This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Mikhail P. Oleynik,



Filed November 26, 2002


Kalitowski, Judge


Wright County District Court

File No. K401709


Mike Hatch, Attorney General, Jennifer A. Service, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128; and


Tom N. Kelly, Wright County Attorney, Wright County Government Center, Ten Second Street Northwest, Buffalo, MN 55313 (for respondent)


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


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Mikhail P. Oleynik challenges his convictions of kidnapping and first-degree criminal sexual conduct, arguing that the district court abused its discretion in ruling that the DNA results from PCR-STR testing were admissible.  We reverse.



               Appellant requested and received a Frye-Mack hearing to contest the admissibility of the DNA evidence submitted by the state.  Following the hearing the district court ruled that the DNA evidence was admissible. 

               Under the Frye-Macktest, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable.  State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002) (citing Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn. 2000)).  In other words, the Frye-Mackstandard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second, whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.  State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992). The standard of review for admissibility determinations under Frye-Mack is two-pronged.  Goeb, 615 N.W.2d at 815 (Minn. 2000).  Conclusions about whether a technique is generally accepted are questions of law that are reviewed de novo.  Id.  Determinations under the second prong, foundational reliability, are reviewed under an abuse of discretion standard.  Id.   

               Appellant argues that the district court abused its discretion by concluding that the state met its burden under prong two.  Specifically, appellant argues that the DNA test kits used by the Bureau of Criminal Apprehension (BCA) in this case are not in conformance with previously adopted Minnesota standards.

               Subsequent to the trial in this case, this court addressed this issue in State v. Traylor, 641 N.W.2d 335, 340-41 (Minn. App. 2002), review granted (Minn. May 14, 2002).  The Traylor court determined that the Cofiler and Profiler Plus Kits used in PCR-STR DNA testing did not meet the second prong of the Frye-Mack test because the kits were not developed in accordance with the standards promulgated by the Technical Working Group on DNA Analysis Methods (TWGDAM).  The court specifically rejected the state’s argument that the TWGDAM guidelines have been superceded in Minnesota, stating that:

The supreme court has clearly and unequivocally adopted the TWGDAM guidelines and the guarantees of reliability contained therein—not merely whatever guidelines may currently serve as the official standards of the FBI.  * * * Accordingly, absent a contrary conclusion by our state’s highest court, the TWGDAM guidelines remain the standard for determining the reliability of DNA evidence.


Id. at 341. 

               Here, the BCA analyzed the DNA samples using PCR-STR technology and Cofiler and Profiler Plus test kits.  Thus, following the holding in Traylor, we are compelled to conclude that the district court abused its discretion by admitting DNA evidence using the Cofiler and Profiler Plus test kits.

               Because we conclude that the district court abused its discretion by admitting the DNA evidence, we must next determine whether the error was harmless beyond a reasonable doubt.  State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998).  This court will reverse a conviction based on the erroneous admission of objected-to evidence unless the admission was harmless beyond a reasonable doubt.  Id.  We “must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citation omitted).  If the verdict was “surely unattributable” to the error, the error is harmless beyond a reasonable doubt.  Id.  We must examine the record as a whole in assessing whether an erroneous admission of evidence was harmless, considering the strength of the state’s evidence and the weakness of any defense evidence.  State v. Van Wagner, 504 N.W.2d 746, 749 (Minn. 1993).  As a general rule, an error is less likely to be prejudicial where the evidence of guilt is strong.  State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).

               Here, it is likely that the DNA evidence was persuasive in convincing the jury that appellant was guilty.  The alleged victim, P.H., and appellant recounted entirely different versions of events that transpired the night in question.  And the state relied heavily on the DNA evidence, which corroborated P.H.’s story that appellant forced her to perform oral sex on him and discredited appellant’s testimony.  The state argued that on the basis of the mixture obtained from the penis swabs taken from appellant, 99.9996% of the population could be excluded from the mixture, but appellant and P.H. could not be excluded.  Other than P.H.’s testimony, the other evidence in the case included a condom wrapper in appellant’s car, food found where P.H. said she tried to get away, and testimony from the investigating officers.

               At trial, appellant challenged P.H.’s credibility based on her history as a prostitute and her continuing drug use.  Given the importance that was placed on the DNA evidence to corroborate P.H.’s testimony, we cannot say that the jury’s verdict was surely unattributable to the admission of the DNA evidence.  Thus, we conclude that the error was not harmless. 

               Because we reverse appellant’s conviction on the ground that the district court committed reversible error by admitting the DNA evidence, we do not address the other issues raised by appellant.