This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Robert Dean Sonnenberg,



Filed January 17, 2005


Shumaker, Judge


Goodhue County District Court

File No. K9-03-1852



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


Stephen Betcher, Goodhue County Attorney, Erin L. K. Schmickle, Assistant County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 565414 (for appellant




            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Worke, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant alleges that the district court committed evidentiary error in his trial on charges of criminal sexual conduct and that the evidence was insufficient to support his conviction.  Because the district court did not commit reversible error and because the evidence was sufficient to support the verdict, we affirm.


Appellant Robert Dean Sonnenberg was convicted of criminal sexual conduct in the first and third degrees, both of which require proof of sexual penetration.  He contends that the district court erred by allowing into evidence certain out‑of‑court statements by the complainant and that there was no proof of penetration.

The complainant, K.B., and her boyfriend, M.T., had been drinking alcohol in their apartment and got into a fight.  M.T. physically assaulted K.B., and Sonnenberg, who was a guest of the couple at the time, called the police.  M.T. was arrested.

Over the next three days, K.B. continued to drink alcohol, and when she learned that her boyfriend would likely spend a long time in jail she became a “nervous wreck.”  Sonnenberg was a close friend of K.B., and he kept in contact with her and offered his help and support.

Some time after midnight on November 12, 2003, Sonnenberg came into K.B.’s apartment while she was sleeping.  He went into her bedroom and she woke up.  The evidence is in conflict as to what happened in the bedroom.  K.B. testified that Sonnenberg tried to rape her and that she struggled and fought with him.  Sonnenberg denied any sexual conduct and contended that K.B. became violent and he was merely trying to restrain her.

In an interview with the police a few hours after the incident, K.B. stated that Sonnenberg penetrated her vaginally and anally.  At trial, she testified that she did not know whether Sonnenberg had penetrated her and that she did not recall telling the police that he had done so.  The court allowed K.B.’s transcribed police interview into evidence.  Sonnenberg contends this was error and that, without the prior statement, there was no evidence that he penetrated her.


Evidentiary Rulings

Sonnenberg’s first complaint on appeal is that the district court committed prejudicial error when it admitted into evidence the transcript of a law enforcement officer’s interview with K.B. after the alleged sexual assault on her.

“Evidentiary rulings are within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

a.         Admissibility of Transcript of K.B.’s Interview.

During his cross‑examination of K.B., defense counsel frequently referred to prior statements that K.B. made to law enforcement officers that were inconsistent with her trial testimony.  Before asking questions about those prior statements, defense counsel had the transcript of the interview during which K.B. made the statements marked as a trial exhibit.

At the end of the cross‑examination, the prosecutor stated that, because defense counsel used portions of the transcript in his cross‑examination, the state was entitled to offer the entire document into evidence under Minn. R. Evid. 106, the rule of completeness, and under Minn. R. Evid. 801(d)(1)(B), the prior consistent statement rule.

Defense counsel responded that he had no obligation to offer the exhibit, that he used the transcript to point out inconsistent statements, and that he had accomplished his purpose without actually offering the exhibit itself into evidence.  He indicated that, if the state had a legitimate basis for the introduction of the exhibit, the court could make the appropriate ruling.

The court then ruled that the transcript was admissible on the grounds urged by the prosecutor.  Although on appeal Sonnenberg claims he objected to the admission of the transcript and that the court overruled his objection, the record fails to disclose any such objection or ruling.

When portions of writings or recorded statements are introduced into evidence, the court may, in the interest of providing a fair context, require other portions or other writings to be introduced at the same time:  “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing which ought in fairness to be considered contemporaneously with it.”  Minn. R. Evid. 106.

Rule 106 applies only to the introduction of writings and recorded statements as documentary exhibits and does not pertain to conversations or interviews about which questions are asked at trial.  State v. Mills, 562 N.W.2d 276, 286 n.8 (Minn. 1997).  Defense counsel did not offer into evidence the transcript of the recorded interview of K.B. but rather asked her only about her prior statements, which coincidentally had been transcribed. Thus, rule 106 did not apply to the state’s offer of the transcript as a documentary exhibit, and the court’s reliance on that rule as a basis for admissibility was misplaced.

Despite the inapplicability of rule 106, Minn. R. Evid. 611(a) vests trial courts with “control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth . . . .” (emphasis added).  Under this rule, “[b]road discretion remains in the trial judge to determine when the entire document must be admitted or perhaps which portions, if any, should be admitted.  The only guideline is the broad concept of fairness.”  11 Peter N. Thompson, Minnesota Practice § 106.01, at 65 (3d ed. 2001).

