This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-96-422

State of Minnesota,
Appellant,

vs.

David Dean Hawkinson,
Respondent.

Filed September 3, 1996
Affirmed in part, reversed in part, and remanded
Norton, Judge

Stevens County District Court
File No. K6-95-59

Charles C. Glasrud, Stevens County Attorney, 109 East Sixth Street, PO Box 66, Morris, MN 56267 (for Appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson & Brutlag Chtd., PO Box 527, Morris, MN 56267 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge
This is a prosecution pretrial appeal. Respondent, a restaurant owner, has been charged with criminal sexual conduct with two employees. The state challenges the trial court's decision that testimony regarding one of the victim's prior sexual conduct with a co-worker and a supervisor would be admissible at trial. We reverse, because evidence of a kissing incident with a co-worker at work and evidence of a consensual relationship with a supervisor outside the workplace do not overcome the high threshold for admission required by Minn. R. Evid.
Respondent noticed review of the trial court's ruling excluding evidence of alleged sexual contact between S.L. and individuals with no employment relationship to her. We affirm the exclusion of that evidence.
FACTS
S.L., age 19, reported to the police on November1994, that she had been sexually assaulted three times in October 1994 by respondent, the owner of a restaurant where she had been working. She described incidents on Octoberand 19 where respondent placed one hand on her breast and the other hand on her clothing covering her vaginal area. S.L. forced respondent to release his grip on both occasions. During the second incident, respondent also kissed S.L. on the mouth.
The final incident occurred on October1994, when S.L. was putting items into a storage shed behind the restaurant. Respondent kissed her on the mouth; S.L. turned away. Respondent then placed his hands on S.L.'s breast and between her legs as he had done before. When S.L. turned in reaction to this, respondent grabbed her left hand and placed it on his crotch and caused her to rub her hand on his private parts through his clothing. Respondent then unzipped his pants, grabbed S.L. by the hair, and pushed her head down with such force that her mouth came in contact with his penis, which pushed her lips aside causing his penis to come into contact with her teeth. Respondent then demanded that S.L. perform oral sex.
S.L. told the officers that none of this conduct took place with her consent. In the course of interviewing other present and former restaurant employees, one of the officers spoke with S.R., an 18-year-old woman, who reported that respondent had once reached across the counter and placed his hand on her breast without her consent.
Respondent was charged with one count of third-degree criminal sexual conduct, one count of attempted third-degree criminal sexual conduct, one count of fourth-degree criminal sexual conduct, and four counts of fifth-degree criminal sexual conduct. All counts, except one count of fifth-degree criminal sexual conduct, relate to alleged conduct between respondent and S.L., who has filed a civil action against respondent.
Respondent entered not guilty pleas and moved for an evidentiary hearing seeking to have testimony admitted showing that S.L. had some form of sexual activity or sexual relationship with at least 14 different males in the 16-month period prior to the time respondent allegedly assaulted her, that S.L. has reported herself as the victim of three other sexual assault matters (two of them when she was 13 years of age), and that she has been involved in sexual incidents or intimate relationships with three individuals who had been either her co-employees or supervisors. The trial court granted an evidentiary hearing regarding only these last three individuals, but one of them failed to appear.
Reagan Collett, age 24, testified that he met S.L. at a restaurant where he was assistant manager and she was a counter employee. According to both Collett and S.L., they had a consensual sexual relationship for a period of time, followed by a period of friendship. Their accounts of the duration and details of their sexual relationship differ, but both agree that no sexual contact occurred at work.
Gregory Sperr had worked with S.L. at a restaurant. He was a co-employee with less seniority than S.L. He testified about an incident at work where he embraced and kissed S.L. after he stuffed ice down her shirt. He thought the embrace was mutual and explained that he felt S.L.'s arms around his back and her tongue in his mouth. When he learned that the restaurant was going to terminate his employment because of this incident, Sperr resigned.
In her deposition, S.L. stated that she objected when Sperr put ice down her shirt. Sperr then got in front of her and kissed her. She was "completely uncomfortable," she thought Sperr's behavior was "out of line," and she reported it. She denied that it was a mutual embrace, or that she reciprocated in Sperr's kiss. S.L. explained that Sperr, an epileptic, had seizures at work and previously had told her he would have thoughts of sexual activities with S.L. during his seizures. After the kissing incident, S.L. asked the restaurant to schedule her so she would not have to work with Sperr. She did not know whether Sperr was fired or just quit; she explained that her only concern was that she not have to be around him at work.
D
To prevail in a pretrial appeal,
the state must "clearly and unequivocally" show both that the trial court's order will have a "critical impact" on the state's ability to prosecute the defendant successfully and that the order constituted error.

