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

text:
    STATE of Minnesota, Respondent, v. Andre ROBINSON, Appellant.
    No. A04-840.
    Supreme Court of Minnesota.
    July 20, 2006.
    Rehearing Denied Aug. 4, 2006.

      Mike Hatch, Minnesota Attorney General, Saint Paul, MN, Amy Klobuchar, David C. Brown, Hennepin County Attorney’s Office, Minneapolis, MN, for Respondent.
    Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Appellant Andre Robinson appeals from his conviction of third-degree assault against F.T., the mother of his children. At trial F.T. testified that Robinson caused her injuries but did so accidentally, which was contrary to what she initially told two hospital nurses. Robinson argues that the district court erred in allowing the substantive admission of F.T.’s statements to the nurses under the medical diagnosis and treatment hearsay exception, Minn. R. Evid. 803(4). The court of appeals agreed, but concluded that the statements were admissible under the residual hearsay exception, Minn. R. Evid. 803(24), and as nonhearsay statements of identification under Minn. R. Evid. 801(d)(1)(C). State v. Robinson, 699 N.W.2d 790, 795-99 (Minn.App.2005). We affirm the court of appeals on the residual hearsay exception.

At around 8:55 a.m. on April 12, 2003, F.T. checked into Abbott Northwestern Hospital for treatment of several injuries, the most serious of which was swelling of her left eye. She told one of the treating-nurses that the father of her children and former boyfriend, Robinson, hit her in the eye with an open hand. F.T. was diagnosed with a blowout fracture of her eye orbit and was referred to an ophthalmologist for follow-up treatment. About 10 days after the incident F.T. went to the Domestic Abuse Service Center for information about obtaining an order for protection against Robinson. The same day, F.T. also met with a police officer and gave a taped statement detailing the assault by Robinson. She also signed a medical release form that said “THIS INFORMATION IS TO BE RELEASED FOR THE PURPOSE OF * * * Police Investigation.”

F.T. did not seek an order for protection and began living with Robinson again. About a month after the incident F.T. learned that Robinson was being charged and she called the prosecutor with a new version of how her eye orbit fracture occurred. F.T. acknowledged that she and Robinson had argued and that at one point she had gone into the bathroom. But she said that her eye was injured by accident when Robinson opened the bathroom door and the door struck her eye. F.T. also sent a notarized letter to the public defender’s office detailing this account.

Robinson was charged with third-degree assault, Minn.Stat. § 609.223, subd. 1 (2004), and interference with an emergency call, Minn.Stat. § 609.78, subd. 2 (2004). At a pretrial hearing, the state provided the court with copies of six documents: (1) the nurses’ assessment form completed by nurse J.W.; (2) the nurses’ assessment form completed by nurse A.S.; (3) the police report of an interview with F.T. on April 12, 2003; (4) the transcript of the police statement taken from F.T. on April 22, 2003; (5) a memorandum from an investigator in the Hennepin County Attorney’s Office summarizing a telephone call from F.T. on June 26, 2003; and (6) a letter from F.T. to the Office of the Public Defender dated August 25, 2003. After extensive argument, the court ruled that F.T.’s statements to police were inadmissible as hearsay and the court reserved ruling on the memorandum of the telephone call from F.T. and F.T.’s letter to the public defender. But the court determined that F.T.’s statements to the nurses were admissible substantively under the medical diagnosis hearsay exception, Minn. R. Evid. 803(4). The ruling contemplated that the nurses would be permitted to use the assessment forms to refresh their recollections, but the forms would not be admitted as exhibits. The court rejected the state’s arguments that the statements to the nurses were also admissible as non-hearsay statements of identification, Minn. R. Evid. 803(4), and under the residual hearsay exception, Minn. R. Evid. 803(24).

At trial the state first introduced testimony from the staff nurse, J.W. J.W. testified that as a staff nurse she is responsible for interviewing patients and conducting a preliminary physical assessment. She testified that a necessary component of this assessment is determining how the injury occurred. J.W. documented her actions and findings on a one-page form titled “Emergency Department Nursing Assessment and Treatment.”

J.W. used the assessment form to refresh her memory because she had no independent recollection of the incident. She said that F.T.’s left eyelid was swollen and she was holding it shut with an ice pack. J.W. asked F.T. what happened and F.T. replied, “[M]y kids’ dad came over drunk; got to argue with me and' then open hand slapped me really hard bn the face.” J.W. asked if this had ever happened before. F.T. responded that she “never had been assaulted before.” J.W. also testified that she wrote down: “[P]a-tient says he wouldn’t let me out. He fell asleep and I left with the kids.”

After completing the assessment form, J.W. notified the on-duty nurse practitioner, A.S. A.S. testified that a nurse practitioner has more training than a staff nurse and therefore is allowed to diagnose and treat cases, like F.T.’s, that are less complex. A.S. documented her examination of F.T. on a more detailed form titled “ED/MD Evaluation and Treatment.” A.S. refreshed her memory with this form because she also had no independent recollection of the incident.

A.S. testified that she observed swelling over F.T.’s left eye, an abrasion on her nose next to her eye, a scratch on her eyeball, and a chipped tooth. A.S. asked F.T. why she came to the hospital and F.T. told her that she had been assaulted. When asked how she was assaulted, F.T. said she had been slapped in the face. Although A.S.’s assessment form states the identity of F.T.’s abuser as her “boyfriend,” A.S. testified that F.T. did not say who slapped her.

A.S. ordered a CT scan and the neurora-diologist told her that F.T. had a blowout fracture of the left orbit, the bone around the eye. A.S. treated the eye scratch with eye drops and referred F.T. to an ophthalmologist to treat the fracture. There is no indication that the hospital staff conducted any other follow-up treatment.

After presenting the testimony of the two nurses, the state called F.T. to testify. She stated that she was sleeping early in the morning on April 12, 2003, when Robinson started knocking loudly on her door. She let him in and they began arguing about a woman Robinson had been with. She eventually went into the bathroom and they began arguing through the closed door. After the argument deescalated, F.T. peeked out the door to see if Robinson was still there and Robinson pushed the door open, causing it to hit her. She described it as an accident. F.T. said they went to sleep and when she woke up a few hours later her eye still hurt so she drove herself and their two kids to the hospital.

F.T. admitted .that, she had made the accusatory statements to the nurses, but said she lied because she was mad at Robinson for being out with another woman and wanted to get him in trouble. She also admitted that she went to the Domestic Abuse Service Center 10 days later to get information on an order for protection against Robinson, but said she did not actually obtain an order. She explained that she needed time away from him and wanted him to think that he had to stay away. As for the medical release form, F.T. said she signed a form but thought it was authorizing the release of her medical information to her doctor or insurance company.

To discredit F.T.’s new version of how she was injured, the state presented testimony from the neuroradiologist who treated her. He testified that F.T.’s fracture was the result of pressure being applied to her eyeball, which created force in the socket that caused two thin bones in her orbit walls to break. He testified that this type of injury can only be caused by a rounded object, like a ball, fist or vehicle dashboard. He admitted that he has never personally treated an orbit fracture that he knew was caused by an open hand, but testified that it is theoretically possible and has been documented in scholarly articles. He also testified that it was not possible for the edge of a door to have caused F.T.’s injury.

