “Given the clear need to limit a child’s exposure to stressful and confusing interviews, and the accompanying need to accurately assess risks to the child, there is a compelling need for a single recorded assessment interview.” But the issue here is not the fact that the interview took place or even the manner in which the interview was conducted. The issue is whether the statements T.B. made during the interview were admissible at trial when T.B. was unavailable to testify and not subject to cross-examination. While the interview here was, in part, conducted for the purpose of protecting the health and welfare of the child, that purpose does not change the fact that the police involvement in requesting and participating in the interview was solely for the purpose of collecting potential evidence for a future trial.

In its effort to support the conclusion that the purpose of section 626.556 is to protect the health and welfare of the child, the court attempts to distinguish the factually similar Maryland case, Snowden. In Snowden, a Maryland statute allowed social workers to interview children suspected of having been the victim of sexual abuse and then, under certain circumstances, testify in place of the child using statements obtained during the interview. Snowden, 867 A.2d at 321. The Snowden court held that these statements were testimonial. Id. at 330. The facts of Snow-den are virtually indistinguishable from the facts in this case. The social worker in Snowden became involved in the case only after the police investigation had begun and only at the behest of law enforcement. Id. at 326-27. The police were present during the interview, which took place in a “[e]ounty-owned and operated facility unfamiliar to the children and used for the purpose of investigating and assessing victims of child abuse.” Id. at 327. Similarly, here, the child-protection worker only became involved after she was contacted by a police detective, a police officer was present during the interview, and the interview took place at the law enforcement center, in a child-friendly room unfamiliar to T.B., which was specifically designed for interviewing children alleged to have been abused. The only significant difference between the two statutes is that Minn.Stat. § 626.556, subd. 10(a), does not expressly authorize the admission of the statements obtained during interviews in a subsequent trial.

Thus, while it is true, as the court states, that the express purpose behind the statute in Snowden was to prepare testimony for possible use at a future trial, in the end the situation here is not substantially different. Section 626.556, subdivision 10(a), requires that a child sexual abuse victim be interviewed only once and that “the local law enforcement agency and local welfare agency * * * coordinate the planning and execution of their respective investigation and assessment efforts to avoid a duplication of fact-finding efforts and multiple interviews.” (Emphasis added.) Because of the limitations of section 626.556, subdivision 10, the joint interview of T.B. was law enforcement’s only opportunity to develop testimony from T.B. for possible later use at trial. T.B.’s statements were used in court against Bobadilla in the same manner that the statement in Snowden was used against that defendant. Here, as in Snowden, “[t]he interview questions posed by [the child-protection worker], and the responses elicited, were in every way the functional equivalent of the formal police questioning discussed in Crawford as a prime example of what may be considered testimonial.” Snowden, 867 A.2d at 325. Like the testimonial statements in Snowden, T.B.’s statements are also testimonial.

Because the child-protection worker and police detective worked in conjunction with one another and conducted a joint interview of T.B. pursuant to section 626.556, subdivision 10(a), and because T.B. was unavailable at trial and Bobadilla had no opportunity to cross examine T.B., admission of T.B.’s statements at trial constitute a per se violation of Bobadilla’s Sixth Amendment rights. While the statute itself is not unconstitutional, the admission of T.B.’s statements obtained pursuant to the statute is unconstitutional.

Finally, the court states that “in this case, neither T.B. nor the child-protection worker were acting, to a substantial degree, in order to produce a statement for trial, and therefore T.B.’s statements in the assessment interview were not testimonial.” This statement is more than a little troubling in that it assumes that the only government actor involved in T.B.’s interviews was the child-protection worker. That assumption, however, is not supported by the record. The statement wholly ignores the Willmar Police Department’s request for and participation in T.B.’s interviews.

In its opinion, the court eloquently articulates the need to, and importance of, protecting children. On the facts of this case, that important need conflicts with the Sixth Amendment, which, under our system of justice, must prevail.

Therefore, I dissent.

      . The Court acknowledged that various definitions of “interrogations" exist, but declined to clarify further, explaining that there was no need to reach a more precise- definition since the facts before it clearly qualified as an interrogation under any possible definition. Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. 1354.