State v. Zanter , 535 N.W.2d 624, 630 (Minn. 1995) (quoting State v. Joon Kyu Kim , 398 N.W.2d 544, 547 (Minn. 1987)). Critical impact is shown when the ruling "significantly reduces the likelihood of a successful prosecution." Id. (quoting Joon Kyu Kim at 551).
Several factors support a finding of critical impact. First, S.L.'s credibility is critically important, because there is no third-party witness to the alleged misconduct; this case involves the word of S.L. against that of the respondent. Further, the legislature's enactment of the rape-shield statute, and the supreme court's later promulgation of a substantively similar rule of evidence, recognize the highly prejudicial impact on the jury when it hears of a victim's previous sexual conduct. See Minn. Stat. §subd. 3 (1994) (rape-shield statute); Minn. R. Evid. Finally, the state cannot appeal from a judgment of acquittal after a jury returns a verdict of not guilty. Minn. R. Crim. P. Thus, if the trial court allows testimony concerning clearly inadmissible evidence of a victim's prior sexual conduct and this evidence prejudices the jury, as the rape-shield law presumes it will, the state will not have another opportunity to correct the error and retry respondent.
Under these circumstances, the state has demonstrated that the admission of evidence of S.L.'s prior sexual conduct will have a critical impact on the outcome of the trial. Accordingly, we now turn to whether the trial court "clearly and unequivocally" erred in its evidentiary rulings. Zanter , 535 N.W.2d at 630.
1.rape-shield statute and evidentiary rule.

We first must determine whether the rape-shield statute or the evidentiary rule governs the admission of evidence here. The trial court determined that the rule governs. We agree, but hold that the trial court incorrectly construed that rule.
Both Minn. Stat. §commonly referred to as the "rape-shield statute," and Minn. R. Evid.prohibit the introduction of evidence of a victim's prior sexual conduct, except in certain carefully delineated circumstances. The rule and the statute are very similar. They both provide that, in a prosecution for criminal sexual conduct, evidence of the complainant'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. R. Evid.Minn. Stat. §subd. 3.
The statute allows that, "[w]hen consent of the victim is a defense in the case," evidence of the victim's previous sexual conduct is admissible if it tends
to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue. In order to find a common scheme or plan, the judge must find that the victim made prior allegations of sexual assault which were fabricated.

Minn. Stat. §subd. 3(a)(i). Rule 412 has language similar to the statute, except that it does not contain the provision from the statute that "the judge must find that the victim made prior allegations of sexual assault which were fabricated." Compare Minn. R. Evid.(1)(A)(i) with Minn. Stat. §subd. 3 (a)(i). Instead, the rule provides that evidence is admissible "[w]hen consent of the victim is a defense in the case" and evidence of the victim's previous sexual conduct tends
to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent.