Defense counsel’s cross‑examination of K.B. centered predominantly on statements she made during her interview with law enforcement officers, and counsel often quoted or paraphrased such statements.  Because of defense counsel’s extensive references to K.B.’s prior statements, the court reasonably could have concluded that the jury would be assisted in assessing the believability and weight of the statements in light of K.B.’s trial testimony if the jury had the benefit of the full context of the interview.  A reasonable mode of providing that context was the receipt of the transcript as a documentary exhibit.  We examine the admissibility of particular statements in the transcript below, but on the issue of the admissibility of the transcript as a documentary exhibit, we hold that the district court did not abuse its discretion under rule 611(a) in its ruling.

b.         Admissibility of K.B.’s Interview Statements

The state offered K.B.’s interview statements as prior consistent statements, which are nonhearsay under Minn. R. Evid. 801(d)(1)(B).  The court allowed the statements under that rule.  Sonnenberg claims this ruling was error, and we agree.

Rule 801(d)(1)(B) permits the receipt into evidence of prior statements of a declarant that are consistent with the declarant’s trial testimony, subject to other requirements not at issue here.  The declarant’s prior statement and trial testimony need not be absolutely identical but they must be substantially and reasonably consistent to qualify for admission under rule 801(d)(1)(B).  State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000).

In her prior statement to law enforcement, K.B. said that Sonnenberg had intercourse with her and that “[h]e did it to me and that way and then he turned me around and sodomized me and said there you go bitch.”  At trial, K.B. testified that she did not “know if he was able to get inside me . . . .”  And she testified that she did not recall telling the law enforcement officers that Sonnenberg penetrated her or had forcible intercourse with her.

A declarant’s prior statement alleging sexual penetration is not consistent with the declarant’s trial testimony that she does not recall previously alleging sexual penetration.  Thus, K.B.’s prior statements describing the alleged sexual assault do not qualify for admission into evidence under rule 801(d)(1)(B), and the court erred by allowing them under that rule.

But our inquiry does not end there.  All of the prior inconsistent statements that defense counsel elicited on cross‑examination were admissible as impeachment evidence.  And nearly all of the rest of the statements were likely admissible under various evidentiary rules.

K.B.’s pejorative references to Sonnenberg were admissible as evidence of bias under Minn. R. Evid. 616.  The fact that the prosecution offered this evidence is of no significance because Minn. R. Evid. 607 permits any party to impeach a witness, even that party’s own witness.

The interview transcript reveals a distraught K.B. who is being interrogated a few hours after the alleged sexual assault.  Many of her statements likely would have qualified as excited utterances under Minn. R. Evid. 803(2).  And K.B.’s frequent references to her pain and to her emotional state, such as “I want to die,” were possibly admissible under Minn. R. Evid. 803(3)

Sonnenberg contends that statements by the law enforcement interviewer were inadmissible as well as K.B.’s “statements seeking sympathy . . . because she has nothing . . . , she has no one to help her . . . .”  The interviewer’s statements were efforts to keep K.B. from digressing, and the questions gave a necessary context for K.B.’s answers.  We find no evidentiary error as to the interviewer’s statements.  K.B.’s expressions of concern about having no one to help her were directed at the fact that her boyfriend was in jail and not available to assist her.  The statements were marginally relevant at best, but they were few and revealed nothing the jury could not have deduced on its own from the admissible evidence.  Part of that evidence was provided by defense counsel on cross‑examination when he illustrated K.B.’s dependency on her boyfriend by having her admit that she was not employed and that her boyfriend was paying for her apartment.

Sonnenberg also contends that he suffered unfair prejudice when the court received K.B.’s transcribed interview as a documentary exhibit that was given to the jury for deliberations but that his own tape‑recorded interview was played only once for the jury.  The state did not offer into evidence the transcript of Sonnenberg’s interview, which contained both exculpatory and inculpatory material.  This was the prosecutor’s choice, and it does not appear that defense counsel objected to revealing Sonnenberg’s interview merely through playing the tape-recording.  Sonnenberg did not testify at trial, and the jury heard his version in all its particularity through the tape‑recorded interview.  We find no abuse of discretion in the procedure used for introducing Sonnenberg’s statement into evidence.  Furthermore, Sonnenberg could not have offered the statement himself because it was inadmissible hearsay.  See Minn. R. Evid. 801(d)(2) (admission by party opponent is nonhearsay if “offered against a party.”).

We find no evidentiary error that would justify a reversal of the verdict.

