This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Douglas Wayne Young,



Filed January 21, 2003

Reversed and remanded

Lansing, Judge


Hennepin County District Court

File No. 98120889



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


Amy Klobuchar, Hennepin County Attorney, and Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414; and


Michael C. Davis, Special Assistant Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN  55101 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.


U N P U B L I S H E D   O P I N I O N




            On appeal from conviction of third-degree criminal sexual conduct, Douglas Young challenges district court rulings on the admissibility of evidence, the exclusion of defense counsel and defendant from a court-ordered witness-identification procedure, and the denial, without a hearing, of a new-trial motion.  We conclude that the cumulative effect of erroneous evidentiary rulings and the defense’s exclusion from a midtrial, witness-identification procedure is not harmless beyond a reasonable doubt, and we reverse and remand for a new trial.


            Douglas Young was tried before a jury on two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct involving N.S.  The state presented testimony that N.S. had gone to a homeless shelter to use the telephone to call her boyfriend, S.J.  At the shelter she talked to Young, a friend of S.J.  In a joint effort to find S.J., Young and N.S. left the shelter and went to Young’s boardinghouse so he could change clothes.  N.S. testified that while they were at Young’s boardinghouse, he grabbed her by the throat, struck her in the stomach, and told her to remove her clothes.  When N.S. did not comply, Young, still holding her throat with one hand, picked up a knife with the other, and then almost immediately dropped it.  Young lifted her out of a chair, put her on the bed, and sexually assaulted her.  Young disputed N.S.’s testimony and testified that he and N.S. had had consensual sex as part of a sex-for-crack-cocaine exchange.

On direct examination, the state elicited testimony from N.S. that before the alleged assault she had had no sexual partners other than S.J. and that she had never smoked crack cocaine.  To rebut that statement the defense sought to present testimony of Vernon Williams that he had smoked crack cocaine with N.S. and S.J. and that N.S. had had sex with him in exchange for Williams providing S.J. with crack cocaine.  The state objected to Williams being called as a witness and to his proposed testimony.  The court permitted Williams to testify that he had smoked crack cocaine with N.S. and S.J.  The state introduced evidence of fourteen criminal convictions to impeach Williams’s credibility.

            After Williams testified and the defense rested, the state requested that the court order Williams to accompany the prosecutor to the county attorney’s office to determine whether N.S. and S.J. could identify him.  The court granted the request and denied defense motions to be present for the identification procedure.  After the identification procedure was completed, the trial reconvened, and the state recalled N.S. and S.J. to the witness stand.  They testified that they did not know Williams.

The jury found Young guilty of third-degree criminal sexual conduct but acquitted him of the two first-degree criminal-sexual-conduct charges.  Young appeals, arguing that the district court committed reversible error by (1) excluding Vernon Williams’s testimony that he had had sex with N.S., (2) barring the defense from attending the identification procedure, (3) permitting the state to impeach Williams with certain criminal convictions, (4) receiving a knife into evidence without sufficient foundation, and (5) denying Young’s motion for a new trial without conducting a hearing in his presence.



            The due process clauses of the Fourth Amendment of the United States Constitution and Article I, Section 7 of the Minnesota Constitution guarantee a criminal defendant a fair trial.  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992).  The right to call witnesses to testify in one’s own behalf has “long been recognized as essential to due process.”  Id. at 193 (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045 (1973)).  Whether to admit evidence is a discretionary decision of the district court that will be reversed only if the discretion is abused.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  But if a decision to exclude evidence violates the defendant’s constitutional rights, that decision will be reversed unless it is harmless error beyond a reasonable doubt.  State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986).

            Young contends that the court’s exclusion of Williams’s testimony that he had previously had sex with N.S. violated Young’s right to present evidence in his own defense.  The state contends both that the evidence was properly excluded under the rape-shield statute and that exclusion was an appropriate remedy for Young’s failure to list Williams as a witness.

The rape-shield statute excludes evidence of the victim’s previous sexual conduct in a prosecution for criminal sexual conduct except when consent is a defense and the complainant has made prior allegations which were fabricated, when the evidence of past sexual conduct involves the accused, or when the prosecution introduces evidence of semen, pregnancy, or disease.  Minn. Stat. § 609.347, subd 3 (2000).  See also Minn. R. Evid. 412(1) (stating the same).  But the supreme court has recognized that “[i]n certain cases the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded by the rape shield law.”  State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (citation omitted).