The jury found Robinson guilty of third-degree assault. He appealed his conviction, claiming, among other things, that the district court erroneously admitted F.T.’s two statements to the nurses. Robinson, 699 N.W.2d at 792-93. The court of appeals affirmed, agreeing that the statements were admissible but on different grounds. Id. at 799. The court held the statements were not admissible under the medical diagnosis exception but were admissible under both the residual exception to hearsay and as nonhearsay statements of identification. Id. at 797, 799. We granted review.

I.

At the outset it is helpful to identify the specific portion of F.T.’s statements to which Robinson objects. The portion that the district court and the court of appeals focused on was F.T.’s identification of Robinson as the person who caused her injury. At oral argument Robinson seemed to suggest that he is also objecting to the portions of F.T.’s statements that describe the mechanism of her injury as a hand slap. On this latter aspect, the law is clear.

The medical diagnosis exception to the hearsay rule applies to “[sjtatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Minn. R. Evid. 803(4) (emphasis added). The rationale behind the rule is “the patient’s belief that accuracy is essential to effective treatment.” 2 John W. Strong, et ah, McCormick on Evidence § 277, at 247 (4th ed.1992). This “special assurance of reliability * * * also applies to statements concerning the cause” of the condition. Id. Thus F.T.’s description of a hand slap as the mechanism of her injury is admissible under the medical diagnosis exception provided in Rule 803(4).

As to the portions of F.T.’s statements that identified Robinson as the person who caused her injury, the district court did not apply the elements of Rule 803(4) to the specific circumstances surrounding the making of F.T.’s statements. Instead, the court adopted a categorical rule of admissibility under the medical diagnosis exception for statements of identification by victims of domestic abuse. The court reasoned that “the medical value goes to identifying the source of the injury in order to protect the * * * victim from the injury [and] to counsel the victim.” Because the district court made a strictly legal determination without exercising discretion, we review its decision de novo. See Shirk v. Shirk, 561 N.W.2d 519, 520 (Minn.1997).

In contrast to the general notion that statements explaining the cause of an injury are admissible under the medical diagnosis exception, statements attributing fault, including statements identifying the accused perpetrator, are ordinarily not admissible. See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980); Strong, supra, § 277, at 248. The state concedes that this is the general rule, but compares statements of. identification by domestic abuse victims to statements of identification by victims of child sexual abuse that were held to be admissible under the medical diagnosis exception in several cases. See United States v. Renville, 779 F.2d 430, 437-39 (8th Cir.1985); State v. Salazar, 504 N.W.2d 774, 777-78 (Minn.1993); State v. Larson, 453 N.W.2d 42, 47 (Minn.), judgment vacated on other grounds, 498 U.S. 801, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990). The district court accepted this argument because it believed that “a domestic partner * * * as an abuser would be * * * the equivalent of the parent who is abusing the child.”

The state and the district court proceeded under the assumption that statements of identification by child sexual abuse victims are always admissible under the medical diagnosis exception. We have not adopted such a broad rule. In Larson we upheld the admission of an extrajudicial statement of identification by a four-year-old child under the medical diagnosis exception. 453 N.W.2d at 43, 47. Without discussing the propriety of a categorical rule of admissibility, we cited two cases that admitted similar statements and simply said, “We agree with the reasoning of these cases on this particular point.” Id. at 47 (citing United States v. DeNoyer, 811 F.2d 436, 438 (8th Cir.1987), and Goldade v. State, 674 P.2d 721, 725 (Wyo.1983)).

The Eighth Circuit subsequently interpreted Larson as adopting a categorical rule. See Dana v. Dep’t. of Corr., 958 F.2d 237, 239 (8th Cir.1992). But our subsequent decision in Salazar undercuts this interpretation. In Salazar we affirmed the admission of a statement by a five-year-old child to a social worker accusing the defendant of sexual abuse. 504 N.W.2d at 776, 778. In doing so, we recognized that “[t]he mere fact that a child’s statements are made to a doctor does not render the child’s statements admissible under [Rule] 803(4).” Id. at 777. We said that the “statements are admissible only if the evidence suggests that the child knew she was speaking to medical personnel and that it was important she tell the truth.” Id. Thus we recognized the importance of examining each statement individually and applying the facts on a case-by-case basis.

The court of appeals declined to adopt a categorical rule of admissibility for statements of identification by victims of domestic abuse. See Robinson, 699 N.W.2d at 795. We are similarly reluctant to adopt a categorical rule of admissibility under the medical exception.

We are very familiar with the legal issues concerning domestic violence. As early as September 1989, our Task Force on Gender Fairness in the Courts alerted us to the thousands of cases of domestic abuse reported each year and the critical need to assure that domestic abuse victims receive both civil and criminal legal relief. Minnesota Supreme Court Task Force for Gender Fairness in the Courts, 15 Wm. Mitchell L.Rev. 829, 871-91 (1989). As the task force noted, the legislature has enacted progressive domestic abuse laws. Id. at 872. Our case law has also recognized the unique legal needs of victims of domestic violence.

But we are not as familiar with the medical issues concerning domestic violence. We are not able to determine, by judicial notice or general knowledge, whether the notion that the identification of the perpetrator of domestic violence is reasonably pertinent to medical diagnosis and treatment is generally accepted in the medical profession. To this extent, the medical exception to the hearsay rules depends, in the first instance, on the views of the medical profession, not on the views of the courts. We can speculate that the medical profession may have evolved to recognize the importance of treating the whole person of a victim of domestic violence, including the emotional and psychological effects of past violence and the potential of future violence. But we can do no more than speculate. The record before us contains no medical expert testimony on the scope of the customary treatment of a victim of domestic violence or whether the identity of the domestic abuser is reasonably pertinent to that treatment.

On appeal, the state relies heavily on a 1992 publication by the American Medical Association that concludes “[djomestic violence and its medical and psychiatric se-quelae are sufficiently prevalent to justify routine screening of all women patients in emergency, surgical, primary care, pediatric, prenatal, and mental health settings.” Am. Med. Ass’n, Diagnostic and Treatment Guidelines on Domestic Violence 8 (March 1992), http://www.ama-assn.org/amal/pub/upload/mm/386/domes-ticviolence.pdf, hereinafter “AMA Guidelines”. The stated goals of the publication are to familiarize hospital staff with the magnitude of the domestic violence problem, help them identify domestic violence and its impact on a patient’s health and well-being, provide them with interviewing strategies, provide them with information on referral options, and familiarize them with the legal aspects of providing medical care to domestic violence victims. Id. at 5.

But the AMA Guidelines contain a specific disclaimer that they “are not intended to be construed or to serve as a standard of medical care.” Id. at 2. Apparently, they impose no obligations on health care providers in collecting information on domestic violence, in providing emotional or psychological treatment, or even in referring victims for this type of care. See id. In short, although the Guidelines suggest domestic violence screening, they do not state that such screening is reasonably pertinent to medical diagnosis or treatment.

Moreover, the AMA Guidelines are evi-dentiary in nature and were not made a part of this record. See Hinneberg v. Big Stone County Hous. & Redev. Auth., 706 N.W.2d 220, 224 (Minn.2005) (striking an email, letter, and other statistical information from briefs because it was evidentiary in nature and was not in the record). They also do not constitute the type of information that is subject to judicial notice. See Minn. R. Evid. 201(b) (defining a judicially noticed fact as a fact generally known or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”); State v. Friberg, 435 N.W.2d 509, 519 (Minn.1989) (Popovich, J., dissenting).