Sufficiency of the Evidence

Sonnenberg contends that the state failed to prove that he sexually penetrated K.B., and that penetration is an essential element of each of the counts of which he was convicted.  He argues that K.B.’s prior inadmissible statements are the only evidence of penetration.  Although, as we have noted, it is possible that some of K.B.’s prior statements were admissible as substantive evidence, we have confined our analysis to the evidence without K.B.’s prior statements.

When it is claimed that the evidence was insufficient to support the verdict, we make a painstaking review of the record to determine whether the evidence, and the reasonable inferences to be drawn, will support the jury’s determination.  Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004).  In our review, we consider the evidence in a light most favorable to the verdict.  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

If the verdict is based on circumstantial evidence, the circumstances must be consistent with the hypothesis that the accused is guilty and inconsistent with any other reasonable hypothesis.  State v. Mathews, 425 N.W.2d 593, 596 (Minn. App. 1988) (citation omitted).  In a conviction based on circumstantial evidence, the facts must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  State v. DeZeler, 230 Minn. 39, 52, 41 N.W.2d 313, 322 (1950).  However, the evidence as a whole need not exclude all possibility that the accused is innocent, but must make a theory of innocence seem unreasonable.  Mathews, 425 N.W.2d at 596 (citation omitted).

As to issues of credibility, the “jury is in the best position to evaluate the evidence and its verdict is entitled to due deference.”  State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).  When resolution of the case depends on the resolution of conflicting testimony, the weight and credibility of the evidence are within the exclusive province of the jury.  State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998).

Sonnenberg assails K.B.’s testimony, pointing out that she admitted to being intoxicated and not clearly recalling and that she testified that she did not know whether she had been penetrated.  He also emphasizes her several prior inconsistent statements.  But even when a sexual assault victim’s previous statement differs from her trial testimony, the jury may still believe the victim.  State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (holding the jury was entitled to believe the victim even though her version of the sexual assault changed after time), review denied (Minn. May 23, 1990).  We have held that inconsistencies in statements can be “a sign of human fallibility and do not prove testimony is false, especially when the testimony is about a traumatic event.”  State v. Mosby, 450 N.W.2d 629, 634 (Minn. App. 1990) (citation omitted), review denied (Minn. Mar. 16, 1990).

Some of the evidence is not in dispute.  K.B. had been assaulted by her boyfriend.  When she learned that he might be in jail for a considerable time, she became distraught and was thrown into turmoil.  Sonnenberg was a good friend who ostensibly offered to help and comfort K.B. during her difficult time.

Some time after midnight on November 12, Sonnenberg entered K.B.’s apartment, went into her bedroom and jumped on K.B.’s bed.  She woke up and, according to Sonnenberg, was “spazzing out.”  They had a physical confrontation during which Sonnenberg pinned K.B. down.  She scratched him and said, “You’re raping me, you’re raping me.”

Beyond these undisputed facts, the versions diverge.  Sonnenberg contends that he was simply trying to control K.B. on her bedroom floor to keep her from hitting him and that he had no sexual contact with her.  He admits that her pants were unzipped and that they came down as he tried to place her on the floor.

K.B. testified that she woke up and found Sonnenberg at the foot of her bed stroking his penis.  He said that he was going to enter her and they struggled as he tried to put his penis inside her.  She grabbed at him as he held her legs down.  On cross‑examination, she explained the sensation she felt:

Q.        So, if that’s the case, you never actually saw Mr.   Sonnenberg put his penis in your vagina, correct?


A.        No.  But I felt, I did feel pressure down there in that         area.


After the encounter with Sonnenberg, K.B. felt vaginal and rectal pain.  An emergency physician trained in sexual-assault examinations examined K.B. and found dried blood and a fissure in her rectal area.  He testified that his findings were consistent with forcible anal penetration.

Sonnenberg argues that the fissure could have occurred in various natural ways other than forcible penetration.  But there was no evidence of any of those other occurrences, and thus it is entirely speculative that the cause of the fissure was anything other than forcible penetration.

Accepting the state’s evidence as true, there is sufficient evidence from which the jury could conclude beyond a reasonable doubt that Sonnenberg committed a sexual assault on K.B.  And the jury could reasonably have rejected his hypothesis that K.B. just “spazzed out.”  It is implausible that K.B. would have reacted violently to a good friend who had shown his willingness to support her in her time of need.

It is not implausible that this same friend entered K.B.’s apartment late at night without having been invited, went into her bedroom, engaged in conduct or made statements that K.B. interpreted as an intent to have intercourse with her, and she violently tried to fend him off.  And it is not implausible that the pressure she felt was a forcible penetration of her rectum, which was corroborated by medical findings.

The evidence was sufficient to support an inference of penetration and to support the verdict.