This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed April 11, 2006
Blue Earth County District Court
File No. K2-02-1164
Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and
Ross Arneson, Blue Earth County
Douglas H. R. Olson, Rider
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from criminal-sexual-conduct convictions and a 144-month sentence, appellant argues that he is entitled to a new trial because (1) the district court abused its discretion by issuing a pretrial order excluding evidence, (2) the prosecutor committed prejudicial misconduct, and (3) the district court abused its discretion by making various incorrect evidentiary rulings at trial. We affirm appellant’s convictions. In his reply brief, appellant also argues for the first time that his case should be remanded for resentencing because he was sentenced under a statute that became effective after the date of the conduct for which he was convicted. Respondent filed a motion to strike appellant’s sentencing argument on the ground that it was a new argument not made in appellant’s initial brief. In the interest of justice, we deny respondent’s motion to strike and reverse appellant’s sentence and remand for resentencing.
Appellant Kenneth Bohlman
lived on a horse-training and -stabling farm in
In December 2001, Bohlman received a letter threatening his grandson. In April 2002, A.B. gave a statement to a Blue Earth County Sheriff’s deputy in connection with the investigation of the threat. In her statement, A.B. claimed that Bohlman had sexually abused her for several years. A.B. stated that, as part of the sexual abuse, she performed acts of bestiality with a dog at Bohlman’s direction. As a result of A.B.’s statement, the sheriff’s department asked A.B. to meet with Bohlman and to wear a device to covertly record their conversation. A.B. agreed, and during a meeting with Bohlman, the following exchange took place:
A.B.: Did you regret f-cking me when I was fourteen?
Bohlman: I regret what it could have done to you.
A.B.: You don’t regret it?
Bohlman: No. I just thought the whole time that I was doing harm to you. I was so happy. But why couldn’t, why couldn’t you have been four years older?
Shortly afterwards, Bohlman was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b), (g) (1998), and three counts of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b), (e), (f) (1998).
At a pretrial hearing, the state successfully moved to exclude all evidence related to the allegations of bestiality, arguing that the evidence was irrelevant to the charged conduct and that the description of such deviant sex acts would be prejudicial to both parties and would “turn the jury off and stop them from listening.” Bohlman opposed the state’s motion, claiming that this evidence went to the overall credibility of A.B.’s claims. The prosecution also successfully moved to exclude evidence regarding allegations that A.B. had been previously sexually abused by her brother and neighborhood children, arguing that the evidence was irrelevant and protected by the rape-shield statute.
The jury found Bohlman guilty of two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. The district court denied Bohlman’s motion for acquittal or reversal and a new trial and sentenced him to 144 months in prison. This appeal follows.
D E C I S I O N
I. Exclusion of Evidence
Bohlman argues that the
district court committed reversible error by issuing a pretrial order excluding
evidence regarding (1) A.B.’s statement to the police that she performed acts
of bestiality with a dog at Bohlman’s direction and (2) the prior sexual abuse
that A.B. allegedly suffered. “Evidentiary
rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the trial
court abused its discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
A. Bestiality Evidence
pretrial order of
In addition, Bohlman argues
that the exclusion of the evidence violated his rights (1) to present a complete defense because he
was deprived of the opportunity to show the “full extent of the outrageousness
of [A.B.’s] claims” and (2) to confront his accuser. Under the Due Process Clauses of the
We conclude that the district court abused its discretion by excluding evidence regarding the allegations of bestiality. The evidence is clearly relevant to the determination of A.B.’s credibility because she claimed that the conduct was part of her sexual relationship with Bohlman. Further, it is not clear that this evidence would prejudice the state’s case; any possible prejudicial effect of the evidence might as likely be to Bohlman’s case. Thus, we determine that the probative value of the evidence outweighed any possible prejudice to the state. Because the evidence should have been admitted, Bohlman’s right to present a complete defense and to confront A.B. were violated.