We conclude that the categorical rule of admissibility that the state urges us to adopt is too broad. It ignores variables such as the seriousness of the assault, the frequency of the abuse against the victim, the type of domestic relationship, or the presence or absence of emotional or psychological harm. These variables can affect the pertinence of a statement of identification to medical diagnosis or treatment. See AMA Guidelines, supra, at 5 (defining domestic violence as “a pattern of coercive behaviors that may include repeated battering and injury, psychological abuse, sexual assault, progressive social isolation, deprivation, and intimidation”).

Turning to the record before us, the state did not present evidence of a pattern of coercive behavior, repeated battering, or psychological abuse; that F.T. displayed or sought treatment for emotional or psychological harm; or that the nurses were concerned about F.T.’s emotional or psychological well-being. And there is no medical expert testimony explaining why Robinson’s identity as the assailant was relevant to the diagnosis or treatment of F.T.’s eye injury.

We do not foreclose the possibility that we might in the future adopt a properly limited categorical rule of admissibility under the medical exception to hearsay for statements of identification by victims of domestic violence. Nothing in this decision should be interpreted as preventing or discouraging hospitals from conducting routine screening for domestic abuse for any or all patients. And we do not suggest that accusations by victims of domestic abuse are unreliable. We only hold that where, as here, there is an insufficient evidentiary foundation to establish that the identity of the person who caused an injury was reasonably pertinent to the medical diagnosis or treatment of that injury, the statement of identity is not admissible under Rule 803(4).

II.

Having concluded that the district court erred in ruling F.T.’s statements admissible under the medical exception, we now turn to the question of whether the error was harmless. Erroneous admission of evidence that does not have constitutional implications is harmless if there is no “reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994). The state argues that the error was harmless because F.T.’s statements of identification were admissible on other grounds, either (1) as non-hearsay statements of identification under Minn. R. Evid. 801(d)(1)(C), or (2) under the residual hearsay exception, Minn. R. Evid. 803(24).

A. Nonhearsay Statement of Identification, Minn. R. Evid. 801(d)(1)(C)

Under Minn. R. Evid. 801(d)(1)(C) “[a] statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification.” The issue here is over the definition of “prior identification.”

The court of appeals relied on its prior decision in State v. Hogetvedt, 623 N.W.2d 909, 913-14 (Minn.App.2001), and held that Rule 801(d)(1)(C) is not limited to police lineups, showups, or other similar procedures, but extends to any statement identifying an offender, known or unknown, so long as the identification satisfies the reliability requirement. Robinson, 699 N.W.2d at 796-97. The state acknowledges that the “vast majority of cases” apply Rule 801(d)(1)(C) in the context of a police lineup, showup, or other similar procedure, but asks this court to affirm the court of appeals because there is nothing in the rule specifically limiting its application to these situations. We decline to do so.

Robinson makes an important distinction between an “identification” of an unknown offender, which is covered by Rule 801(d)(1)(C), and an “accusation” of a known offender, which is not. See also United States v. Kaquatosh, 242 F.Supp.2d 562, 565 (E.D.Wis.2003). The'rationale behind the rule “stems from the belief that if the original identification procedures were conducted fairly, the prior identification would tend to be more probative than an identification at trial.” Minn. R. Evid. 801(d)(1) comm. cmt. — 1989. This rationale applies to cases involving the prior identification of an unknown offender, where the in-court identification is so highly suggestive that it would be misleading if the jury were allowed to believe that this was the witness’s only identification of the offender. Rule 801(d)(1)(C) was adopted to remedy this unique problem. But in the case of a known offender, we see no reason to prefer a witness’s out-of-court accusation over his or her in-court accusation. We hold that Rule 801(d)(1)(C) does not extend to the out-of-court accusation against an offender whose identity was well-known to the victim.

B. Residual Hearsay Exception, Minn. R. Evid. 803(24.)

The residual hearsay exception admits statements

not specifically covered by any of the foregoing [hearsay] exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 803(24). The state relies on our decision in State v. Ortlepp, where we cited four reasons for affirming the substantive admission of a police confession by the defendant’s co-conspirator who recanted at trial because he said his statement was coerced and thus not true. 363 N.W.2d 39, 42, 44 (Minn.1985). The state seems to interpret this as establishing a four-factor test for admissibility of any evidence under Rule 803(24).

We have made clear that the proper analysis under the residual exception is to use “the ‘totality of the circumstances’ approach, looking to all relevant factors bearing on trustworthiness” to determine whether the extrajudicial statement has “circumstantial guarantees of trustworthiness” equivalent to the other Rule 803 hearsay exceptions. See State v. Byers, 570 N.W.2d 487, 492 (Minn.1997) (interpreting the catch-all provision under Minn. R. Evid. 804(b)(5)); see also State v. Edwards, 485 N.W.2d 911, 915 (Minn.1992) (examining the circumstances of the statement admitted under Rule 803(24)); Ortlepp, 363 N.W.2d at 44 (explaining that Rule 804(b)(5) and 803(24) are identical). The four factors “test” we cited in Ortlepp was an application of the totality of the circumstances approach to satisfy the “equivalent circumstantial guarantees of trustworthiness” element of Rule 803(24).

Robinson points out that the district court specifically ruled F.T.’s statements were not admissible under the residual exception. Robinson argues that we should give deference to this determination. But the only factor that the district court mentioned as a consideration bearing-on trustworthiness was that the testimony by the neuroradiologist supported F.T.’s extrajudicial version of how the injury occurred. The district court believed that it could not consider this “corroborating” evidence — as distinguished from evidence of trustworthiness surrounding the making of the statements — because of the United States Supreme Court’s interpretation of the Confrontation Clause in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

The Confrontation Clause does not apply here because, unlike the declar-ant in Wright, F.T. testified and was subject to cross-examination. See id. The district court determined that Wright is controlling even when the declarant testifies because “Confrontation arises whenever you have a statement that was not confronted at the time it was originally made.” But this reasoning has been rejected by the Supreme Court. “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004); see also California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (holding Confrontation Clause was not violated if declarant testifies and is subject to cross-examination); Oliver v. State, 502 N.W.2d 775, 778 (Minn.1993) (“[TJhere is no confrontation problem presented by the admission of the prior statement as substantive evidence because [the declarant] testified.”); Ortlepp, 363 N.W.2d at 44 (same); State v. Gustafson, 266 N.W.2d 878, 879 (Minn.1978) (same). Thus, the Confrontation Clause poses no barrier to our consideration of evidence corroborating F.T.’s statements.

Because the district court incorrectly determined that it could not consider the evidence corroborating F.T.’s statements of identification and failed to identify or consider any other relevant factors bearing on trustworthiness, we afford no deference to its decision on the residual exception. In the ordinary course, we could remand the issue to the district court to exercise discretion. But, because the facts relevant to trustworthiness are undisputed and the applicability of the residual exception arises in the context of a harmless error analysis, it is appropriate for us to determine admissibility of the statements under Rule 803(24) as a legal issue. See Oliver, 502 N.W.2d at 778-79 (holding defendant had “no ground for complaint about” admission of a prior inconsistent statement to impeach a recanting witness because the statement was admissible substantively under the residual exception); Edwards, 485 N.W.2d at 915 (holding even if the district court was correct that the extrajudicial statements were not admissible under the excited utterance exception, it abused its discretion in excluding them because they were admissible under the residual exception).

