This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-207

State of Minnesota,

Respondent,

vs.

Kenneth Bohlman,

Appellant.

Filed April 11, 2006

Affirmed in part, reversed in part, and remanded; motion denied

Willis, Judge

Blue Earth County District Court

File No. K2-02-1164

Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)

Douglas H. R. Olson, Rider Bennett, L.L.P., 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Hudson, Judge.

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

WILLIS, Judge

On appeal from criminal-sexual-conduct convictions and a 144-month sentence, appellant argues that he is entitled to a new trial because (1) the district court abused its discretion by issuing a pretrial order excluding evidence, (2) the prosecutor committed prejudicial misconduct, and (3) the district court abused its discretion by making various incorrect evidentiary rulings at trial. We affirm appellant’s convictions. In his reply brief, appellant also argues for the first time that his case should be remanded for resentencing because he was sentenced under a statute that became effective after the date of the conduct for which he was convicted. Respondent filed a motion to strike appellant’s sentencing argument on the ground that it was a new argument not made in appellant’s initial brief. In the interest of justice, we deny respondent’s motion to strike and reverse appellant’s sentence and remand for resentencing.

FACTS

Appellant Kenneth Bohlman lived on a horse-training and -stabling farm in Blue Earth County with his girlfriend, Suzette Johnson. In the summer of 1997, A.B., a 14-year-old girl, stayed at the farm and took riding lessons for approximately three weeks. During the following school year, A.B. visited the farm on weekends and during school vacations and occasionally stayed overnight. In 1998 and 1999, A.B. spent her summer vacations at the farm and visited on weekends and during vacations. In the spring of 2000, when A.B. was 17 years old, she began attending college and living full time at the farm. She moved away in October 2001.

In December 2001, Bohlman received a letter threatening his grandson. In April 2002, A.B. gave a statement to a Blue Earth County Sheriff’s deputy in connection with the investigation of the threat. In her statement, A.B. claimed that Bohlman had sexually abused her for several years. A.B. stated that, as part of the sexual abuse, she performed acts of bestiality with a dog at Bohlman’s direction. As a result of A.B.’s statement, the sheriff’s department asked A.B. to meet with Bohlman and to wear a device to covertly record their conversation. A.B. agreed, and during a meeting with Bohlman, the following exchange took place:

A.B.: Did you regret f-cking me when I was fourteen?

Bohlman: I regret what it could have done to you.

A.B.: You don’t regret it?

Bohlman: No. I just thought the whole time that I was doing harm to you. I was so happy. But why couldn’t, why couldn’t you have been four years older?

Shortly afterwards, Bohlman was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b), (g) (1998), and three counts of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b), (e), (f) (1998).

At a pretrial hearing, the state successfully moved to exclude all evidence related to the allegations of bestiality, arguing that the evidence was irrelevant to the charged conduct and that the description of such deviant sex acts would be prejudicial to both parties and would “turn the jury off and stop them from listening.” Bohlman opposed the state’s motion, claiming that this evidence went to the overall credibility of A.B.’s claims. The prosecution also successfully moved to exclude evidence regarding allegations that A.B. had been previously sexually abused by her brother and neighborhood children, arguing that the evidence was irrelevant and protected by the rape-shield statute.

The jury found Bohlman guilty of two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. The district court denied Bohlman’s motion for acquittal or reversal and a new trial and sentenced him to 144 months in prison. This appeal follows.

D E C I S I O N

I. Exclusion of Evidence

Bohlman argues that the district court committed reversible error by issuing a pretrial order excluding evidence regarding (1) A.B.’s statement to the police that she performed acts of bestiality with a dog at Bohlman’s direction and (2) the prior sexual abuse that A.B. allegedly suffered. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). Even when a defendant alleges a violation of his constitutional rights because of an evidentiary ruling, this court reviews the ruling for an abuse of discretion. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).

A. Bestiality Evidence

In its pretrial order of October 12, 2004, the district court granted the state’s motion to exclude evidence relating to the alleged bestiality. Bohlman argued at the pretrial hearing and claims now that the district court should not have excluded this evidence because A.B.’s entire claim of abuse was an “outrageous fabrication” and the bestiality claims were the “most outrageous,” and, thus, the evidence was “highly relevant” for evaluating A.B.’s credibility.

