may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Daniel Keske,
Filed May 25, 1999
Mower County District Court
File No. K0961058
Patrick A. Oman, Mower County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent)
Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
In an appeal from conviction of second-degree criminal sexual conduct, Robert Keske asserts the court abused its discretion by excluding extrinsic evidence. The evidentiary ruling was within the district court's discretion, and we affirm.
Following a bench trial, the district court found Robert Keske guilty of second-degree criminal sexual conduct for sexual contact with a 12-year-old child. The child and her younger sister were staying with Keske, his wife, and his step-daughter while their mother was in the hospital. At the time, Keske was under court order not to have unsupervised contact with minors. The child testified that one afternoon while she was staying with Keske, he took her into his bedroom, showed her a bra, talked to her about it, and then touched her breasts. Keske told the child not to tell anyone because "he would get in trouble." After the child's mother was released from the hospital, she learned Keske was not to have contact with minors and immediately removed her children from Keske's home.
At trial on the second-degree criminal sexual conduct charge, Keske sought to introduce impeachment testimony from the child's grandmother that the child had lied previously about her cousin being sexually active. The state objected, and the court reserved its admissibility ruling. The court later held the evidence was inadmissible and found Keske guilty. Keske challenges the court's finding, asserting it committed reversible error by excluding the extrinsic evidence of the child's previous lie.
Evidentiary rulings generally rest within the district court's discretion, and a reviewing court will not reverse absent a clear abuse of discretion. State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998); State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Extrinsic evidence about specific conduct by a witness is generally inadmissible, but the court may, in its discretion, allow a party to raise a specific instance of conduct on cross-examination if it is probative of truthfulness or untruthfulness. Williams, 586 N.W.2d at 126; Minn. R. Evid. 608(b). The preclusive effects of rule 608(b) may not, however, be used in a manner that prevents a defendant from presenting a complete defense. State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).
The court ruled the evidence inadmissible both because rule 608(b) generally prohibits the admission of specific instances of conduct and because Keske sought to introduce the testimony on direct examination. See Minn. R. Evid. 608 (inquiry must occur on cross-examination). The court did not err in excluding the evidence for the purpose of impeaching the child's credibility. See State v. Stafford, 404 N.W.2d 918, 921 (Minn. App. 1987) (affirming court's exclusion of extrinsic evidence to attack a witness's credibility under rule 608(b)).
Beyond its potential impeachment value, Keske now raises the additional objection that the impeachment ruling excluded substantive evidence that the crime did not occur. See Goldenstein, 505 N.W.2d at 340; see also State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (criminal defendant has a right to "a meaningful opportunity to present a complete defense") (citation omitted). But the statement did not relate to the child's own sexual activity and therefore could not be used as substantive evidence. Cf. Goldenstein, 505 N.W.2d at 340 (victim's prior false allegation of having been raped or sexually abused is admissible as substantive evidence). Furthermore, Keske made no offer of proof indicating that he intended to use evidence of the prior untruthfulness for substantive purposes. See State v. Gerring, 378 N.W.2d 94, 96 (Minn. App. 1985) ("Where a party makes no offer of proof at trial, a reviewing court can have no basis for holding that exclusion of evidence was reversible error."); State v. Blackbull, 375 N.W.2d 71, 73 (Minn. App. 1985) (same), review denied (Minn. Dec. 19, 1985). Keske's belated objection to the ruling as excluding substantive evidence was neither properly raised nor preserved for appellate review.
In his supplemental pro se brief, Keske similarly asserts the evidence should have been admitted for its impeachment value and as affirmative evidence. These arguments only restate the issues presented in Keske's main brief. For the reasons stated in our analysis, the district court did not err in excluding the evidence.