Our independent review of the record persuades us that F.T.’s statements contain sufficient circumstantial guarantees of trustworthiness to conclude that they were admissible under the residual exception. First, F.T. volunteered her statement to the nurse without suggesting or leading questions. Second, F.T.’s identification of Robinson as the person who caused her injury is reliable because it remained consistent throughout both of F.T.’s versions of what happened. Only the mechanism of injury changed. Third, F.T. had no motive to lie to the nurse. Her stated reason for lying — to get Robinson in trouble — is questionable because she did not call the police; the hospital did. And there is no evidence that F.T. knew that identifying her abuser to a nurse would start the chain of events that led to police involvement. Fourth, F.T. repeated consistent versions of her statement to two different nurses within a short period of time. Fifth, there are at least three factors that strongly discredit her recanted version: (1) the uncontradicted medical testimony that F.T.’s eye injury could not have been caused by the edge of a door; (2) F.T.’s admission at trial that she has reconciled with Robinson and that she needs him to help raise their two children (i.e., she had a motive to falsely recant); and (3) an inconsistency in F.T.’s recanted version. Finally, F.T.’s extrajudicial statement was strongly corroborated by four other items of evidence: (1) F.T.’s trip to obtain information on getting an order for protection 10 days after the alleged assault; (2) F.T.’s agreement to sign the medical release form for purposes of a police investigation; (3) the neuroradiologist’s testimony supporting F.T.’s first version of how her eye was injured; and (4) F.T.’s consistent statement to police 10 days after the incident.

Because F.T.’s statements were admissible under the residual exception, the district court’s error in adopting a categorical rule of admissibility for statements of identification by domestic abuse victims under the medical diagnosis exception was harmless.

Affirmed.

ANDERSON, RUSSELL A., Chief Justice

(concurring).

I concur in the result but write separately because I would hold that F.T.’s statements identifying Robinson as the person who caused her injury were admissible under the medical diagnosis and treatment exception to the hearsay rule, Minn. R. Evid. 803(4). Because I believe these statements were admissible under Rule 803(4), I would not reach the issue of their admissibility under Minn. R. Evid. 803(24) or Minn. R. Evid. 801(d)(1)(C).

As a preliminary matter, I disagree with the majority’s conclusion that de novo review is appropriate. Typically, we review district court rulings admitting hearsay statements for abuse of discretion. See State v. Henderson, 620 N.W.2d 688, 696 (Minn.2001). In this case, however, the majority asserts that our review should be de novo because the district court “adopted a categorical rule of admissibility under the medical diagnosis exception” instead of applying the elements of Rule 803(4).

I do not agree with the majority’s characterization of the district court’s ruling. Rather than adopting a categorical rule of admissibility, the district court stated that its ruling admitting F.T.’s statements was intended to be “very narrow.” Prior to ruling, the district court heard extensive argument on the admissibility of the statements, during which the court focused on the critical issue under Rule 803(4)— whether the identity of F.T.’s abuser was pertinent to her medical diagnosis or treatment. That the district court specifically asked the parties to pinpoint the aspects of F.T.’s treatment affected by the nurses’ knowledge of the identity of her abuser reveals that the court focused on the proper criteria under Rule 803(4) and the rule’s application to the case at bar. Because the district court exercised its discretion in deciding that identity was reasonably pertinent to diagnosis or treatment in this case, the court’s ruling should “not be overturned on appeal absent a clear abuse of discretion.” State v. Martin, 695 N.W.2d 578, 583 (Minn.2005). Applying this standard of review, I conclude that the district court did not abuse its discretion in admitting F.T.’s statements under Rule 803(4).

Minnesota Rule of Evidence 803(4) admits as an exception to the hearsay rule:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

F.T. made the disputed statements to a nurse for the purpose of obtaining medical treatment, and the statements described the inception of her injury. Thus, the key question under the rule is whether F.T.’s statements were “reasonably pertinent to diagnosis or treatment.”

We have held that in a child sexual abuse case a victim’s statements identifying her abuser are admissible under Rule 803(4) because identity is pertinent to medical treatment in such cases. State v. Larson, 453 N.W.2d 42, 47 (Minn.1990), vacated on other grounds, 498 U.S. 801, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990). In Larson, we adopted the Eighth Circuit’s reasoning that the nature and extent of the psychological effects of child sexual abuse and their proper treatment often depend on the identity of the abuser. Id. (citing United States v. DeNoyer, 811 F.2d 436, 438 (8th Cir.1987)); see also United States v. Renville, 779 F.2d 430, 436 (8th Cir.1985) (“Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment.”). Similarly, in State v. Richards, we considered the admissibility of a victim’s statements to a counselor that the victim’s half brother beat her and that she was afraid of him. 552 N.W.2d 197, 201, 209 (Minn.1996). We upheld the district court’s ruling that the statements were admissible under Rule 803(4). Richards, 552 N.W.2d at 209.

Courts in other jurisdictions have ruled along the lines of Larson and Richards, recognizing that statements identifying an abuser as a family or household member are reasonably pertinent to medical diagnosis and treatment. In a rape ease, the Tenth Circuit held that the adult victim’s statements to a physician identifying her husband as the perpetrator were admissible under the medical diagnosis and treatment hearsay exception. United States v. Joe, 8 F.3d 1488, 1495 (10th Cir.1993). The court explained:

[T]he identity of the abuser is reasonably pertinent to treatment in virtually every domestic sexual assault case, even those not involving children. All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician’s treatment will necessarily differ when the abuser is a member of the victim’s family or household.

Id. at 1494-95 (footnote omitted). The court concluded that a “domestic sexual abuser’s identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser’s identity becomes ‘reasonably pertinent’ to the victim’s proper treatment.” Id. at 1495.

The Wyoming Supreme Court has extended the reasoning of Joe to cases involving domestic physical abuse with no sexual component. Oldman v. State, 998 P.2d 957, 962 (Wyo.2000). The court in Oldman observed that “[tjhere is no logical reason for not applying [the] rationale [of Joe ] to non-sexual, traumatic abuse within a family or household, since sexual abuse is simply a particular kind of physical abuse.” Id. The court thus concluded that the victim’s statements to a physician were “consistent with the purpose of promoting diagnosis and treatment” and that the assailant’s identity was relevant to treatment of the victim. Id. The Washington Court of Appeals, too, has held that statements identifying a family or household member as the perpetrator of a nonsexual physical assault are reasonably pertinent to treatment. State v. Price, 126 Wash.App. 617, 109 P.3d 27, 39 (2005) (“A physician’s treatment will necessarily differ when the abuser is a member of,the victim’s family or household * * *.”).

