This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Grant Wayne Cayo,
Filed June 15, 2004
Reversed and remanded; motion granted
Hennepin County District Court
File No. 02026995
James G. Ryan, 820 IDS Center, 80 South Eighth Street, Minneapolis, MN 55420 (for appellant);
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55010-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.
G. BARRY ANDERSON, Judge
In this prosecution for criminal sexual conduct, appellant sought to introduce evidence that the victim had a motive to fabricate testimony to protect her relationship with a third party. The district court refused to permit introduction of any evidence indicating that the third-party relationship was sexual in nature and otherwise limited the testimony about the relationship between the victim and the third party. We reverse and remand.
In the fall of 2001, A.S. was 11 and 12 years old, and appellant, Grant Wayne Cayo, was 19 years old. A.S. and appellant were part of a group of friends that were mostly 14 to 16 years in age. Included in that group was D.R.B., then 15 years old.
A.S. testified that D.R.B. had been her boyfriend at one point and that they had been “different or better than just friends.” In the spring of 2001, it appears that A.S. and D.R.B. had been close. In the summer and fall of 2001, D.R.B. and A.S. had little contact, but on February 24, 2002, A.S. was discovered hiding in D.R.B.’s home (with D.R.B.’s knowledge) after the parents of A.S. had reported to the police that A.S. had run away from home. D.R.B. went through delinquency proceedings with regard to his actions with A.S. and was, apparently, adjudicated delinquent.
A.S. met appellant in late September 2001; D.R.B. was dating a friend of A.S. at the time. A.S. testified that the second time she saw appellant, he was driving his father’s truck. Appellant gave A.S. and others a ride. After dropping the others off, appellant and A.S. went to a cul-de-sac, sat in the truck, and had a conversation.
A.S. testified that the conversation turned sexual and led to kissing. Appellant then asked A.S. if she “had ever done anything orally to anyone,” and A.S. testified that she replied in the affirmative, mentioning D.R.B. According to A.S., appellant then asked A.S. if she would perform fellatio on him, which she did. Then, appellant and A.S. drove off but stopped in a parking lot by a factory and A.S. again performed fellatio on appellant. A.S. testified that, at the time, she wished to have a relationship with appellant. A.S. also testified that approximately two or three weeks later, appellant digitally penetrated A.S., and A.S. performed fellatio on appellant. Appellant denied all of those assertions.
A.S. testified that, after these first sexual encounters, appellant called her and urged her to sneak out of her house and that appellant wanted A.S. to perform fellatio on him. A.S.’s mother testified that she overheard a telephone conversation between A.S. and a male whose voice A.S.’s mother did not recognize. A.S.’s mother testified that the male wanted A.S. to sneak out of the house “so they could finish what they had started” and that the male wanted “to be inside” A.S. The conversation included vulgar terms, which may have been meant to describe sexual acts. A.S.’s mother testified that she heard A.S. address the male on the telephone as “Grant.”
After A.S. went to bed, A.S.’s mother and father went to the destination specified by the male and confronted appellant. Appellant initially denied the telephone conversation with A.S. Appellant then admitted to the telephone conversation with A.S. but stated he merely returned her call, the conversation was only five minutes long (A.S.’s mother testified that she listened for fifteen minutes and only heard part of it), and there were sexual overtones to the conversation but only about other people.
Appellant was charged with and convicted of two counts of first-degree criminal sexual conduct.
Under the Confrontation and Due Process clauses of the U.S. and Minnesota constitutions, “[e]very criminal defendant has a right to fundamental fairness and to be afforded a meaningful opportunity to present a complete defense,” which includes the defendant’s right “to advance his or her theory of the case by revealing an adverse witness’s bias or disposition to lie” and “to develop the defendant’s version of the facts.” State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (quotation omitted), review denied (Minn. Jan. 23, 1996). Thus, “courts must allow defendants to present evidence that is material and favorable to their theory of the case,” but there is “no right to introduce evidence that either is irrelevant, or whose prejudicial effect outweighs its probative value.” Id. at 866 (emphasis in original).