In addition, Bohlman argues that the exclusion of the evidence violated his rights (1) to present a complete defense because he was deprived of the opportunity to show the “full extent of the outrageousness of [A.B.’s] claims” and (2) to confront his accuser. Under the Due Process Clauses of the United States and Minnesota Constitutions, “[e]very criminal defendant has a right to fundamental fairness and to be afforded a meaningful opportunity to present a complete defense.” State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (quotation omitted), review denied (Minn. Jan. 23, 1996). In addition, under the Confrontation Clauses of the United States and Minnesota Constitutions, an accused has the right to confront adverse witnesses. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965); State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001). “Prohibiting a criminal defendant’s cross-examination where that cross-examination is designed to expose a prosecution witness’[sic] bias or motivation in testifying is error.” State v. Pride,528 N.W.2d 862, 866 (Minn. 1995) (citation omitted).

We conclude that the district court abused its discretion by excluding evidence regarding the allegations of bestiality. The evidence is clearly relevant to the determination of A.B.’s credibility because she claimed that the conduct was part of her sexual relationship with Bohlman. Further, it is not clear that this evidence would prejudice the state’s case; any possible prejudicial effect of the evidence might as likely be to Bohlman’s case. Thus, we determine that the probative value of the evidence outweighed any possible prejudice to the state. Because the evidence should have been admitted, Bohlman’s right to present a complete defense and to confront A.B. were violated.

But errors compromising a defendant’s rights to present a complete defense and to confront his accuser are subject to harmless-error analysis. See Greer,635 N.W.2d at 91; Pride, 528 N.W.2d at 867. A district court’s error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). But if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, the error is prejudicial. Id. Because the evidence supporting Bohlman’s convictions is compelling, we determine that the court’s ruling was harmless error. A.B. testified that Bohlman gave her birth-control pills to take, starting when she was 15 years old. A Blue Earth County Sheriff’s Department investigation confirmed that from July 1998 to June 2002, approximately four years’ worth of birth-control pills were missing from the pharmacy where Bohlman worked. Further, Bohlman stated in the conversation taped by the sheriff’s department that he did not regret “f-cking” A.B. when she was 14 years old and “why couldn’t [she] have been four years older?” Therefore, even if the evidence relating to A.B.’s allegation of bestiality had been admitted and its damaging potential to the state’s case had been fully realized, we are satisfied beyond a reasonable doubt that a reasonable jury would have reached the same verdict.

B. Evidence of Prior Sexual Abuse

The defense provided pretrial notice of its intent to introduce evidence concerning A.B.’s “history of sexual abuse.” The district court excluded the evidence on the ground that it was not relevant. Bohlman maintains that the district court abused its discretion because the evidence was necessary (1) to explain why A.B. lived at the farm, (2) to prove that A.B. had a “propensity to lie and fabricate claims” because she lied to the police when she gave them a statement in which she denied that she had been abused by her brother, and (3) to present the theory that A.B. was “psychologically damaged goods” as a result of the prior abuse.

The state argued that the evidence not only was irrelevant but also was inadmissible under Minn. Stat. § 609.347, the rape-shield statute. This statute provides that evidence of the prior sexual conduct of a victim is admissible only when the consent of the victim is a defense or when the prosecution’s case includes evidence of semen, pregnancy, or disease, and the proffered evidence would rule out the defendant as “the source of the semen, pregnancy, or disease.” Minn. Stat. § 609.347, subd. 3 (2004); Minn. R. Evid. 412(1). Under this statute, evidence of the alleged prior sexual abuse of A.B. is inadmissible. Thus, although we disagree with the district court’s determination that the evidence was not relevant, we find that the rape-shield statute precludes admission of the evidence and affirm the district court’s decision to exclude. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (determining that “we will not reverse a correct decision simply because it is based on incorrect reasons”).

Further, even if the district court had abused its discretion, any error would have been harmless. The tape-recorded conversation between A.B. and Bohlman and the four years’ worth of birth-control pills missing from the pharmacy where Bohlman worked are compelling evidence of his guilt. Therefore, even if the evidence had been admitted and its damaging potential to the state’s case had been fully realized, we are satisfied that the jury would have reached the same verdict.

II. Prosecutorial Misconduct

Bohlman further argues that the prosecutor committed misconduct, entitling him to a new trial. A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). Whether prosecutorial misconduct was harmless depends in part on the type of misconduct committed. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). For less-serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. Id. Prosecutorial misconduct requires the reversal of a defendant’s conviction only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).

A. Hearsay Objections

Bohlman argues that the prosecutor improperly insinuated that Bohlman had a responsibility to testify. The prosecutor’s comments were made in the context of hearsay objections by the state, during which the prosecutor noted that Bohlman, rather than the testifying witness, would be the proper individual to testify about the matters in question. But defense counsel failed to object to any of these remarks at trial. “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.” Powers, 654 N.W.2d at 678. Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). We determine that the prosecutor’s statements did not constitute misconduct. The prosecutor did not state that Bohlman had to testify or specifically comment on a failure to testify or to call a witness. Instead, the prosecutor argued that the witness was not the appropriate person to testify on the subject.