I agree with the reasoning of Oldman and Price and see no principled way to distinguish the domestic physical abuse in this case from the sexual abuse in Larson and the physical abuse in Richards. As with child sexual abuse, domestic physical abuse entails more than physical injury; it frequently precipitates psychological and emotional problems requiring specific treatment. See Am. Med. Ass’n, Diagnostic and Treatment Guidelines on Domestic Violence 10 (March 1992), http://www.ama-assn.org/amal/pub/upload/mm/386/domes-ticviolence.pdf [hereinafter AMA Guidelines]. In addition, given the often recurrent nature of domestic abuse, proper treatment may include efforts to prevent future abuse, which requires knowledge of the identity of the abuser. See AMA Guidelines at 7, 12; see also Nash v. State, 754 N.E.2d 1021, 1025 (Ind.Ct.App.2001) (noting that part of a nurse’s job in assessing and treating patients is to recommend domestic violence resources when appropriate); Oldman, 998 P.2d at 962 (noting that knowledge of the abuser’s identity was important to preventing further abuse). Thus, the fact that an abuser is a member of the victim’s family or household is reasonably pertinent to diagnosis and treatment of the underlying domestic abuse and its attendant psychological and emotional injuries.

In this case, the assessment and treatment form used by J.W. to evaluate F.T. provides further evidence of the relevance of the identity of F.T.’s abuser to her diagnosis and treatment. Included on the form is a section entitled “abuse assessment,” which inquires whether the patient has been “hurt or mistreated by someone important to [her].” The section also provides a space for nurses to indicate whether “referral information” was given to the patient. Inclusion of this section reveals that Abbott Northwestern Hospital considers the identity of a patient’s abuser to be relevant to assessment and treatment in the context of domestic abuse. Because F.T.’s statements were reasonably pertinent to her diagnosis and treatment, I would hold that the district court did not abuse its discretion by admitting the statements under Rule 803(4).

MEYER, Justice

(concurring).

I join in the concurrence of Chief Justice Russell A. Anderson.

PAGE, Justice

(concurring).

I concur in the result.

      . See Minn.Stat. §§ 518B.01 (2004) (Domestic Abuse Act), 518B.02 (2004) (domestic abuse counseling program), 609.185(a)(6) (2004) (domestic abuse murder), 609.2242 (2004) (domestic assault), 609.2243 (2004) (sentencing domestic assault offenders), 611A.31-36 (2004) (victim rights for battered women), 629.341 (2004) (probable cause arrests for domestic violence; immunity from liability), 629.342 (2004) (law enforcement responses to domestic violence), 629.72 (2004) (detention, bail, and release terms for domestic abuse offenders).

      . State v. Wright, 701 N.W.2d 802, 814-15 (Minn.2005) (noting that a “forfeiture by wrongdoing analysis,” to avoid a Confrontation Clause issue where the defendant has procured the unavailability of the victim, is "particularly suitable for cases involving domestic violence” because "perpetrators of domestic violence frequently intimidate their victims with the goal of preventing those victims from testifying”) vacated on other grounds, - U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); State v. Glowacki, 630 N.W.2d 392, 401-02 (Minn.2001) (recognizing the realities facing victims of domestic violence and eliminating the duty to retreat from one’s own home when acting in self-defense in the home); State v. Hennum, 441 N.W.2d 793, 798 (Minn.1989) (recognizing the value of battered women syndrome evidence to dispel common misconceptions, bolster the battered woman's credibility, and show the reasonableness of fear of bodily harm).

      . If we were to do so, it would likely require a process akin to a Frye-Mack hearing to establish that the proposition that the identity of the perpetrator of domestic violence is pertinent to medical diagnosis and treatment of the victim is generally accepted within the medical profession. See, e.g., State v. Roman Nose, 649 N.W.2d 815, 821 (Minn.2002); State v. Schwartz, 447 N.W.2d 422, 424 (Minn.1989). This process must begin at the district court and have a sufficient evidentiary foundation.

      . Nor does the residual exception itself prevent us from considering corroborating evidence. The rule contains no specific limitation and we have considered such evidence in other cases. See Minn. R. Evid. 803(24); State v. Byers, 570 N.W.2d at 493; Oliver, 502 N.W.2d at 778; Ortlepp, 363 N.W.2d at 44.

      . F.T. indicated in her recanted version that she "pulled” the door shut from inside the bathroom. But the state’s investigation revealed that the door opens into the bathroom.

      . The majority claims that we are not sufficiently familiar with the medical issues surrounding treatment of victims of domestic abuse to decide whether the abuser's identity is reasonably pertinent to treatment. However, we do not appear to be any less informed than we were in Larson, where we concluded that an abuser's identity is relevant to treatment of a child sexual abuse victim without reference to medical publications or expert medical testimony on that point. See Larson, 453 N.W.2d at 47.

      . This statement raises an interesting point. As the statement suggests, both sexual abuse and nonsexual physical abuse are prevalent in abusive relationships. Am. Med. Ass’n, Diagnostic and Treatment Guidelines on Domestic Violence 7, 9-10 (March 1992), http:// www.ama-assn.org/ama 1/pub/upload/mm/ 386/domesticviolence.pdf. It defies logic to permit admission of a victim's statement to a treating physician that "my husband raped me,” but not her subsequent statement "and then my husband hit me.”

      . I disagree with the majority's conclusion that we cannot rely on the AMA Guidelines in this case because it was not included in the record below. We are free to refer to publicly available documents generally relevant to resolution of an issue before us, even if those documents are not included in the record. See State v. Rewitzer, 617 N.W.2d 407, 411 (Minn.2000); In re Estate of Turner, 391 N.W.2d 767, 771 (Minn.1986). My use of the AMA Guidelines is not evidentiary in nature. Instead, I employ generic information found in the guidelines to support general propositions about the symptoms and treatment of domestic abuse. Such usage is distinguishable from the statistical information stricken in Hinneberg v. Big Stone County Hous. & Redevelopment Auth., 706 N.W.2d 220, 224 (Minn.2005), which was specific to the parties and issues involved in that case.


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Leonard NMN GOODLOE, Appellant.
    No. A05-1519.
    Supreme Court of Minnesota.
    July 27, 2006.

      John Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuehar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

A jury found appellant Leonard Goodloe guilty of first-degree premeditated murder for the shooting death of Akeen Brown. Goodloe appeals his conviction, arguing that (1) the evidence was insufficient to prove the element of premeditation beyond a reasonable doubt; (2) the district court’s jury instruction regarding premeditation constituted plain error; and (3) the district court plainly erred when it failed to sua sponte instruct the jury on the lesser-included offense of second-degree intentional murder. Goodloe also presents three additional arguments in a pro se supplemental brief: (1) the district court’s admission of Spreigl evidence was error; (2) Goodloe was not promptly brought before the district court after his arrest; and (3) the district court that made the probable cause determination after Goodloe’s arrest lacked authority to do so. We affirm.

At approximately 9 p.m. on July 22, 2004, Akeen Brown — the victim — and several other individuals were standing outside the front door of Big Stop Foods, a north Minneapolis grocery store. A vehicle pulled up to the corner of the store, and an individual, later identified by eyewitnesses as Goodloe, left the vehicle. The individual took a gun from under the driver’s seat of the vehicle and waved the gun at the group standing in front of Big Stop. Brown ran into Big Stop through the front door and headed toward the back of the store.

A few seconds after Brown ran into Big Stop, the gunman entered the store. Once inside, the gunman paused and said something to the effect of “where he go, where he go” or “where he at, where he at.” The gunman then ran to the back of the store, and witnesses heard gunshots coming from the office area at the rear of the store. After the shooting, the gunman ran out of the store, got into his car, and drove off.