In prosecutions of the type at issue here, Minnesota Statute section 609.347, subdivision 3, commonly known as the rape-shield law, and Minnesota Rule of Evidence 412(1) state, “[E]vidence of the victim’s previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court order.” Minn. Stat. § 609.347, subd. 3 (2002); Minn. R. Evid. 412(1). In general, and as relevant here, such evidence is admissible only in certain circumstances and where the probative value of the evidence is not substantially outweighed by the prejudicial or inflammatory nature of the evidence. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1). But in the event there is a conflict between the protections afforded alleged victims under the rape-shield law and rule 412 and the defendant’s constitutional rights, the defendant’s constitutional rights prevail and the evidence is admissible. Crims, 540 N.W.2d at 866. The district court’s ruling is reviewed for an abuse of discretion and, even if the defendant’s rights were violated, the decision is still reviewed for harmless error. State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).
1. Limitation on testimony and argument
Appellant argues first that evidence was received concerning A.S.’s relationship with D.R.B. but that the district court impermissibly prevented appellant from commenting on the admitted evidence or introducing additional evidence concerning the relationship.
a. Right to comment on evidence
Appellant argues that the district court impermissibly prevented him from commenting on the evidence that A.S. and D.R.B. had a sexual relationship. We agree.
In State v. Carroll, the defendant was charged with multiple counts of criminal sexual conduct. 639 N.W.2d 623, 626 (Minn. App. 2002). Prior to trial, the alleged victim had made a videotaped statement that the defendant had not committed any sexual misconduct. Id. at 625. Later, the alleged victim stated that the defendant had committed sexual misconduct and attempted to explain her previous statement to the contrary. Id. at 625-26.
The district court admitted both statements but did not allow the defendant to cross-examine the alleged victim about the inconsistencies, introduce the testimony of other witnesses concerning the inconsistencies, or reference the inconsistency in his closing argument. Id. at 626. We concluded, “[O]nce evidence is admitted in a trial and heard by the jury, thus giving the jury the right to consider it for whatever it is worth, we cannot fathom a case where either the state’s attorney or the defendant’s attorney is not allowed to refer to evidence that has been admitted!” Id. at 629 (emphasis in original). We held, “[A] court must allow attorneys to comment on and use admitted evidence,” although the district court must closely monitor the arguments for abuses of commentary and witness examination. Id. (emphasis in original).
Here, testimony was admitted that A.S. had done something “orally” with D.R.B. yet the district court refused to permit appellant to comment on this fact. Because evidence of a sexual relationship between A.S. and D.R.B. was admitted, appellant was entitled under Carroll to comment on the evidence, and the district court’s failure to allow comment on this evidence is error.
b. Introduction of evidence of a sexual relationship
In addition to commenting on or arguing about the implied reference to a sexual relationship between A.S. and D.R.B, appellant also argues that he should have been permitted to probe every occurrence of sexual contact between A.S. and D.R.B. as part of his defense that A.S. was fabricating her claims against appellant. Although we agree with appellant that the district court abused its discretion in refusing to allow appellant to introduce any evidence concerning the fact that A.S. and D.R.B. had a sexual relationship, we disagree that he is entitled to introduce detailed evidence regarding specific sexual acts on specific dates to establish his defense.
In State v. Pride, the defendant was accused of having “nonconsensual sexual contact” with the alleged victim. 528 N.W.2d 862, 863 (Minn. 1995). At trial, the defendant unsuccessfully attempted to cross-examine both the alleged victim and the police officer filing the report about the victim’s romantic relationship with the officer to show, inter alia, the victim’s motive to fabricate the crime. Id. at 864. The defendant’s “theory of the case was that [the victim] fabricated the incident in an effort to move her relationship with [the officer] from friendly to romantic, and that once successful, she had to maintain the story to preserve the relationship.” Id. at 865. The supreme court stated that it was necessary to introduce the testimony to provide “a complete picture of [the victim’s] possible motive to fabricate her charges” and that there was no showing that the probative value of the evidence was substantially outweighed by the unfair prejudice as rule 403 requires. Id. at 866-67. The supreme court concluded, “[E]vidence of [the victim]’s and [the officer]’s romantic relationship should have been admitted to give the jury as much relevant evidence as possible to make th[e credibility] evaluation. Further, our decision should not be taken as affecting our prior holdings regarding cross-examination of a victim with respect to sexual history.” Id. at 867.
