This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Chad Brian Story,


Filed March 16, 1999


Shumaker, Judge

St. Louis County District Court

File No. K3-97-600237

Michael A. Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

John M. Stuart, Minnesota State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



Appellant Chad Brian Story challenges a judgment of conviction for criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1(a) (1998), arguing that admission of victim's videotaped statement without deletion of irrelevant portions unfairly prejudiced him. We affirm.


After law enforcement authorities learned in 1997 that ten-year-old K.C. alleged that she had been sexually molested several years previously, a deputy sheriff videotaped an interview of her. Although she was unable to give precise dates or a chronology, K.C. described five incidents of sexual abuse. Three involved appellant and two involved appellant's younger brother, K.S.

Appellant was charged with criminal sexual conduct in the first and second degrees and with witness tampering. On direct examination at appellant's jury trial, K.C. testified about sexual abuse incidents committed by appellant but she did not mention appellant's brother.

During cross-examination, defense counsel raised questions as to K.C.'s credibility, inquiring as to the delay in disclosing the abuse, implying that K.C. had imagined the sexual contact with appellant, and suggesting that K.C. had fabricated an allegation that she had touched appellant's penis. After the cross-examination, the prosecutor offered the videotaped interview as a prior consistent statement that would help the trier of fact evaluate K.C.'s credibility. Defense counsel objected to the admission of the tape and argued that if the tape were to be admitted all references to sexual abuse allegedly committed by appellant's brother should be deleted. Noting that he could not "see how you could possibly dissect this tape and make any sense out of it," the trial judge granted the prosecutor's motion to allow the videotape into evidence in its entirety. The jury then saw and heard the videotape.

The trial court dismissed the count of first-degree criminal sexual conduct. The jury found appellant guilty of second-degree criminal sexual conduct and not guilty of witness tampering. Contending that the admission of the unredacted videotape unfairly prejudiced him by suggesting a family propensity for sexual abuse, appellant challenges the trial court's ruling.


"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). This court, therefore, will not reverse the ruling unless the trial court abused its discretion. State v. Lonergan, 505 N.W.2d 349, 353 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

The trial court admitted the videotape as a prior consistent statement under Minn. R. Evid. 801(d)(1)(B). Rule 801(d)(1)(B) provides that the statements must be helpful to the trier of fact in evaluating the witness's credibility.

Thus, before the statement can be admitted, the witness' credibility must have been challenged, and the statement must bolster the witness' credibility with respect to that aspect of the witness' credibility that was challenged. Finally, under Rules 403 and 611, the trial court retains authority to either limit or exclude the statement and, if admitted, to control the manner in which it is admitted.

State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).

Appellant admits that portions of the videotape contained admissible prior consistent statements about appellant but argues that it also contained inadmissible irrelevant discussions by K.C. of K.S.'s sexual abuse against her. Appellant contends that those irrelevant discussions unfairly prejudiced him.


Rulings involving the relevancy of evidence are generally left to the sound discretion of the trial court. State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995) (citing State v. Ture, 353 N.W.2d 502, 515 (Minn. 1984)). The party claiming error has the burden of showing both the error and the resulting prejudice. Horning, 535 N.W. 2d at 298 (citing State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)). The basic requisite for the admissibility of any evidence is that it be relevant. Minn. R. Evid. 402.

The threshold determination of relevance turns on whether the evidence logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

Horning, 535 N.W.2d at 298.

A portion of the videotape contains K.C.'s descriptions of K.S.'s sexual contact with her. K.C. sometimes intertwines references to both Chad and K.S. in locating the site of K.S.'s molestation (at Chad and K.S.'s house), fixing a time ("[t]he same time with Chad"), or explaining the nature of K.S.'s conduct ("[l]ike the same thing Chad did, like up and down and touching me.").

Among the trial court's instructions to the jury was the charge that, in determining the believability and weight of a witness's testimony, the jurors could consider the witness's "ability and opportunity to know, remember, and relate the facts * * *." The defense specifically raised the issue of K.C.'s credibility, focusing on her knowledge, recollection, and narration of the facts. Her ability to comprehensively recall persons, times, places and events that were sometimes interconnected and to describe similarities among occurrences arguably had some tendency to either bolster or negate her credibility. Under the liberal relevancy standard provided by the rules of evidence, the portions of the videotape referring to K.S. were relevant. See Minn. R. Evid. 401 ("'Relevant evidence' means evidence having any tendency * * *" to prove or disprove a material fact in issue) (emphasis added); see also Minn. R. Evid. 401 1977 comm. cmt. ("A slight probative tendency is sufficient under rule 401.").


Even relevant evidence is inadmissible if "its probative value is substantially outweighed by the danger of unfair prejudice * * *." Minn. R. Evid. 403. Appellant contends that the prejudice to him of the admission of the descriptions of his brother's sexual abuse of K.C. is that such evidence supports an inference of a propensity of his family members to commit sex crimes.

Appellant has cited neither legal nor scientific authority for his proposition. There is no evidence in the record that anyone in any way intimated to the jury that it should consider such an inference. Appellant has not demonstrated that logic or human experience supports his contention. We find his proposition to be wholly speculative, and we reject his analogies to incriminating co-conspirator and co-defendant statements as inapposite and unpersuasive. Furthermore, assignment of error on "mere assertion," unsupported by authority, is waived unless the prejudicial nature of the error is obvious. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)). Appellant has not demonstrated that the videotape unfairly prejudiced him.