Minneapolis police responded to a 911 call indicating that shots had been fired at Big Stop. Upon arrival, police officers found Brown dead from three gunshot wounds to the head in the office at the back of the store. A police officer testified that the office door appeared to have been forced open. Police located seven discharged gun cartridge casings in the store, four of which were found in the office. An officer with the police crime lab unit determined that a .357 caliber firearm had been used in the shooting.

On October 11, 2004, a vehicle driven by Goodloe ran a red light and collided with another vehicle at a north Minneapolis intersection. A police officer saw Goodloe attempt to climb out of his vehicle through the passenger window with a gun in his hand. The officer ordered Goodloe to drop the gun and placed him under arrest. During the arrest, the officer observed two guns inside Goodloe’s vehicle, one of which was a .357 caliber Coonan semiautomatic. A subsequent search of Goodloe’s residence uncovered .357 caliber ammunition in the basement.

Ballistics testing of the Coonan firearm found in Goodloe’s vehicle revealed that it was the gun used in the Big Stop shooting. Kristin Reynolds of the Minneapolis police crime lab unit testified that each of the seven cartridge casings found at Big Stop after the shooting had been fired from the Coonan recovered from Goodloe’s vehicle. Reynolds further testified that she was able to match a bullet fragment recovered from Brown’s head with the Coonan, conclusively establishing that the bullet had been fired from that particular gun.

Upon discovering that the Coonan linked Goodloe to the Big Stop shooting, police composed a photographic lineup that included Goodloe’s photograph. From the lineup, two witnesses who had been at Big Stop at the time of the shooting unequivocally identified Goodloe as the gunman. In addition, three other witnesses to the shooting qualifiedly identified Goodloe as the gunman.

Craig Thrane, a forensic video analyst, presented additional evidence at trial linking Goodloe to the Big Stop shooting. Thrane analyzed images of the gunman’s vehicle captured on Big Stop’s security camera and determined that the features of the vehicle were consistent with those of a late-model Mitsubishi Galant. Thrane testified that he was unable to identify any other vehicle model that bore the same similarities as the Galant to the vehicle in the security video. Subsequently, police learned that Goodloe had rented a 1999 Mitsubishi Galant on July 6, 2004, and had returned the Galant the day after the Big Stop shooting.

A grand jury returned an indictment charging Goodloe with first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2004), and unlawful possession of a firearm, Minn.Stat. § 624.713, subds. 1(b), 2(b) (2004). After a trial at which Goodloe did not testify or present any witnesses, a jury found him guilty as charged. The district court entered a first-degree murder conviction and sentenced Goodloe to life imprisonment. This direct appeal followed.

I.

Goodloe first contends that the evidence presented at trial was insufficient to prove the element of premeditation beyond a reasonable doubt. “When reviewing a claim of evidentiary insufficiency, we view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any [contrary evidence].” State v. Leake, 699 N.W.2d 312, 319 (Minn.2005). “The verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.” Id.

A person who “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of first-degree murder. Minn.Stat. § 609.185(a)(1). Premeditation means “to consider, plan or prepare for, or determine to commit, the act * * * prior to its commission.” Minn. Stat. § 609.18 (2004). “A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” State v. Cooper; 561 N.W.2d 175, 180 (Minn.1997). The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act. Leake, 699 N.W.2d at 319.

“Premeditation is a state of mind and, thus, generally proven through circumstantial evidence.” Id. “Circumstantial evidence is entitled to the same weight as any other evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than guilt.” Id.

“[A] defendant’s actions before and after the murder are relevant to the question of premeditation.” Id. at 321. We have recognized three categories of evidence relevant to an inference of premeditation: (1) planning activity, i.e., “facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing”; (2) motive evidence, i.e., “facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred”; and (3) evidence as to the nature of the killing, i.e., facts “from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.” State v. Moua, 678 N.W.2d 29, 40-41 (Minn.2004) (emphasis omitted) (quoting State v. Moore, 481 N.W.2d 355, 361 (Minn.1992)).

The record in this case contains sufficient evidence of premeditation. Goodloe arrived at Big Stop with a loaded gun in his vehicle, procured the gun from under the driver’s seat upon leaving the vehicle, and approached Brown with the gun extended in front of him. Evidence showing prior possession of the murder weapon can lead to an inference of premeditation. State v. Chomnarith, 654 N.W.2d 660, 665 (Minn.2003).

In addition, Goodloe deliberately followed Brown into Big Stop, and footage from Big Stop’s security camera shows Goodloe chambering a round in his gun as he entered the store, preparing the gun to be fired. Once inside the store, Goodloe paused to ask, “where he go, where he go?” Goodloe then pursued Brown through the store to the office at the rear and, upon reaching the office, forced the door open to gain access to Brown. The time between Goodloe’s arrival at the store and the shooting, during which Goodloe pursued Brown with a loaded gun, constitutes an appreciable period of consideration and preparation for the killing, justifying the jury’s finding of premeditation. See Moore, 481 N.W.2d at 361.

The nature of the killing in this case also supports an inference of premeditation. We have recognized that the number of times a defendant used the murder weapon and the number of wounds inflicted are relevant to determining the nature of the killing. Moua, 678 N.W.2d at 41. Thus, evidence of multiple gunshot wounds can support a finding of premeditation. Id. at 39. We have also said that premeditation can be inferred from evidence showing “that ‘wounds were deliberately placed at vital areas of the body.’ ” Chomnarith, 654 N.W.2d at 665 (quoting Moore, 481 N.W.2d at 361). Here, Brown sustained three gunshot wounds to the head, indisputably a vital area. One of the three wounds was inflicted when the shooter was no more than four feet away from Brown. Further, Goodloe fired a total of seven shots while inside the store. Given the totality of the evidence presented at trial, a jury could reasonably have concluded that Goodloe formed an intent to kill an appreciable period of time before he committed the murder, during which time he considered, planned, prepared, or determined to commit the murder. We therefore hold that the evidence adduced at trial was sufficient to prove the element of premeditation beyond a reasonable doubt.

II.

Goodloe next contends that the jury instruction on premeditation constituted plain error affecting his substantial rights. The district court instructed the jury on the element of premeditation using the pattern jury instruction for first-degree premeditated murder. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 11.02 (4th ed.1999) [hereinafter CRIMJIG 11.02], The instruction given at trial provided:

Premeditation means that the defendant considered, planned, prepared for, or determined to commit the act before the defendant committed it.
Premeditation, being a process of the mind is wholly suggestive, and hence, not always susceptible to proof by direct evidence. It may be inferred from all the circumstances surrounding the event. It is not necessary that premeditation exist for any specific length of time.
A premeditated decision to kill may be reached in a short period of time, however, an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated.

Goodloe argues that the district court’s use of the pattern premeditation instruction was erroneous because the instruction misstates the law. Specifically, Goodloe contends that the instruction does not adequately explain that some appreciable time must have passed after the defendant formed the intent to kill but before the murder was committed during which the defendant considered, planned, or prepared for the murder.