Neither Young nor the state argues that Williams’s testimony would have been admissible as substantive evidence before N.S. testified to her sexual-conduct history, but Young contends that N.S.’s statement made the evidence admissible.  We agree.  By eliciting N.S.’s testimony that before the assault she had had sexual relations only with S.J., the state put N.S.’s sexual history at issue.  Ostensibly the state was attempting to bolster N.S.’s testimony that she had not consented to have sex with Young.  But the state may not present evidence of N.S.’s past sexual conduct and then invoke the protection of the rape-shield statute to prevent the admissibility of contradictory evidence.  See State v. Crims, 540 N.W.2d 860, 863 (Minn. App. 1995) (noting that in earlier trial, prosecution had “opened the door” to evidence of victim’s prostitution by suggesting victim would never prostitute herself), review denied (Jan. 23, 1996).  Once the state put N.S.’s past sexual conduct in issue, Williams’s testimony became relevant to assess N.S.’s credibility as a witness.  Young’s constitutional right to present evidence affords him the right to offer evidence to dispute N.S.’s specific testimony on her sexual-conduct history.  The rape-shield statute limits the admission of evidence of a victim’s prior sexual conduct, but it does not permit the state to use that evidence selectively to strengthen its case without the defense having an opportunity to refute it.

The district court was justifiably concerned that Williams’s rebuttal testimony not be used to circumvent the rape-shield statute and bolster Young’s sex-for-crack-cocaine defense.  But such circumvention may be prevented by limiting the testimony to proper rebuttal only.  In light of N.S.’s specific testimony as to her sexual-conduct history, excluding Williams’s contradictory testimony was error.

The state conjointly argues that limiting the scope of Williams’s testimony was a proper remedy for the defense’s failure to include Williams on the list “whom the defendant intend[ed] to call as witnesses at trial.”  See Minn. R. Crim. P. 9.02.  This argument appears to be inconsistent with the state’s previous position that Williams’s evidence could not be admitted.  But whether or not it is inconsistent, the argument fails to recognize that Young offered Williams’s testimony as rebuttal evidence.  See State v. Gore, 451 N.W.2d 313, 316 (Minn. 1990) (defining rebuttal evidence as “evidence which explains, contradicts, or refutes earlier evidence”).  The disclosure requirement does not apply to rebuttal evidence.  State v. Yang, 627 N.W.2d 666, 677 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Rebuttal testimony is “a function of the trial as it develop[s]” and thus rebuttal witnesses are not the same as witnesses whom a party “intends to call as witnesses at the trial.”  See State v. Anderson, 405 N.W.2d 527, 531 (Minn. App. 1987), review denied (Minn. July 22, 1987).  Young’s failure to disclose Williams’s name prior to trial did not violate the discovery rules.


The district court excluded the defense from participating in the court-ordered witness-identification procedure conducted to determine whether N.S. and S.J. recognized Williams.  Young argues that this exclusion denied him the right to effectively cross-examine witnesses.  An application of constitutional provisions is a determination of law subject to de novo review.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).

Both the federal and Minnesota constitutions guarantee a criminal defendant the right to confront witnesses.  U.S. Const. amend. VI; Minn. Const. art. 1, § 6.  Barring defense presence at the identification procedure denied Young the opportunity to challenge the testimony of N.S. and S.J. that they did not recognize Williams.  The state called an employee of the county attorney’s office as a witness to corroborate N.S. and S.J.’s testimony of nonrecognition.  But the exclusion of the defense from the identification procedure precluded the introduction of any evidence to support Williams’s claim of recognition.

            Unequal access to out-of-court evidence-gathering procedures erodes confidence in the integrity and impartiality of the court’s processes.  See State v. Smith, 295 Minn. 65, 67, 203 N.W.2d 348, 350 (1972) (addressing the exclusion of defense counsel from an autopsy at which a Bureau of Criminal Apprehension officer was allowed to be present).  This unorthodox identification procedure conducted in midtrial, outside the courtroom, involved key witnesses and was carried out by an employee of the county attorney who testified for the prosecution.  Preventing the defense from observing the identification procedure violated Young’s right to confront witnesses.


Young also challenges the district court’s decision to permit the state to impeach witness Vernon Williams’s credibility with evidence of two felony drug-possession convictions, a felony forgery conviction, and four misdemeanor property-crime convictions.  A district court’s ruling on the admissibility of impeachment evidence will not be reversed absent a clear abuse of that discretion.  State v. Hochstein, 623 N.W.2d 617, 624 (Minn. App. 2001).

            The district court concluded that Williams’s drug-possession and forgery convictions were admissible by analogy to State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (listing, among other factors, impeachment value, date of the prior crime, and date of conviction to determine admissibility of defendant’s prior convictions).  The court reasoned that the drug and forgery convictions helped the jury to “see the whole person and thus to judge better the truth of his testimony.”  State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (quotation omitted).  The 1992 drug conviction may have “lost     * * * relevance by the passage of time,” Id. (quotation omitted), but the 2000 conviction preceded Williams’s testimony by only a year.  The importance of Williams’s testimony is undisputed, and his credibility appears to have been pivotal to the defense’s case.  The district court did not abuse its discretion in admitting evidence of Williams’s forgery and drug-possession convictions.