But errors compromising
a defendant’s rights to present a complete defense and to confront his accuser are
subject to harmless-error analysis. See Greer,635 N.W.2d at 91; Pride,
528 N.W.2d at 867. A district court’s error is harmless only
if this court is “satisfied beyond a reasonable doubt that if the evidence had
been admitted and the damaging potential of the evidence fully realized, an
average jury (i.e., a reasonable
jury) would have reached the same verdict.”
State v. Post, 512 N.W.2d 99,
B. Evidence of Prior Sexual Abuse
The defense provided pretrial notice of its intent to introduce evidence concerning A.B.’s “history of sexual abuse.” The district court excluded the evidence on the ground that it was not relevant. Bohlman maintains that the district court abused its discretion because the evidence was necessary (1) to explain why A.B. lived at the farm, (2) to prove that A.B. had a “propensity to lie and fabricate claims” because she lied to the police when she gave them a statement in which she denied that she had been abused by her brother, and (3) to present the theory that A.B. was “psychologically damaged goods” as a result of the prior abuse.
The state argued that the
evidence not only was irrelevant but also was inadmissible under Minn. Stat. §
609.347, the rape-shield statute. This
statute provides that evidence of the prior sexual conduct of a victim is
admissible only when the consent of the victim is a defense or when the
prosecution’s case includes evidence of semen, pregnancy, or disease, and the
proffered evidence would rule out the defendant as “the source of the semen,
pregnancy, or disease.” Minn. Stat. §
609.347, subd. 3 (2004);
Further, even if the district court had abused its discretion, any error would have been harmless. The tape-recorded conversation between A.B. and Bohlman and the four years’ worth of birth-control pills missing from the pharmacy where Bohlman worked are compelling evidence of his guilt. Therefore, even if the evidence had been admitted and its damaging potential to the state’s case had been fully realized, we are satisfied that the jury would have reached the same verdict.
II. Prosecutorial Misconduct
Bohlman further argues that the
prosecutor committed misconduct, entitling him to a new trial. A defendant alleging
prosecutorial misconduct generally will not be granted a new trial if the
misconduct was harmless beyond a reasonable doubt. State
v. Atkins, 543 N.W.2d 642, 648 (
A. Hearsay Objections
Bohlman argues that the
prosecutor improperly insinuated that Bohlman had a responsibility to
testify. The prosecutor’s comments were
made in the context of hearsay objections by the state, during which the
prosecutor noted that Bohlman, rather than the testifying witness, would be the
proper individual to testify about the matters in question. But defense counsel failed to object to any
of these remarks at trial. “If the
defendant failed to object to the misconduct at trial, he forfeits the right to
have the issue considered on appeal, but if the error is sufficient, this court
may review.” Powers, 654 N.W.2d at 678.
Only when the misconduct is unduly prejudicial will relief be granted
absent a trial objection or request for instruction. State
v. Whittaker, 568 N.W.2d 440, 450 (
B. Questions Regarding Impotency Defense
Bohlman raised the defense that he could not have sexually abused A.B. because he was impotent. Bohlman argues that the prosecutor improperly shifted the burden of proof to Bohlman by questioning him on cross-examination about whether he had provided law enforcement with documentation supporting his claim of impotence. Because defense counsel failed to object to any of these questions at trial, Bohlman is entitled to a new trial only if the prosecutor’s questioning was unduly prejudicial. See id.
The state bears the burden
of proving all elements of a crime beyond a reasonable doubt throughout the
trial, and a prosecutor is prohibited from shifting the burden of proof to a
defendant to prove his innocence. State v. Race, 383 N.W.2d 656, 664 (
C. Closing Argument
Bohlman further argues that the prosecutor shifted the burden of proof to Bohlman by commenting in his closing argument on the lack of evidence supporting Bohlman’s impotency defense. When assessing prosecutorial misconduct in a closing argument, the argument will be considered as a whole. Powers, 654 N.W.2d at 678 (citing Johnson, 616 N.W.2d at 727-28). But as previously stated, the prosecutor’s comments regarding the lack of evidence for the defense’s theory did not shift the burden of proof. See Race, 383 N.W.2d at 664. Further, even if the prosecutor’s comments had been improper, they would have been harmless error. Because the district court, the prosecutor, and defense counsel repeatedly instructed the jury about the presumption of innocence and the burden of proof, it is unlikely that the comments played a substantial part in influencing the jury to convict Bohlman.