      . See Hammon v. State, 829 N.E.2d 444, 457-58 (Ind.2005) (deciding that a wife’s statements to officers investigating a domestic abuse report were not testimonial where neither the police nor the wife were principally motivated by a desire to preserve the wife's statements for trial); People v. Griffin, 33 Cal.4th 536, 15 Cal.Rptr.3d 743, 93 P.3d 344, 372 n. 19 (2004) (determining that a victim's statement to a friend at school indicating that defendant had abused her was not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (determining that a victim's statement to a coworker that the defendant had threatened to kill her was not testimonial); State v. Barnes, 854 A.2d 208, 211 (Me.2004) (determining that statements by mother seeking "safety and aid” from police were not testimonial); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (N.Y.City Crim.Ct.2004) (determining that a typical 911-call situation is not testimonial because the declar-ant is essentially crying out for help, "not contemplating being a 'witness’ in future legal proceedings,” and that the government is similarly not "in contemplation of pursuing criminal charges against a particular person”); People v. Garrison, 109 P.3d 1009, 1011 (Colo.Ct.App.2004) (determining that a murder victim's statements to her manager that the defendant was harassing her were not testimonial), cert. denied, 2005 WL 878563 (Colo. Apr.18, 2005); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App.2004) (determining that a child's statements to parents reporting a "touching” were not testimonial), review denied, 902 So.2d 790 (Fla.2005). See also Crawford, 541 U.S. at 51, 124 S.Ct. 1354, explaining that "a person who makes a casual remark to an acquaintance does not” bear testimony. .

      . We note that a few courts have at least suggested that the declarant's perspective is the dispositive factor in the testimonial analysis, and that the perspective of the questioner, even a government questioner, is essentially irrelevant. See, e.g., United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004) (deciding a case involving statements made to confidential informants and determining, in dicta, that "the proper inquiry * * * is whether the de-clarant intends to bear testimony against the accused”); United States v. Saget, 377 F.3d 223, 228-29 (2d Cir.2004) (deciding that statements made to undercover officers were not testimonial, and speculating that "the Court would use the reasonable expectation of the declarant as the anchor of a more concrete definition of testimony"), cert. denied, 543 U.S. 1079, 125 S.Ct. 938, 160 L.Ed.2d 821 (2005); and see generally Richard D. Friedman, The Conundmm of Children, Confrontation, and Hearsay, 65 Law & Contemp. Probs. 243, 251 (Winter 2002) (advocating a declarant-centered approach to Confrontation Clause analysis). However, in Wright we rejected an approach that did not consider both the perspective of the government questioner and the perspective of the declarant. See 701 N.W.2d at 811-14. We do not think that an approach that makes the declarant's perspective dispositive gives adequate consideration to Crawford's fear of governmental abuses. See 541 U.S. at 56 n. 7, 67, 124 S.Ct. 1354.

      . The observation that producing a statement for trial must be at least a substantial purpose of a testimonial statement can also be inferred from courts’ disparate treatment of similar factual situations. Compare Lopez v. State, 888 So.2d 693, 699-700 (Fla.Dist.Ct.App.2004) (determining that an excited utterance made at the scene of a crime was testimonial where the declarant making the statement to a police officer knew that his statement would be used at trial, explaining that the key was "the purpose for which the statement was made”); with Hammon, 829 N.E.2d at 456-58 (determining that an excited utterance made at the scene of a crime was not testimonial where neither the police officer taking the statement nor the declarant were "principally motivated by a desire to preserve the statement" for trial). Similarly, compare State v. Powers, 124 Wash.App. 92, 99 P.3d 1262, 1266 (2004) (determining that a 911 call was testimonial where the purpose of the call was mainly to report a crime, not to gain urgent assistance), with Moscat, 777 N.Y.S.2d at 879-80 (determining that a 911 call was not testimonial where the declarant's principal purpose was crying out for help, and where the declarant was "not contemplating being a ‘witness’ in future legal proceedings”).

      . Like many Crawford issues, it remains a lively question whether the Confrontation Clause is concerned with statements made to government officers only, or with statements between any questioners or declarants who are acting "with an eye toward trial.” Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 518 (Jan. 2005). In this case, we do not need to address whether statements not involving government officers may be testimonial, and so we express no opinion on this question.
      But it is clear that, at least in some situations, statements taken by non-police-officer government officials could be testimonial. See Crawford, 541 U.S. at 66, 124 S.Ct. 1354 (stating that "[t]he Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by ‘neutral’ government officers”).