B. Questions Regarding Impotency Defense

Bohlman raised the defense that he could not have sexually abused A.B. because he was impotent. Bohlman argues that the prosecutor improperly shifted the burden of proof to Bohlman by questioning him on cross-examination about whether he had provided law enforcement with documentation supporting his claim of impotence. Because defense counsel failed to object to any of these questions at trial, Bohlman is entitled to a new trial only if the prosecutor’s questioning was unduly prejudicial. See id.

The state bears the burden of proving all elements of a crime beyond a reasonable doubt throughout the trial, and a prosecutor is prohibited from shifting the burden of proof to a defendant to prove his innocence. State v. Race, 383 N.W.2d 656, 664 (Minn. 1986). But the prosecutor did not shift the burden of proof with his questions; in State v. Race, the Minnesota Supreme Court determined that remarks by a prosecutor about the lack of evidence regarding the defense’s theory were “viewed as not shifting [the] burden to the defense, but rather as challenging one of the defense’s rebuttal theories.” Id. Further, even if the prosecutor did err by asking the questions, any prejudice would have been minimized by the appropriate instructions regarding the burden of proof that the district court gave to the jury.

C. Closing Argument

Bohlman further argues that the prosecutor shifted the burden of proof to Bohlman by commenting in his closing argument on the lack of evidence supporting Bohlman’s impotency defense. When assessing prosecutorial misconduct in a closing argument, the argument will be considered as a whole. Powers, 654 N.W.2d at 678 (citing Johnson, 616 N.W.2d at 727-28). But as previously stated, the prosecutor’s comments regarding the lack of evidence for the defense’s theory did not shift the burden of proof. See Race, 383 N.W.2d at 664. Further, even if the prosecutor’s comments had been improper, they would have been harmless error. Because the district court, the prosecutor, and defense counsel repeatedly instructed the jury about the presumption of innocence and the burden of proof, it is unlikely that the comments played a substantial part in influencing the jury to convict Bohlman.

D. Witness Questioning

During the cross-examination of Suzette Johnson, Bohlman’s girlfriend, the prosecutor asked questions about e-mails that A.B. had received from an account that used “SEJlawfirm” as part of its address. Because Johnson denied sending the e-mails, Bohlman claims that the prosecutor engaged in misconduct by cross-examining Johnson “concerning an email that she never authored, and, by asking questions in an insinuating manner, suggest[ing] that she was lying about authoring an email which indicated that she was having an affair with some other person.” “[I]t is unprofessional conduct to ask a question which implies a factual predicate which the examiner cannot support by evidence or intentionally to mislead the jury in argument as to inferences it may draw.” State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973) (citations omitted). The prosecutor did not commit misconduct by asking the questions here because the e-mail address would suggest that the e-mails came from Johnson. Further, even if the questions were misconduct, they would have been harmless error because it is unlikely that questions about e-mails between Johnson and A.B. played a substantial part in influencing the jury to convict Bohlman.

III. Evidentiary Rulings at Trial

Bohlman argues that the district court abused its discretion by making various improper evidentiary rulings at trial. This court will not reverse a district court’s evidentiary rulings unless the district court clearly abused its discretion. Amos, 658 N.W.2d at 203. On appeal, the appellant has the burden of establishing not only that the district court abused its discretion but also that prejudice resulted. Id.

A. Admission of Transcript

Bohlman claims that the district court abused its discretion by admitting into evidence a transcript of the tape-recorded conversation between A.B. and Bohlman. While the Minnesota Rules of Evidence require that to prove the content of a recording, the original recording is required, jurors may be allowed to use a transcript of a tape-recorded conversation as a listening aid if the district court properly instructs the jury concerning the use of the transcript and the tape. Minn. R. Evid. 1002; State v. Olkon, 299 N.W.2d 89, 103-04 (Minn. 1980). If the accuracy of a transcript is at issue, foundation may be laid by having the person who prepared the transcript testify that he or she has listened to the recording and accurately transcribed its contents. Olkon, 299 N.W.2d at 103 (citing United States v. McMillan, 508 F.2d 101, 106 (8th Cir. 1974)). But “[t]ranscripts should not ordinarily be admitted into evidence unless both sides stipulate to their accuracy and agree to their use as evidence.” McMillan, 508 F.2d at 106; see also Olkon, 299 N.W.2d at 103-04 (determining that when the accuracy of transcripts was an issue, no error occurred because the “transcripts were not placed in evidence; only the tapes were. Thus, the McMillan guidelines were carefully followed”).