Young also contends that the district court erred in admitting evidence of four of Williams’s misdemeanor convictions—theft, aiding and abetting shoplifting, gross misdemeanor theft, and receiving stolen property—because they are not crimes involving dishonesty or false statement.  The district court admitted all four convictions as a matter of discretion.  Because Young did not raise this objection before the district court it has not been preserved for appeal.  See State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993) (stating that “[a]n objection must be specific as to the grounds for challenge”), review denied (Minn. Oct. 19, 1993).


Young’s last evidentiary challenge is to the admissibility of a serrated steak knife that police recovered from the boardinghouse.  He contends that the knife was inadmissible because the state offered no evidence that he owned the knife or possessed it at or near the time of the offense.  The district court has considerable discretion in deciding whether evidence has been adequately authenticated or identified in a criminal prosecution.  State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984). 

            At trial, N.S. was unable to positively identify the knife when the prosecution presented it to her.  The district court nevertheless admitted the knife into evidence after the state presented testimony from investigating police officers that the knife matched a description N.S. had provided immediately after the assault, that the knife was recovered by police in a kitchen which Young shared with two other individuals, and that N.S. had stated in a subsequent police interview that the knife was similar to the one used in the attack.  The lack of proof of a connection between the defendant and a weapon offered into evidence does not affect its admissibility, but only the weight that should be given to the object.  State v. Olek, 288 Minn. 235, 242, 179 N.W.2d 320, 325-26 (1970).  Therefore, the lack of any evidence that the knife belonged to Young may have weakened its evidentiary value, but did not preclude its admission.  The district court accordingly did not abuse its discretion in receiving the knife into evidence.


Prior to sentencing, Young moved for a new trial.  After receiving and considering extensive written submissions from both parties, the district court denied the motion.  On appeal, Young argues that by deciding his motion without conducting a hearing in his presence the district violated his right to be present at all stages of trial under the state and federal constitution, and specifically violated Minn. R. Crim. P. 26.03 (requiring the presence of defendant at every stage of the trial).  Interpretation of the rules of criminal procedure is a question of law subject to de novo review.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).

Young relies on State v. Erickson, 597 N.W.2d 897 (Minn. 1999), for the proposition that posttrial motions constitute a “stage of the trial” for purposes of rule 26.03.  This argument is unpersuasive because Erickson was decided on the court’s failure to hold the hearing before the return of the verdict, not on the application of rule 26.03 to a posttrial hearing.  A motion for new trial, by definition, can arise only after the jury returns a verdict and thus is not a stage of the trial.

            Even if a new-trial motion could be considered a stage of the trial, Young has not demonstrated prejudice.  Young’s new-trial motion raised only questions of law.  A hearing would have served only to provide counsel an opportunity to present arguments.  But both sides thoroughly briefed the issues raised in the motion for new trial, several of which had previously been argued during the trial itself.  A hearing in Young’s presence would have added little to the court’s consideration of these issues.

            We similarly conclude that the denial of a hearing in Young’s presence did not violate his due process rights under the federal and Minnesota constitutions.  Due process does not require the presence of the defendant at a hearing on a motion for new trial when only legal issues are addressed.  See United States v. Sanchez, 917 F.2d 607, 619 (1st Cir. 1990) (holding that when issues addressed at hearing on motion for new trial would not have been affected by input of defendant, due process did not require presence of defendant at hearing).  Because Young’s motion for new trial was grounded solely on alleged legal errors committed by the district court, due process did not require a hearing held in his presence.  The district court therefore did not violate Young’s rights by deciding his motion for new trial on the parties’ written submissions.


            Having determined that the district court erred in excluding rebuttal testimony on N.S.’s previous sexual conduct and in barring the defense from attending the court-ordered witness-identification procedure, we are required to evaluate whether the state has shown that these errors were harmless beyond a reasonable doubt.  State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998).  To determine whether an error is harmless, appellate courts look to the basis for the jury’s verdict to see what effect the error had on that verdict.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  Id. (citation omitted).  An appellant is entitled to a new trial if an error—or errors, taken cumulatively—had the effect of denying appellant a fair trial.  Keeton, 589 N.W.2d at 91.

The verdict in this case rested primarily on the testimony of N.S.  Consequently, the jury’s assessment of N.S.’s credibility was pivotal.  The state argues that the jury’s conviction of Young, despite Vernon Williams’s testimony that N.S. had smoked crack cocaine in the past, demonstrates that the jury found N.S. more credible than Williams.  Therefore, the state argues, the jury would have also discredited Williams’s testimony as to N.S.’s prior sexual conduct.

On the other hand, the jury acquitted Young on the two counts of first-degree criminal sexual conduct despite N.S.’s testimony about the violent nature of the assault and her claim that Young had threatened her with the knife.  Had the defense had an opportunity to rebut N.S.’s specific testimony on her sexual history and to present testimony supporting Williams’s claim that N.S. and S.J. showed signs of recognition at the identification procedure, the jury may have discounted additional elements of N.S.’s testimony.  In these circumstances, we are not convinced that the cumulative effect of the errors was harmless beyond a reasonable doubt.  We therefore reverse the conviction and remand for a new trial.

Reversed and remanded.