D. Witness Questioning
During the cross-examination
of Suzette Johnson, Bohlman’s girlfriend, the prosecutor asked questions about
e-mails that A.B. had received from an account that used “SEJlawfirm” as part
of its address. Because Johnson denied
sending the e-mails, Bohlman claims that the prosecutor engaged in misconduct by
cross-examining Johnson “concerning an email that she never authored, and, by
asking questions in an insinuating manner, suggest[ing] that she was lying
about authoring an email which indicated that she was having an affair with
some other person.” “[I]t is
unprofessional conduct to ask a question which implies a factual predicate
which the examiner cannot support by evidence or intentionally to mislead the
jury in argument as to inferences it may draw.”
III. Evidentiary Rulings at Trial
Bohlman argues that the district court abused its discretion
by making various improper evidentiary rulings at trial. This court will not reverse a district
court’s evidentiary rulings unless the district court clearly abused its
discretion. Amos, 658 N.W.2d at 203. On
appeal, the appellant has the burden of establishing not only that the district
court abused its discretion but also that prejudice resulted.
A. Admission of Transcript
Bohlman claims that the district court abused its
discretion by admitting into evidence a transcript of the tape-recorded conversation
between A.B. and Bohlman. While the
Minnesota Rules of Evidence require that to prove the content of a recording,
the original recording is required, jurors may be allowed to use a transcript
of a tape-recorded conversation as a listening aid if the district court
properly instructs the jury concerning the use of the transcript and the
Because Bohlman objected to the accuracy of the transcript, the district court should have allowed the transcript to be used only as a listening aid and should not have admitted it into evidence. Because we conclude that the district court erred by admitting that evidence, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. See Post, 512 N.W.2d at 102 n.2. If there is a reasonable possibility that the verdict might have been more favorable to Bohlman without the evidence, then the error is prejudicial. See id. Because (1) the transcript could have been properly used as a listening aid, (2) the district court instructed the jury that the “actual tape is the exhibit that you should consider as it relates to the content of the conversation and the context of statements contained on it,” and (3) Bohlman has not identified any substantive error in the transcript, we are satisfied that there is no reasonable possibility that the wrongfully admitted transcript significantly affected the verdict.
B. Playing of Tape
The district court allowed
the state to play a short portion of the tape-recorded conversation between
A.B. and Bohlman during the state’s cross-examination of Johnson for the
purpose of establishing that it was Bohlman’s voice on the tape. Because no questions had been posed to
Johnson concerning the conversation during the defense’s direct examination of
her, Bohlman maintains that playing the tape during cross-examination exceeded
the scope of Johnson’s direct examination, and the district court abused its
discretion by permitting it.
Cross-examination of a witness should be limited to the subject matter
of direct examination and any matters implicating the witness’s
The district court did not
abuse its discretion by permitting the prosecution to play a portion of the
tape. A district court “may, in the
exercise of discretion, permit inquiry into additional matters as if on direct
Bohlman argues that the
district court abused its discretion by admitting into evidence e-mails that
A.B. testified were from Bohlman. Bohlman
claims that because there was insufficient proof that he authored the e-mails,
there was not adequate foundation for their admission. The adequacy of the foundation for the
admission of physical evidence is reviewed for an abuse of discretion. State
v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992) (citing State v. Williams, 337 N.W.2d 689, 691 (
D. Exclusion of Witness Character Evidence
Bohlman maintains that the
district court abused its discretion by not allowing the defense to present
evidence regarding the truthful character of a particular witness, A.P. Evidence of truthful character is admissible
only when the witness’s character for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
In his reply brief, Bohlman
argues for the first time that his case should be remanded for resentencing. Bohlman was convicted for conduct that
occurred before April 20, 1999, and was sentenced to the presumptive 144-month
sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342,
subd. 2(b), which was not effective until August 1, 2000, and applies only to
crimes committed on or after that date. See 2000
Affirmed in part, reversed in part, and remanded; motion denied.