Minn. R. Evid.(1)(A)(i).
Statutes relating to evidence are in effect until the supreme court promulgates a rule of evidence that modifies or supersedes the statute. Minn. Stat. §subd. 6 (1994). Here, the comments to rule 412 specifically note that the rule modifies subdivisions 3 and 4 of the statute. Minn. R. Evid.comm. cmt. 1 Thus, subdivision 3 of the rape-shield statute has been replaced by rule 412, which now governs the admissibility of evidence of previous sexual conduct of a victim. Minn. Stat. §subd. 6.
The trial court reviewed the differences between the statute and rule and concluded that the "statute goes further [than rule 412] and provides that additionally the trial court must find that the victim made prior allegations of sexual assault which were fabricated." By its subsequent decision, it is apparent that the trial court determined that fabrication is not a consideration under rule 412, and that the rule is less strict in admitting evidence than is the statute. This is error. The committee comments to the rule indicate that the rule's deletion of the requirement of a finding of fabrication was intended to narrow, rather than broaden, the statute's scope:
Although the Committee agreed in substance with the thrust of the statute, because of the many questions that were created by the language in the statute, the Committee could not recommend the entire statute as drafted. For example, although it appears that the purpose of the statute was to eliminate the unwarranted attack on the victim's character when such evidence does not relate to the issues at trial, the effect of the statute could be the opposite. Subdivision (3)(a) suggests that the victim's past sexual conduct would be admissible to prove "fabrication." This could have the effect of expanding the use of past sexual conduct to all contested trials, an unwise result that seems inconsistent with sound policy and the purposes of the legislation. The evidentiary rule does not make past conduct admissible to prove fabrication.

Minn. R. Evid.comm. cmt.
It is easy to make a mistake in admitting evidence of prior sexual conduct. The comments to rule 412 address this, as does our recent decision in State v. Crims , 540 N.W.2d 860 (Minn. App. 1995), review denied (Minn. Jan.1996). Here, the trial court misconstrued rule 412 and did not follow relevant standards provided in case law.
2.of Collett's testimony.

The trial court found that the proposed testimony of Collett was
similar to the underlying allegations in the present case since they relate to an employment relationship and to statements made by the alleged victim relating to her claims that she had had sexual contact with a supervisor.

The trial court noted that S.L. admittedly had a consensual intimate involvement with Collett, that Collett was S.L.'s supervisor, and that S.L. "may have told other individuals that she, in fact, had sexual intercourse with Mr. Collett," whereas Collett testified that they never had had sexual intercourse. The court determined that this evidence was "relevant and material to the issue of consent of [S.L.]" and that "the probative value of the evidence as it relates to the credibility of [S.L.] is not substantially outweighed by any inflammatory or prejudicial nature of said conduct." This rationale for admission of evidence falls far short of the threshold required by rule 412.
We recently made it clear that a much higher standard must be met for such evidence to be admitted. See Crims , 540 N.W.2d at 868. Sexual history is admissible only in "exceptional cases," because a consensual relationship with a third party generally provides neither a defense to, nor relevant information about, the offense being tried. Id. at 867 (quoting State v. Elijah , 206 Minn. 619, 621, 626, 289 N.W. 575, 577, 579 (1940)). The sexual history of a victim is irrelevant unless it is " clearly similar" to the facts of the offense being tried. Id. at 867, 868. The defendant in Crims sought to introduce the victim's history of exchanging sex for drugs. Id. at 868. In affirming the trial court's order excluding this evidence, we stated that the victim's sexual history was "irrelevant to the charge of rape without evidence of modus operandi." Id. (citing Jeffries v. Nix , 912 F.2d 982, 987-88 (8th Cir. 1990), cert. denied , 499 U.S. 927 (1991), and United States v. Kasto , 584 F.2d 268, 271-72 (8th Cir. 1978), cert. denied , 440 U.S. 930 (1979)).
The evidence regarding the relationship of S.L. and Collett falls short of the "compelling evidence of modus operandi" and "pattern of clearly similar behavior" that Crims requires for admissibility. Id. S.L. had consensual sexual relations with Collett and never made claims of sexual assault to their employer, to the police, or in a civil suit. Unlike here, the sexual activity between S.L. and Collett did not take place at work, the sexual conduct was not shown to be similar, and S.L. did not accuse Collett of doing anything wrong sexually. Contrary to the trial court's finding, S.L. did not claim she and Collett had had "intercourse." Instead, she stated that they had "had sex once." The record contains no explanation of this term, but S.L. did respond that neither she nor Collett had climaxed. Even if S.L. had claimed the two had intercourse, any evidence that S.L. falsely testified regarding admittedly consensual contact with Collett certainly does not "establish a pattern of clearly similar behavior" to the facts in the case against respondent. Id. This evidence fails to meet the threshold of admission required by rule 412: "to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent." Minn. R. Evid. The trial court "clearly and unequivocally" erred in ruling this evidence would be admissible at trial. Joon Kyu Kim , 398 N.W.2d at 547 (standard of review in pretrial appeal).
3.of Sperr's testimony.