The district court affirmatively precluded appellant from commenting on already-admitted evidence that implied a sexual relationship between A.S. and D.R.B. and also precluded the introduction of direct evidence of the sexual relationship between A.S. and D.R.B. Although we acknowledge the difficulty associated with determining what evidence is admissible and what evidence must be excluded, we conclude that the district court abused its discretion in forbidding appellant from introducing evidence that A.S. and D.R.B. had a sexual relationship; given the fabrication defense here, the absence of evidence of the sexual relationship deprived the jury of a complete picture of the events. See id. at 866-67 (determining that it is an abuse of discretion to prevent a defendant from introducing evidence of a sexual relationship between the complainant and a third party when that ruling prevents the defendant from creating a complete picture of the complainant’s motive to fabricate for the jury).
But although we agree with appellant that the district court abused its discretion in prohibiting all evidence of a sexual relationship between A.S. and D.R.B., we do not agree with appellant that he was therefore entitled to bring to light the specifics of every act. Once the evidence of the sexual relationship between A.S. and D.R.B. is admitted, appellant is free to argue that, because this relationship was sexual and forbidden by A.S.’s parents, A.S. had a reason to fabricate that any sexual relationship she had was with appellant, not D.R.B. Additional detail, as the district court properly recognized, is irrelevant, unfairly prejudicial, and prohibited by the rape-shield law and rule 412. Although we have concluded that it was error to exclude all testimony about the sexual relationship between A.S. and D.R.B. and to prohibit comment on such evidence as was already in the record, it is within the sound discretion of the district court to shape appropriate restrictions on the use of the sexual-relationship testimony.
2. Harmless error
Although we have concluded that the district court abused its discretion in prohibiting appellant from introducing evidence establishing that A.S. and D.R.B. had a sexual relationship and from commenting on evidence admitted at trial, we must also address whether this error is so prejudicial as to require remand and, in this case, retrial. If the error is harmless beyond a reasonable doubt, then we will affirm regardless of the error. State v. Kroshus, 447 N.W.2d 203, 205 (Minn. App. 1989), review denied (Minn. Dec. 20, 1989). This examination revolves around the strength of the state’s case. Id.
Here, the state has conceded that this criminal prosecution is a matter of witness credibility. While appellant’s argument that A.S. had a motive to fabricate is hardly overwhelming, we cannot say, on this record, that depriving appellant of the opportunity to make the argument was harmless. While the record contains corroborating evidence of some of the peripheral details of the testimony of A.S., on the critical question of whether appellant committed the acts with which he is charged, the jury must, essentially, decide whether appellant or A.S. is more believable. And motive to fabricate goes to the heart of answering that question. Therefore, the error here was not harmless.
3. Motion to strike
In his reply brief, appellant asks that respondent’s confidential appendix and all references to it in respondent’s brief be stricken because the documents contained in the confidential appendix are not part of the record. “The court will strike documents included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d 504 N.W.2d 758 (Minn. 1993).
Appellant’s assertion that the materials contained in the confidential appendix are not part of the record is correct. Appellant points to a number of facts cited in respondent’s brief that rely on the confidential appendix. Because those documents are not part of the record, we strike respondent’s confidential appendix and all references to it.
Because we remand this matter for a new trial, we do not consider appellant’s arguments concerning sentencing.
Reversed and remanded; motion granted.
 The district court ruled:
[I]t’s been elicited by the prosecutor that there was a relationship between [A.S. and D.R.B.] and that is fair game. If you [appellant] were to [e]licit (sic) testimony that this was a relationship that the parents didn’t like, . . . and then somehow if you want to infer . . . reason to fabricate this case against your client, you can do that. You just may not talk about the fact that she was sexually intimate with [D.R.B.], if they had intercourse, if they had oral sex, if he digitally penetrated her or anything like that.
It is the specifics of the sexual activity that is prohibited, not the fact that they had a relationship.
 Appellant argues, and respondent disputes, that the prosecution also “opened the door” to evidence regarding motive to fabricate by introducing testimony that the victim had no motive to fabricate a relationship with appellant. Because we decide this case on other grounds, we do not reach this argument.
 The district court explained, “The ruling of the court was that you may not [e]licit any testimony with regard to the sexual activity between [A.S.] in this matter and [D.R.B.].”