Goodloe acknowledges that he did not object to the premeditation instruction at trial. A defendant’s failure to object to instructions before they are given to the jury generally results in forfeiture of the issue on appeal. State v. Earl, 702 N.W.2d 711, 720 (Minn.2005). Nonetheless, we have discretion to consider a jury instruction not objected to at trial if it is plain error affecting substantial rights. Minn. R.Crim. P. 31.02; Earl, 702 N.W.2d at 720; State v. Griller, 583 N.W.2d 736, 742 (Minn.1998). We apply a three-prong test for plain error, requiring that there be (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. Griller, 583 N.W.2d at 740. To satisfy the second prong, the error must be plain at the time of the appeal. State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002). The third prong of the test is satisfied if “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. If the three prongs of the test are met, “the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” Id. at 740. We will correct the error “only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.” State v. Morton, 701 N.W.2d 225, 234 (Minn.2005).

District courts have considerable latitude in selecting language for jury instructions. State v. Moore, 699 N.W.2d 733, 736 (Minn.2005). “Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.” Ihle, 640 N.W.2d at 916. A jury instruction is erroneous if it materially misstates the law. Moore, 699 N.W.2d at 736.

In State v. Martin, we upheld the pattern jury instruction on premeditation. 261 N.W.2d 341, 345 (Minn.1977). We noted that the instruction incorporated the statutory definition of premeditation and accurately reflected existing case law and was therefore not error. Id. Subsequently, in a 1988 case, we again expressed approval of the pattern premeditation instruction. State v. Flores, 418 N.W.2d 150, 156 (Minn.1988) (indicating that it would have been preferable for the district court to have used CRIMJIG 11.02 instead of the premeditation instruction actually given).

Though we have not directly addressed the validity of the pattern premeditation instruction since Martin, the instruction continues to accurately state the law. The first sentence of the instruction tracks almost word-for-word the statutory definition of premeditation found in Minn.Stat. § 609.18, and the other parts of the instruction correctly summarize our case law on premeditation. See Leake, 699 N.W.2d at 319; Moua, 678 N.W.2d at 39.

Goodloe appears to take issue primarily with the part of the instruction that states that premeditation need not exist for a specific period of time and that “[a] premeditated decision to kill may be reached in a short period of time.” CRIMJIG 11.02. Goodloe contends that our decision in State v. Moore, 481 N.W.2d 355 (Minn.1992), altered the definition of premeditation such that these parts of CRIMJIG 11.02 no longer accurately state the law.

In Moore, we disapproved of our statement in prior cases that premeditation can be formed “virtually instantaneously,” noting that such a statement blurs the line between premeditation and intent to kill. Moore, 481 N.W.2d at 360-61. We concluded that proof of premeditation requires that the state show “some appreciable time” passed after the defendant formed the intent to kill but before the murder took place, during which the defendant considered, planned, prepared for, or determined to commit the murder. Id. at 361. But we specifically noted that this conclusion was not at odds with our statement in previous cases that “premeditation requires no specific period of time for deliberation.” Id. at 361 n. 4. Thus, Moore itself affirmed the validity of the part of CRIMJIG 11.02 that provides, “[i]t is not necessary that premeditation exist for any specific length of time.” Moreover, in cases decided after Moore, we have consistently said that a finding of premeditation does not require a specific length of time for deliberation. See Leake, 699 N.W.2d at 319; State v. Fields, 679 N.W.2d 841, 348 (Minn.2004). Further, the part of CRIMJIG 11.02 that provides, “an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated,” is consistent with our rejection in Moore of the notion that premeditation can be formed “virtually instantaneously.”

Our conclusion in Moore that some appreciable time must pass during which the planning, preparation, deliberation, or consideration required by Minn.Stat. § 609.18 occurs does not conflict with the statement in CRIMJIG 11.02 that premeditation may be formed in a “short period of time.” The American Heritage Dictionary defines “appreciable” as “[pjossible to estimate, measure, or perceive.” The American Heritage Dictionary of the English Language 88 (4th ed.2000); see also Black’s Law Dictionary 110 (8th ed.2004) (defining “appreciable” as “[cjapable of being measured or perceived”). Thus, even a “short period of time” constitutes “some appreciable time,” and the use of the phrase “a short period of time” in CRIMJIG 11.02 is not a misstatement of the law as it stands following Moore. Because the pattern jury instruction on premeditation accurately states the law, we hold that the district court did not err in instructing the jury using the pattern instruction.

III.

Goodloe asserts that the district court committed plain error when it failed to instruct the jury on the lesser-included offense of second-degree intentional murder. Second-degree intentional murder is a lesser-included offense of first-degree premeditated murder because “[a]n included offense includes a lesser degree of the same crime.” State v. Dahlin, 695 N.W.2d 588, 597 (Minn.2005); see also Minn.Stat. § 609.04, subd. 1(1) (2004); State v. Hannon, 703 N.W.2d 498, 509 (Minn.2005).

At Goodloe’s trial, the district court instructed the jury on the elements of the two charged offenses — first-degree premeditated murder and prohibited person in possession of a firearm — and gave no lesser-included-offense instructions. Instead, the court told the jury, “If you find that any element [of first-degree premeditated murder] has not been proved beyond a reasonable doubt, the defendant is not guilty of murder.”

The parties agree that Goodloe did not request a second-degree-intentional-murder instruction at trial. Failure to request specific jury instructions or to object to instructions given generally results in forfeiture of the issue on appeal. Earl, 702 N.W.2d at 720; see also State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001). But we have discretion to consider a district court’s failure to give a jury instruction if the failure constitutes plain error affecting substantial rights. See Minn. R.Crim. P. 31.02; Crowsbreast, 629 N.W.2d at 437.

In State v. Dahlin, we said that “absent plain error affecting a defendant’s substantial rights, a trial court does not err when it does not give a warranted lesser-included instruction if the defendant has impliedly or expressly waived that instruction.” 695 N.W.2d at 598. Failure to request a lesser-included-offense instruction is an implied waiver of the defendant’s right to the instruction. State v. Penkaty, 708 N.W.2d 185, 208 (Minn.2006); Dahlin, 695 N.W.2d at 597-98. Here Goodloe impliedly waived, or forfeited, his right to have a second-degree-intentional-murder instruction submitted to the jury by failing to request the instruction.

And, in any event, an instruction on second-degree intentional murder was not warranted by the evidence in this case. We have held that a lesser-included-offense instruction is warranted when “1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.” Dahlin, 695 N.W.2d at 598. “In making these determinations, the court must view the evidence in the light most favorable to the requesting party and must not weigh the evidence or make credibility determinations.” Penkaty, 708 N.W.2d at 205.

Here, Goodloe cannot show that there was a rational basis for convicting him of second-degree intentional murder, the lesser-included offense he claims should have been submitted to the jury. The element of premeditation differentiates first-degree premeditated murder from second-degree intentional murder. See Minn.Stat. §§ 609.185(a)(1), 609.19, subd. 1(1) (2004). Premeditation means “to consider, plan or prepare for, or determine to commit, the act * * * prior to its commission.” Minn.Stat. § 609.18.