Because Bohlman objected to the accuracy of the transcript, the district court should have allowed the transcript to be used only as a listening aid and should not have admitted it into evidence. Because we conclude that the district court erred by admitting that evidence, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. See Post, 512 N.W.2d at 102 n.2. If there is a reasonable possibility that the verdict might have been more favorable to Bohlman without the evidence, then the error is prejudicial. See id. Because (1) the transcript could have been properly used as a listening aid, (2) the district court instructed the jury that the “actual tape is the exhibit that you should consider as it relates to the content of the conversation and the context of statements contained on it,” and (3) Bohlman has not identified any substantive error in the transcript, we are satisfied that there is no reasonable possibility that the wrongfully admitted transcript significantly affected the verdict.

B. Playing of Tape

The district court allowed the state to play a short portion of the tape-recorded conversation between A.B. and Bohlman during the state’s cross-examination of Johnson for the purpose of establishing that it was Bohlman’s voice on the tape. Because no questions had been posed to Johnson concerning the conversation during the defense’s direct examination of her, Bohlman maintains that playing the tape during cross-examination exceeded the scope of Johnson’s direct examination, and the district court abused its discretion by permitting it. Cross-examination of a witness should be limited to the subject matter of direct examination and any matters implicating the witness’s credibility. Minn. R. Evid. 611(b).

The district court did not abuse its discretion by permitting the prosecution to play a portion of the tape. A district court “may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” Id. And even if the district court exceeded its discretion by permitting the prosecutor to play a portion of it, because the tape itself was admitted into evidence, we see no prejudice to Bohlman.

C. E-mails

Bohlman argues that the district court abused its discretion by admitting into evidence e-mails that A.B. testified were from Bohlman. Bohlman claims that because there was insufficient proof that he authored the e-mails, there was not adequate foundation for their admission. The adequacy of the foundation for the admission of physical evidence is reviewed for an abuse of discretion. State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992) (citing State v. Williams, 337 N.W.2d 689, 691 (Minn. 1983)), review denied (Minn. Nov. 25, 1992). Before the admission of an exhibit into evidence, it must be authenticated with evidence sufficient to support a finding that the matter in question is what its proponent claims it to be. Minn. R. Evid. 901(a). Testimony of a witness “with knowledge” is one way to prove that an exhibit is what it is claimed to be. Minn. R. Evid. 901(b)(1). A.B. testified that the e-mails sought to be admitted contained Bohlman’s name and e-mail address and that she frequently sent e-mails to and received e-mails from Bohlman at the e-mail address appearing on the e-mails sought to be introduced. We conclude that A.B.’s testimony provided an adequate foundation for the admission of the e-mails, and therefore the district court did not abuse its discretion by admitting the e-mails.

D. Exclusion of Witness Character Evidence

Bohlman maintains that the district court abused its discretion by not allowing the defense to present evidence regarding the truthful character of a particular witness, A.P. Evidence of truthful character is admissible only when the witness’s character for truthfulness has been attacked by opinion or reputation evidence or otherwise. Minn. R. Evid. 608(a). Bohlman argued that A.P.’s character and veracity were attacked because she was being prosecuted in a separate matter for sexually abusing A.B. The district court did not abuse its discretion; A.P.’s character “for truthfulness” was not attacked in this trial simply because she was the subject of a separate prosecution.

IV. Sentencing

In his reply brief, Bohlman argues for the first time that his case should be remanded for resentencing. Bohlman was convicted for conduct that occurred before April 20, 1999, and was sentenced to the presumptive 144-month sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 2(b), which was not effective until August 1, 2000, and applies only to crimes committed on or after that date. See 2000 Minn. Laws ch. 311, art. 4, §§ 2, 10, at 211, 217. Before oral argument, the state moved this court to strike this argument on the ground that it is a new claim that was not made in Bohlman’s initial brief. This court deferred the state’s motion to the panel considering this appeal, gave the state the opportunity to file a supplemental brief addressing the new issue, and directed the state to be prepared to address it at oral argument. In its supplemental letter brief, the state concedes that Bohlman’s case should be remanded for resentencing. We therefore reverse Bohlman’s sentence, remand for resentencing, and deny the state’s motion. See Minn. R. Civ. App. P. 103.04 (providing that an appellate court may review any matter that the interest of justice requires); see also Frank v. Winter, 528 N.W.2d 910, 913 (Minn. App. 1995) (addressing a new issue raised in the reply brief in the interest of ending litigation), review denied (Minn. Apr. 27, 1995).

Affirmed in part, reversed in part, and remanded; motion denied.