This opinion will be unpublished and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


State of Minnesota,


Eugene Francis Kleinwachter,

Filed August 27, 1996
Peterson, Judge

Marshall County District Court
File No. K794173

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, Attorney General, Lucinda E. Jesson, Deputy Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent)

Michael D. Williams, Marshall County Attorney, 423 North Main, Warren, MN 56762 (for Respondent)

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


On appeal from his convictions for first-degree and second-degree criminal sexual conduct, Eugene Kleinwachter argues his constitutional right to a fair trial was violated by the exclusion of his expert's testimony and he was improperly adjudicated guilty of four offenses that were lesser-included offenses of a fifth adjudicated conviction. We affirm Kleinwachter's convictions but remand for resentencing.

Appellant Eugene Kleinwachter was charged with 12 counts of first-degree and second-degree criminal sexual conduct involving his daughter, H.K. At trial, H.K. testified that Kleinwachter began sexually abusing her in the spring of 1989 when she was 10 years old and that the abuse generally occurred from one to four times a week until May 1994 when she was removed from the home. H.K. testified about four specific instances of abuse and stated that Kleinwachter was the father of her two-year-old daughter. H.K. initially denied that Kleinwachter was the father of her baby, stating that a teen-age boy from another town, whom she knew only as D.J., was the father. H.K. testified that she lied about the teen-age boy because Kleinwachter had told her to do so and she was afraid of him.
The officer who investigated the initial reports of H.K.'s pregnancy testified that rumors spread at that time that the baby's father was either Kleinwachter, H.K's brother, or H.K.'s paternal uncle. The officer said he suspected all three men until H.K. specifically denied that either the brother or the uncle was involved. The officer said the rumors were the only evidence he had that Kleinwachter, the uncle, or the brother had ever had sexual relations with H.K.; he found no facts that led him to believe that the uncle or the brother was the baby's father.
The deputy who investigated the case after H.K. reported the abuse testified that he questioned H.K.'s brother and all of her paternal uncles, except one who refused to talk to him, as to whether they had ever had sexual contact with her and all had denied it. The deputy said he questioned these relatives because rumors were spreading that the Kleinwachters were trying to make another family member take the blame for the abuse. The deputy stated he had no suspects other than Kleinwachter during his investigation and no cause to ask any other relative to provide a blood sample for DNA testing.
James Liberty, the state's expert, testified that he performed DNA tests on blood samples taken from Kleinwachter, H.K., and H.K.'s baby. Liberty calculated that the combined probability that Kleinwachter was the father of the baby was 99.93%, the combined paternity index was 1,463.21, and the combined probability that an unrelated man selected at random would not be excluded as the baby's true father was 1 in 10,165.
Kleinwachter argued that because H.K.'s brother and paternal uncle were suspected to have fathered the baby, the testimony of his expert, Dr. Colin Hughes, should be admitted. Kleinwachter made an offer of proof that Hughes would testify that the probability of not excluding a first-order relative of the father as the baby's true father is much less than the probability of not excluding an unrelated man because relatives share genetic characteristics. Hughes had examined Liberty's results and concluded that the probability that a first-order relative would not be excluded was 1 in 32 rather than 1 in 10,165. The district court excluded Hughes's testimony on the grounds that the only evidence of H.K.'s sexual contact with a relative other than Kleinwachter was unsubstantiated rumor, and rumor and innuendo alone were not sufficiently trustworthy to provide an adequate foundation for Hughes's opinion as required by Minn. R. Evid. 703(b).
The jury found Kleinwachter guilty of 11 of the 12 charges against him. The court adjudicated Kleinwachter guilty of four charges based on specific instances of abuse and one charge based on the continuing course of abuse between the spring of 1989 and December 1993. The court sentenced Kleinwachter to concurrent terms for the five charges, resulting in an aggregate sentence of 240 months.

1. Rulings regarding the admissibility of expert testimony rest within the district court's discretion. State v. Erickson, 454 N.W.2d 624, 627 (Minn. App. 1990), review denied (Minn. May 23, 1980).
Kleinwachter argues his constitutional right to present a defense was denied by the exclusion of Hughes's testimony. But "[a] criminal defendant's right to present evidence in his defense is limited by the rules of evidence." State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). The district court may exclude testimony from a defense expert when that testimony lacks foundation. See Erickson, 454 N.W.2d at 627 (district court properly excluded expert testimony on study that showed unwanted children were more vulnerable to suggestion by their mothers when there was insufficient foundation to establish that sexual abuse victim in case belonged in unwanted child category); Minn. R. Evid. 703(b) & cmt. (discussing establishment of adequate foundation for expert's testimony).
Hughes's proposed testimony was based on the assumption that a relative other than Kleinwachter could have fathered H.K.'s baby. Because there was no evidence that H.K. had ever had sexual contact with any relative other than Kleinwachter, there was no evidence that a relative other than Kleinwachter could have fathered her baby. Thus, there was no foundation for Hughes's testimony and the district court properly excluded this evidence.
Kleinwachter also argues that Hughes's testimony was admissible to impeach Liberty's testimony. Impeachment by contradiction is permitted. Edward W. Cleary, et al., McCormick on Evidence § 33 (3d ed. 1984). Liberty repeatedly testified that his statistics were based on the assumption that, and were reliable only if, the random man was unrelated to Kleinwachter. Hughes agreed that Liberty's conclusions were satisfactory if one assumed that the random man was unrelated to Kleinwachter. Hughes's testimony then would have explained how Liberty's statistics would change if one assumed that the random man was related to Kleinwachter. Because Hughes's testimony added to rather than contradicted Liberty's testimony, it was not admissible impeachment evidence.
2. The state agrees that Kleinwachter cannot be adjudged guilty of both the charges based on specific incidents of abuse and the charge based on the continuing course of abuse. See Minn. Stat. § 609.04, subd. 1 (1994) (actor may not be convicted of both crime charged and included offense; included offense includes lesser degree of same crime or crime necessarily proved if crime charged is proved). Minn. Stat. § 609.04, subd. 1, does not indicate which adjudicated conviction must be vacated. State v. Bobo, 414 N.W.2d 490, 494 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).
We therefore remand to allow the district court to exercise its discretion in deciding which adjudicated convictions to vacate and in resentencing Kleinwachter. See Bangert v. State, 282 N.W.2d 540, 547 (Minn. 1979) (when it is unclear whether corrected sentence would effectuate intention of sentencing court, interests of justice are best served by remanding for resentencing); State v. Coe, 411 N.W.2d 180, 181, 182 (Minn. 1987) (when sentence imposed for attempted rape exceeded statutory maximum, case was remanded to allow district court to resentence defendant to double durational departure for burglary with assault); Bobo, 414 N.W.2d at 494 (district court's decision to vacate conviction for more serious offense and to sentence consecutively for two lesser-included offenses affirmed).
On remand, the district court may not sentence Kleinwachter to an aggregate term longer than the 240-month aggregate term that it originally imposed. See Coe, 411 N.W.2d at 182 (when case is remanded for resentencing, district court cannot punish defendant for appealing by sentencing him to total sentence greater than that originally imposed).