This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Ruben NMN Childs, Jr.,




Filed December 21, 2004


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 3029698



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Stephen V. Grigsby, 2915 Wayzata Boulevard South, Suite 101, Minneapolis, MN 55405 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Ruben NMN Childs, Jr. challenges his conviction of fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(c) (2002).  He argues the trial court erred when it ruled that evidence of the victim's prior sexual intercourse with Childs's brother was not admissible as an alternative explanation for injuries the victim sustained to her genitalia.  We affirm.


            It is uncontested that on the day in question Childs picked up the victim S.T. near her home in Saint Paul so she could meet with his brother in Minneapolis and that Childs was driving a company van at the time.  It is also uncontested that S.T. was not taken to see Childs's brother but that the two ended up parked near a lake in Eden Prairie. 

S.T. testified to the following events that occurred once they stopped. Against her will, Childs pulled up her shirt and sweater, exposing her breasts, and removed her pants and underwear.  Childs took off his pants and underwear and attempted to have sexual intercourse with her, but he was not able to penetrate her because she kept "moving a lot."  Childs also attempted to put his hand in her vagina.  Eventually, "he just got up and told [her] to have oral sex with him," but she refused.  After she refused to perform oral sex on Childs, he put his pants back on and returned to the driver's seat. 

It is uncontested that following the events inside the van, S.T. stated she wanted to walk home, she got out of the van, and Childs drove off, leaving S.T. to walk to Saint Paul from Eden Prairie.  It is also uncontested that shortly after the events in question S.T. was picked up by the police and taken to a nearby hospital where Karine Moe, a sexual assault nurse, examined S.T. 

Moe testified there were four distinct injuries to S.T.'s genitalia that were visible to the naked eye, and in her opinion the pattern of injuries was "very, very consistent with sexual assault," "really corroborated . . . what [S.T.] was saying about wiggling around," and  "looked to be very fresh."  

            Prior to trial, Childs moved the district court to allow him to introduce evidence that S.T. had prior sexual intercourse with his brother as an alternative explanation for the injuries to S.T.'s genitalia.  It was uncontested that S.T. had originally told all parties investigating the incident that she had been a virgin.  She then volunteered to the county attorney that she had actually had sexual intercourse with Childs's brother eight days before the current incident and that she considered him to be her boyfriend. 

The district court determined that under Minn. R. Evid. 412 Childs was required to make an offer of proof demonstrating the admissibility of S.T.'s prior sexual conduct and concluded: 

The offer of proof you have made is that there is a voluntary sexual act that took place eight days prior to the alleged involuntary sexual act here.  I can find no probative value from a voluntary sexual act that took place eight days prior.  It is your obligation to present an offer of proof.  You've made one; I find it insufficient; you can't go ahead with that line of questioning.



Appellate courts "review a [district] court's rulings on the sufficiency of offers of proof under an abuse of discretion standard."  Santiago v. State, 644 N.W.2d 425, 442 (Minn. 2002).  Under Minn. R. Evid. 412,

evidence 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 under the procedure provided in rule 412.  Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature


. . . . 


The accused may not offer evidence described in rule 412(1) except [by a] motion . . . made by the accused prior to the trial, unless later for good cause shown, setting out with particularity the offer of proof of the evidence that the accused intends to offer, relative to the previous sexual conduct of the victim.


Minn. R. Evid. 412 unambiguously requires Childs to present to the district court a sufficient offer of proof demonstrating the admissibility of S.T.'s prior sexual contact.  An offer of proof can be made in one of two ways; either the attorney can tell the district court what the proposed testimony will be or the attorney can examine the witness and elicit the testimony.  Santiago, 644 N.W.2d at 442.  An attorney's statement of the proposed testimony is a sufficient offer of proof "if it is sufficiently specific and there is nothing in the record to indicate a want of good faith or inability to produce the proof."  Id. (quotation omitted).     

Here, Childs's offer of proof was that S.T. had consensual sexual intercourse with his brother eight days before the incident in question and his counsel's statement after the district court ruled he had not made a sufficient offer of proof that, "I haven't had time to fully consult with the expert with respect to the observations.  I expect my expert — I don't know yet and I don't want to tell the court this, to say that what she's observing there are consistent with a young woman having had consensual sex eight days prior."  A generalized statement as to what an attorney thinks an expert witness might say without consulting with that witness is not a sufficient offer of proof.  See id.  The district court did not abuse its discretion in ruling that Childs had failed to make a sufficient offer of proof as required under rule 412.

We note that on appeal Childs frames his argument as a deprivation of his constitutional rights.  Even when the exclusion of evidence is challenged as a violation of constitutional rights, appellate courts review the exclusion under the abuse of discretion standard. State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985).  Further, a criminal defendant's right to present evidence in his defense is limited by the rules of evidence, and there is no right to present irrelevant evidence.  State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983).  The district court did not abuse its discretion in ruling that the limited probative value of the evidence that S.T. had consensual sex more than a week earlier did not warrant its admission.