This opinion will be unpublished and
may not be cited except as provided by
 Minn. Stat.§ 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     State of Minnesota,


Timothy Richard Schaak,

Filed June 25, 1996
Schumacher, Judge

Hennepin County District Court

File No. 95015109

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

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant
County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State
Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN
55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and
Schumacher, Judge.

                        Unpublished Opinion

SCHUMACHER, Judge (Hon. Patrick W. Fitzgerald, District Court Trial

Appellant Timothy Richard Schaak challenges his conviction for kidnapping.
He argues the district court: (1) denied his right to confrontation by
excluding evidence; and (2) abused its discretion by imposing the mandatory
minimum fine. We affirm.

In the early morning of February 19, 1995, Minneapolis police officers
flashed a light into a parked car containing Schaak and the victim. The
victim had a look of shock and fear. When she exited the car, her breasts
were exposed. The victim hugged an officer and whispered, ``He just raped
me,'' and then began crying uncontrollably. Schaak fled on foot. An officer
caught Schaak and a fight ensued in which Schaak several times reached for
his knife before being secured by several officers.

The state charged Schaak with three counts of criminal sexual conduct and
one count of kidnapping. At trial, the state presented evidence that Schaak
grabbed the victim after she parked her car and forced her back into the
car. He then drove away, parked, held a knife to the victim, and sexually
assaulted her. Schaak's defense was that he spotted the victim passed out
in her car at a traffic light, and, being a Good Samaritan, he got into the
car and drove it away to prevent her from driving while intoxicated. He
theorized that when police arrived, the victim fabricated a kidnapping and
sexual assault story to avoid DWI prosecution.

Schaak developed his theory by eliciting admissions from the victim that
she lied to police regarding whether she had driven while intoxicated on
the night in question. Schaak repeatedly offered evidence concerning the
victim's prior DWIs and alcohol-related license cancellations, in addition
to her pending DWI charge. Schaak argued the DWI record gave the victim a
greater motive to lie than an ordinary citizen confronted with a DWI would
have, because the victim would face jail time for gross misdemeanor DWI.
The court excluded the victim's DWI record because the evidence was
speculative and the risk of unfair prejudice substantially outweighed any
probative value. The court reasoned the jury had heard ample evidence
concerning the victim's motive to lie.

The jury found Schaak guilty of kidnapping but not guilty of criminal
sexual conduct. The court sentenced Schaak to a presumptive term of 78
months executed and imposed a fine, assessment, and surcharge of $18,025.

1. The district court's decision on the admission of evidence is reviewed
under an abuse of discretion standard deferential to the district court's
ruling. State v. Starkey, 516 N.W.2d 918, 925 (Minn. 1994). A court
may exclude relevant evidence ``if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury * * *.'' Minn. R. Evid. 403; Starkey, 516 N.W.2d
at 925.

The discretionary power of the court to control the scope of cross-
examination is limited by the Confrontation Clause. State v. Lanz-
Terry, 535 N.W.2d 635, 640 (Minn. 1995). The main purpose of the
Confrontation Clause is to secure the defendant's opportunity for cross-
examination. Id.; see also State v. Crims, 540 N.W.2d
860, 865 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996)
(Confrontation Clauses of federal and state Constitutions serve same
purpose). Vindication of the right to confrontation requires that courts
allow defendants the opportunity to present evidence material to their
theory of the case. Crims, 540 N.W.2d at 866.

Here, the court denied Schaak's repeated requests to admit evidence of the
victim's DWIs. Schaak offered the evidence to support his theory that the
victim had a motive to lie to avoid prosecution for gross misdemeanor DWI.

In State v. Pride, 528 N.W.2d 862 (Minn. 1995), the complainant
reported to a police officer an alleged sexual assault by Pride. Id.
at 865. At trial, the court denied Pride's requested cross-examination
of the officer regarding the romantic relationship that developed between
the officer and the complainant following the alleged assault. Id.
at 864. Pride's theory of the case was that the complainant fabricated the
assault story in an effort to move her relationship with the officer from
friendly to romantic. Id. at 865. The jury convicted Pride.
Id. In a plurality opinion, the supreme court held that the district
court failed to vindicate Pride's cross-examination rights under the
Confrontation Clause. Id. at 866. The majority concluded the jury
might have had a ``significantly different impression'' of the credibility
of both the complainant and the officer had the court allowed the testimony
concerning their subsequent romantic relationship. Id.
Here, unlike in Pride where the district court totally precluded
Pride's ability to show a motive for the complainant to lie, Schaak was
able to show a motive for the victim to lie. The question is whether the
victim's motive to lie to avoid gross misdemeanor DWI rather than an
ordinary DWI would have given the jury a ``significantly different
impression'' of the victim's credibility. See id. at 866. We
conclude the difference is not ``significant,'' given that Schaak's defense
successfully: (1) insinuated the victim's DWI problems by eliciting
testimony that she had a suspended driver's license and could not afford
insurance in ``her situation,'' (2) established that the victim was
intoxicated on the night in question, (3) established that the victim lied
to police several times to avoid DWI repercussions, and (4) elicited
inconsistencies bearing on the victim's credibility. Accordingly, Schaak's
confrontation rights were fully vindicated, and the question becomes one
regarding the court's discretion to exclude evidence.

In applying a rule 403 balancing, the added probative value of allowing
evidence of the victim's DWIs is exceedingly minimal. The victim had a
motive to lie, and indeed Schaak developed this theory. In fact, the jury
at least partially discredited the victim's testimony by only convicting
Schaak for kidnapping. Further, the risk of unfair prejudice, confusion of
the issues, and misleading the jury was significant given the public
disdain for drinking and driving. Therefore, we conclude the district court
did not abuse its discretion in excluding evidence of the victim's DWI

2. When a defendant is convicted of kidnapping, the district court must
impose a minimum fine of $15,000. Minn. Stat. §𨺹.101, subd.
4(1), 609.25, subd. 2(2) (1994). Further, the court ``shall'' impose an
assessment of 20 percent of the amount fined, in addition to a $25
surcharge. Minn. Stat. 𨺹.101, subd. 1(a), (b) (1994). The court has
the discretion to reduce the mandatory minimum fine, surcharge, and
assessment if the court makes written findings on the indigency of or undue
hardship on the convicted person. Minn. Stat. 𨺹.101, subd. 5 (1994).

Here, the district court imposed the mandatory minimum statutory fine,
surcharge, and assessment of $18,025. Schaak argues he is indigent, and
thus the court should have exercised its discretion and reduced the fine to
zero. We disagree. There is no requirement in the statute that a court base
fines on a defendant's ability to pay. State v. Patterson, 511
N.W.2d 476, 479 (Minn. App. 1994), review denied (Minn. Mar. 31,
1994). The court is required to make findings on indigency only if the
court decides to reduce the fine. Id. Thus, the court here was not
required to consider Schaak's ability to pay and was not required to make
findings on his indigency. Further, Schaak merely asked that the fine be
waived without presenting evidence bearing on indigency. Accordingly, we
conclude the district court did not abuse its discretion in imposing the
mandatory minimum fine, assessment, and surcharge.