This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).








State of Minnesota,





Rodney Jerome Blackmon,




Filed July 18, 2000


Schumacher, Judge


Ramsey County District Court

File No. K69975



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 315 Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Harten, Judge.



Appellant Rodney Jerome Blackmon appeals his conviction for third-degree criminal sexual conduct, arguing that the trial court's exclusion of evidence violated his constitutional right to present a defense. We affirm.


In the early morning hours of November 23, 1998, police were dispatched to an apartment in Roseville in response to a 911 call. The caller, B.N., said she had been raped by Blackmon.

B.N. shared an apartment with Blackmon's brother, Eric Smith. The previous day, Blackmon had come over to watch a football game and then spent the night. She told police that she awoke in the middle of the night to find Blackmon on top of her, his hand over her mouth, her underwear around her ankles, and Blackmon sexually penetrating her. She was finally able to break free and ran into the bedroom and called the police. Blackmon told police a different story. He claimed that he and B.N. had had consensual sex but that she later became upset.

B.N. was taken to a hospital for a physical examination. Tests revealed the presence of semen matching Blackmon's DNA. Tests also revealed that B.N. suffers from trichomoniasis, a venereal disease.

Blackmon was charged with third-degree criminal sexual conduct in violation of Minn. Stat. 609.344, subd. 1(d) (1998). He pleaded not guilty. At trial, Blackmon sought to introduce evidence of B.N.'s venereal disease to support his defense of consent. The trial court excluded the evidence, finding it irrelevant and speculative. The jury found Blackmon guilty of the charged offense. Blackmon appeals.


In reviewing a trial court's evidentiary rulings, this court applies a deferential standard. State v. Ferguson, 581 N.W.2d 824, 831 (Minn. 1998). The rulings will not be disturbed unless the trial court abused its discretion. State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000).

Blackmon argues that the trial court's exclusion of evidence of B.N.'s venereal disease violated his constitutional right to present a defense.[1] Every criminal defendant has a right to fundamental fairness and to be "afforded a meaningful opportunity to present a complete defense." State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).

The right to present a defense includes the opportunity to develop the defendant's version of the facts, so the jury may decide where the truth lies.


State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). The trial court, therefore, must allow the defendant to present evidence material to his defense. Id. at 866. "However, a defendant has no right to introduce evidence that either is irrelevant, or whose prejudicial effect outweighs its probative value." Id.

The trial court determined that evidence of B.N.'s venereal disease was not relevant to the issue of consent. Blackmon argues that the evidence was relevant because it tended to prove that B.N., who disliked him, had sex with him in order to infect him. A trial court has wide discretion in determining relevancy of evidence. State v. Buchanan, 431 N.W.2d 542, 550 (Minn. 1988). Evidence of a victim's sexual history is normally irrelevant in a criminal sexual conduct prosecution. Crims, 540 N.W.2d at 867-68. The burden of establishing its relevancy is on the defendant. Id.

Blackmon failed to offer evidence that B.N. knew she was infected with the disease at the time of the assault. Thus, evidence of the disease was irrelevant because it did not tend to prove she had consensual sex with Blackmon in order to infect him. See State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983) (defendant must comply with rules of foundation to establish relevance and admissibility of evidence); Minn. R. Evid. 401 (relevant evidence is evidence tending to make existence of fact of consequence more or less probable than it would be without evidence). Given the uncertainty of whether B.N. knew she was infected at the time of the assault, evidence of the disease would result in jury speculation about consent. Exclusion of speculative evidence is not error. Kwapien v. Starr, 400 N.W.2d 179, 185 (Minn. App. 1987). We find no abuse of discretion.

We also note that evidence of B.N.'s venereal disease is inadmissible under Minnesota's rape shield law. Minn. Stat. 609.347, subd. 3 (1998); Minn. R. Evid. 412 (same). Under the rape shield law, evidence of a victim's sexual history is generally irrelevant. Crims, 540 N.W.2d at 867-68. Even if evidence of B.N.'s venereal disease was relevant, it would be inadmissible because its prejudicial effect outweighs any probative value. Minn. Stat 609.347, subd. 3.


[1] In his pro se supplemental brief, Blackmon similarly asserts that the trial court's exclusion of evidence violated his constitutional right to present a defense. His argument only restates the issue presented in Blackmon's main brief.