The trial court found that the kissing episode between Sperr and S.L. did not rise to the level of sexual conduct within the protection of rule 412. The trial court then determined that, because S.L. and Sperr had contradictory versions about the kissing incident, respondent would be permitted to introduce the testimony of Sperr, because it is "sufficiently relevant to the credibility of [S.L.], particularly as it relates to an employment situation." We disagree. First, Sperr's testimony is not admissible to attack S.L.'s character for truthfulness. See Minn. R. Evid.(allowing credibility of a witness to be attacked "by evidence in the form of opinion or reputation" which refers to the witness's character for untruthfulness, but prohibiting such an attack by extrinsic evidence, other than conviction of a crime as provided in rule 609).
The trial court erred in determining an alleged unwanted deep kiss and hug is not sexual in nature. Its sexual nature is precisely what makes the kiss, the hug, and S.L.'s subsequent report to the employer of any relevance here. The trial court erred when it determined this incident does not fall within rule 412.
The incident with Sperr does not meet the threshold of admissibility required by rule 412. The only similarities to the alleged facts here are that a nonconsensual kiss took place at work, S.L. complained about this behavior, and Sperr's version of events contradicts that of S.L. The differences are far more striking than the similarities: S.L. did not bring a complaint to the police; the conduct was with a co-worker, not an owner or supervisor; she has not brought a civil suit against Sperr; and, except for a kiss, the sexual conduct was not similar. This falls short of the "compelling evidence of modus operandi" and "pattern of clearly similar behavior" Crims requires for admissibility. 540 N.W.2d at 868. Rule 412 prohibits the admission of Sperr's testimony about the kissing incident and sexual harassment claim.
4.alleged sexual contacts or encounters.

Respondent has cross-appealed, claiming that the trial court erred in denying him an evidentiary hearing relating to the other individuals whose testimony he sought to introduce. The trial court determined that evidence regarding conduct of a romantic or intimate nature with persons who had no employer/employee relationship with S.L. were neither sufficiently relevant nor sufficiently similar in nature to satisfy the requirements of rule 412. We agree.
Respondent offers no legal basis for his position, but instead unabashedly argues that, since the trial court ruled that count VII (involving a separate victim) would be consolidated for trial with the counts involving S.L., respondent should have the chance to balance the scales by offering evidence that would show that S.L. "frequently and freely, in the past, consented to various forms of sexual activity with other partners - circumstantial evidence on the issue of [S.L.'s] consent in the instant case." As the state notes, respondent's argument ignores the fact that different rules and considerations, other than those concerning admission of other sexual conduct of the victim, govern issues of joinder of the offenses. The offense against another victim would otherwise be admissible as Spreigl evidence in this case. There is no merit to respondent's argument that evidence otherwise excluded under rule 412 should now be admissible under the circumstances of this case.
Finally, because we hold that rule 412 excludes all the proffered evidence of S.L.'s prior sexual conduct, we need not address whether the trial court erred when it declined to rule whether respondent must declare consent as a defense before the court may admit evidence of the victim's prior sexual conduct.
Affirmed in part, reversed in part, and remanded for trial.


1 The rule's comments regarding other subdivisions of the rape-shield statute further indicate the intent to modify and supersede the statute's subdivisions 3 and 4, but to leave the other subdivisions intact.