As we recognized in Dahlin, “a lesser-included offense instruction need not be given if no evidence is adduced to support giving the * * * instruction.” Dahlin, 695 N.W.2d at 595. In this case, unlike in Dahlin, no evidence was adduced at trial to support a conclusion that Good-loe’s intent to kill was an impulse formed just prior to the shooting, with no subsequent consideration, deliberation, planning, or preparation. See id. at 600-01. Good-loe’s theory at trial was that he was not the perpetrator of the Big Stop shooting— that identity was the critical issue. While a “warranted lesser-included offense instruction cannot be denied on the grounds that it is inconsistent with the defendant’s theory of the case,” Hannon, 703 N.W.2d at 513, neither Goodloe nor the state presented any evidence that would have created a rational basis for a jury to conclude that Brown’s murder was intentional but not premeditated. The jury had no rational basis for finding that, during the time in which Goodloe drove to Big Stop, took a loaded gun from under the seat of his vehicle, pointed it at Brown, followed him into the store, chambered a round in the gun, pursued Brown to the back office, forced open the office door, and fired seven shots, three of which struck Brown in the head, Goodloe did not consider or prepare for the murder for any perceptible amount of time. Accordingly, we hold that the district court did not err by failing to sua sponte instruct the jury on second-degree intentional murder. Because there was no error, much less plain error affecting substantial rights, Goodloe’s claim regarding the lesser-included-offense instruction fails.

IV.

Goodloe raises three additional claims in a pro se supplemental brief: (1) the district court erred in permitting the admission of Spreigl evidence; (2) Goodloe was not promptly brought before the district court after his arrest, in violation of Minn. R.Crim. P. 4.02, subd. 5, 4.03, subd. 1; and (3) the court making the probable cause determination after Goodloe’s arrest lacked authority to do so because the judge was not properly assigned to Good-loe’s case. We conclude that none of these claims merit relief.

Goodloe contends that the district court improperly admitted evidence relating to his involvement in a vehicular collision on October 11, 2004, and his unlawful possession of a firearm at that time. Before trial, the state gave Goodloe notice of its intent to present evidence of his involvement in an armed robbery on October 11, 2004, his subsequent flight from police, the resulting vehicular collision, and his unlawful possession of the Coonan at that time. Defense counsel objected to admission of evidence of the robbery, but agreed that testimony regarding the collision and Goodloe’s possession of the Coonan could be admitted.

At trial, two witnesses testified that Goodloe emerged from his vehicle after the collision with a gun in his hand, and two police officers testified that they found two guns in Goodloe’s vehicle after the collision. The state did not present any testimony about Goodloe’s involvement in a robbery prior to the collision. At the end of the state’s case-in-chief, defense counsel expressed concern that the state had improperly introduced Spreigl evidence regarding Goodloe’s unlawful possession of a firearm on October 11, but asked that the court not give a precautionary instruction to the jury to avoid drawing attention to the evidence. Because defense counsel agreed that evidence of Goodloe’s possession of the Coonan on October 11 was admissible and specifically requested that the court not give a cautionary instruction regarding the proper use of the Spreigl evidence, Goodloe has waived his right to contest the admission of the evidence or the absence of a cautionary instruction, unless the district court committed plain error or error of fundamental law. See State v. Gisege, 561 N.W.2d 152, 158 n. 5 (Minn.1997).

It was not error for the district court to refrain from giving a cautionary instruction because defense counsel’s request that the court not give the instruction reflected a decision of trial strategy, which the court was not free to override. See State v. Washington, 693 N.W.2d 195, 205 (Minn.2005). In addition, the testimony regarding Goodloe’s possession of a gun on October 11 plainly was admissible Spreigl evidence. Spreigl evidence is admissible if: (1) the state gives notice of its intent to present the evidence; (2) the state indicates clearly what the evidence will be offered to prove; (3) there is clear and convincing evidence that the defendant participated in the other act; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential to unfairly prejudice the defendant. State v. Ness, 707 N.W.2d 676, 686 (Minn.2006). Here, the state complied with the Spreigl evidence procedural requirements, and the evidence was highly relevant to the state’s case because the Coonan was the key piece of physical evidence linking Goodloe with Brown’s murder. The evidence was not unfairly prejudicial because it did not “ ‘persuade by illegitimate means’ ” or lead the jury to reach a verdict on an improper basis. State v. Townsend, 546 N.W.2d 292, 296 (Minn.1996) (quoting State v. Cermak, 365 N.W.2d 243, 247 n. 2 (Minn.1985)). Accordingly, the district court did not err in admitting the testimony regarding the October 11 incident.

Goodloe claims that he was not afforded a prompt appearance before a judge pursuant to Minn. R.Crim. P. 4.02, subd. 5, or a prompt probable cause determination as required by Minn. R.Crim. P. 4.03, subd. 1. Goodloe asserts that he was arrested without a warrant on October 21, 2004, and was not taken before a judge until November 4, 2004.

The validity of these claims cannot be ascertained on the basis of the record before us. An appellant has the responsibility of providing an appellate court with a record adequate for review. See State v. Anderson, 351 N.W.2d 1, 2 (Minn.1984); see also Grinolds v. Indep. Sch. Dist. No. 597, 346 N.W.2d 123, 128 (Minn.1984) (“Appellate review is limited to the record.”). Here, the record on appeal contains no documentation indicating when Goodloe was arrested for the Big Stop shooting, when the district court made the probable cause determination required by Rule 4.03, or when Goodloe was brought before the court as required by Rule 4.02. Thus, we cannot determine whether the prompt appearance and probable cause determination requirements of Rules 4.02 and 4.03 were satisfied.

Goodloe’s final claim is that the judge who made the probable cause determination in his case was not properly assigned to the case pursuant to the retired judge assignment process outlined in Minn.Stat. § 2.724, subd. 3 (2004). Again, the record provided for our review does not furnish sufficient documentation to permit resolution of this claim. Specifically, the record does not contain the order assigning the judge to Hennepin County District Court or to Goodloe’s case. Consequently, we cannot address the merits of this claim.

Affirmed.

      . The jury also found Goodloe guilty of unlawful possession of a firearm.

      . A Big Stop employee testified that the office door was not damaged prior to the shooting.

      . Shawna Slack, a customer at Big Stop at the time of the shooting, testified that she was 80% certain that Goodloe was the gunman. Sean Cooley, a Big Stop employee, stated that of all the photographs he had been shown by police, Goodloe most closely resembled the gunman. Cooley testified that he was “almost one hundred [percent]” certain that Goodloe was the gunman. Stephen Watkins, also a Big Stop employee, told police that Goodloe's photograph looked familiar, and, at trial, Watkins testified that he recognized Goodloe as having been the gunman at Big Stop.

      . While it is true that the state offered no evidence of Goodloe's motive for killing Brown, we have never held that the state must present evidence from each of the three categories relevant to premeditation in order to support a finding of premeditation.

      . In CRIMJIG 11.02, this word is "subjective,” not "suggestive.” It appears that either the district court judge misspoke, or the word was improperly transcribed by the court reporter. Goodloe does not challenge this mistaken wording.

      . Though we have typically used the phrase "implied waiver” in this context, "forfeiture” is perhaps a more accurate term. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (distinguishing between forfeiture and waiver).

      . While it is theoretically possible that the jury could have believed all of the state's evidence except the evidence relevant to premeditation, we cannot discern any rational basis for the jury to have done so.

      . Although witnesses did not directly state that Goodloe unlawfully possessed a firearm on October 11, the Spreigl concern with the testimony appears to have been that the jury may have inferred that Goodloe’s possession of the Coonan on October 11 was unlawful from evidence presented at trial showing that Goodloe was prohibited from possessing a firearm on July 22.