      . See, e.g., Bordeaux, 400 F.3d at 556 (stating that "the purpose of the interview (and by extension, the purpose of the statements) is disputed, but the evidence requires the conclusion that the purpose was to collect information for law enforcement”); People v. Warner, 119 Cal.App.4th 331, 14 Cal.Rptr.3d 419, 429 (2004) (holding that a child’s statements in an interview with a trained child-interview specialist were testimonial where one of the purposes of the interview was "as an investigative tool for criminal prosecutions”), rev. granted on other grounds, 18 Cal.Rptr.3d 869, 97 P.3d 811 (Cal.2004); In re T.T., 351 Ill. App.3d 976, 287 Ill.Dec. 145, 815 N.E.2d 789, 802 (2004) (determining that statements by a child to a family-services interviewer were testimonial where the interviewer was acting "with an eye toward prosecution”); Mack, 101 P.3d at 352 (holding that statements made by a child to a human-services worker were testimonial where the human-services worker "was serving as a proxy for the police”); Purvis v. State, 829 N.E.2d 572, 579 (Ind.Ct.App.2005) (holding that statements of a child to an officer were testimonial because "[t]he rationale of the rule in Crawford is to exclude from evidence statements that have not been cross-examined that were gathered for the purpose of use at a later trial”). See also Mosteller, 39 U. Rich. L.Rev. at 538 (examining post-Crawford cases and observing that statements made by children to child-protection workers were determined to be testimonial when the evidence showed that “the government was purposefully creating formalized statements for potential use at trial”).

      . We also find it somewhat unlikely that Crawford's aim was to discourage the recording of these statements. In fact, "mechanical recording, if done fully and well, may eliminate” concerns of governmental manipulation of witnesses' statements. Mosteller, 39 U. Rich. L.Rev. at 571. Further, "[w]hen statements are accurately recorded in their entirety, then manipulation of what was said is not possible * * * [and] this particular concern is not eliminated — but exacerbated — by the failure to record the statement when it is made.” Id.

      . "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers? design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

      . Under a plain reading of this statutory language, it is clear that the "investigation” referred to is the police investigation and that the "assessment” referred to is the one being conducted by the social welfare agency.

      . Büt compare cases in which medical per-sonnfel, and not government officers or police officers, were in charge of taking the statement' — some of these cases hold that statements to medical professionals are nontesti-monial due to the medical purpose of the interview. See, e.g., State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004); State v. Fisher, 130 Wash.App. 1, 108 P.3d 1262 (2005).


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Tracy E. MITCHELL, a Minnesota Attorney, Registration No. 12560X.
    No. A06-180.
    Supreme Court of Minnesota.
    Feb. 14, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Tracy E. Mitchell committed professional misconduct warranting public discipline, namely, neglect of a client matter and failure to cooperate with the Director’s investigation, in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.5(a), 4.1, 8.4(d), and 8.1(a)(3), as amended to Minn. R. Prof. Conduct 8.1(b), effective October 1, 2005.

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and two years of supervised probation, subject to the following conditions:

(a) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within two weeks of the date of this order, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after - diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph (b) below. Respondent shall make active client files available to the Director upon request.
(b) Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor, by the first day of each month during probation, an inventory of all active client files. For each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(c) Respondent shall initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters respondent is handling, and that shall ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(d) Should the personal representative in the Hanson estate request that respondent continue to represent the estate, respondent shall timely file all necessary paperwork with the probate court to close out the estate and shall do this at no further cost to the estate. Respondent shall notify his supervisor once the probate has been closed or that his representation of the estate has been terminated.
(e) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(f) Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(g) Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Tracy E. Mitchell is publicly reprimanded and placed on supervised probation for a period of two years, subject to the conditions set forth above.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael T. TIERNEY, a Minnesota Attorney, Registration No. 141070.
    No. A05-2559.
    Supreme Court of Minnesota.
    Feb. 14, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael T. Tierney committed professional misconduct warranting public discipline, namely, three separate incidents of shoplifting since 1996, culminating in two criminal convictions, in violation of Minn. R. Prof. Conduct 8.4(b).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend the appropriate discipline is a six-month suspension, stayed for two years, subject to additional conditions.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael T. Tierney is suspended from the practice of law for six months from the date of this order, suspension to be stayed for two years subject to the following conditions:

a. If, at any time during the two-year stayed suspension period, respondent is charged with shoplifting, theft, or any other form of criminal conduct involving dishonesty, respondent shall be immediately suspended without further hearing for a period of six months. Should respondent be found or plead guilty, respondent shall be subject to such additional disciplinary proceedings as may be warranted by the nature of the criminal conduct.

b. Respondent shall continue current treatment with his licensed consulting psychologist or any other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist. Upon the Director’s request, respondent shall provide authorization for release of information and documentation sufficient to verify his compliance.

c. During the two-year stayed suspension period, respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention.

d. Respondent shall successfully complete the professional responsibility portion of the state bar examination within one year of the date of this order.

e. Respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice