Abraham Tony Dolo, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0063

Abraham Tony Dolo, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 19, 2019
Reversed and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-16-4863

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Nicole Cornale, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Jess on, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
S Y L L A B U S
When the state seeks to play part of a recorded interview and a defendant seeks to
have the entire recording admitted under rule 106 of the Minnes ota Rules of Evidence, a
district court must conduct a fairness analysis to determine wh ether a party may require
introduction of the evidence in its entirety.

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O P I N I O N
JESSON, Judge
During his trial for second-degree criminal sexual conduct ste mming from his
children’s mother’s allegation th at he sexually abused his chil dren, appellant Abraham
Tony Dolo objected to the state’s request to play a limited por tion of his interview with
police. Dolo requested that the entire recording of the interv iew be played for the jury.
After the district court overruled his objection, a jury found him guilty and the
postconviction court subsequently denied his petition for relief. Because we conclude that
it was an abuse of discretion for the district court to overrule Dolo’s objection and deny his
request for the state to play the entire recording of his inter view with police without
conducting a fairness analysis, we reverse Dolo’s conviction and remand for a new trial.
FACTS
In December 2015, a family court judge granted appellant Abraham Tony Dolo sole
legal custody and joint physical custody of his five-year-old d aughter, C.D., and his
seven-year-old son, K.D. 1 In late January 2016, the child ren’s mother alleged that the
children told her that Dolo had touched them inappropriately. She took the children to the
hospital the next day, and hospital staff alerted police.2
Police referred the children to Cornerhouse, an organization that conducts forensic
interviews with children who may have been abused. During her interview, C.D. disclosed

1 Although the transcript spells Dolo’s son’s name with a “C,” i t appears that his name
actually begins with a “K.”
2 Because the allegations against Dolo only involved touching, a sexual-assault exam was
not performed on either child.

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that Dolo slept naked with her and her brother, put her feet on his “private part,” “scoot[ed]
up” against her and “hump[ed]” her, and put his hands down her pants. And when asked
if Dolo ever told her to not talk about what happened, C.D. told the interviewer, “He said,
don’t tell my mom” or “[h]e’s gonna tell my teacher.”
Based on the Cornerhouse interview, police requested to speak with Dolo. Dolo
agreed. During the voluntary in terview—which was recorded—Dolo repeatedly denied
that he had sexually abused or inappropriately touched his children. He told police that, as
a result of the custody dispute, the children’s mother was tryi ng to create problems by
planting the allegations in the children’s heads. Throughout the interview, Dolo remained
adamant that the allegations were a “retaliation thing.”
A few weeks later, the state charged Dolo with one count of se cond-degree criminal
sexual conduct based on his daughter’s allegations. The case proceeded to a jury trial. At
trial, C.D. testified3 that she slept in the same bed with Dolo while he was not wearing any
clothes. C.D. also explained that Dolo touched her in a way sh e did not like and that he
put her feet on his “private” which made her feel “nasty” and “ sad.” Additionally, C.D.
described Dolo “scooting up” against her with his “private” and that it felt hard. According
to C.D., no one—including her mother—told her what to say.
Dolo’s son K.D. also testified and largely corroborated his sister’s statements. He
explained that he also slept in a bed with Dolo and his sister while Dolo was not wearing
any clothes. And K.D. testified that on more than one occasion , his butt touched Dolo’s

3 Before trial, the district cour t held a competency hearing and determined both children
were competent to testify.

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“private.” When asked how he felt about talking about these th ings, K.D. answered that
he felt “happy” because he had been told not to talk about what happened.4
During the direct examination of the detective who interviewed Dolo, the state
sought to play part of the record ed interview during which Dolo described the layout and
living arrangements in the home. According to the state, Dolo lied about the living
arrangements in the house, which demonstrated a consciousness o f guilt. Dolo’s counsel
objected, arguing that under the rule of completeness and Minnesota Rule of Evidence 106,
the state should be required to play the entire recording. Aft er taking a recess to review
the transcript of the entire recording, the district court over ruled Dolo’s objection and
allowed the state to play a short portion of the recording. During cross-examination of the
officer, defense counsel asked the detective if Dolo maintained his innocence throughout
the interview and if he ever admitted to anything. But the district court sustained objections
to those questions on hearsay grounds and did not permit the detective to answer.
Dolo presented several witnesse s on his behalf, including the custody evaluator
from the family-court matter who testified that there were no a llegations of sexual abuse
during the family-court proceedings and that she found Dolo to be credible when working
with him. Dolo’s mother, who owns the house where the sexual abuse allegedly occurred,
testified that the children never slept downstairs in Dolo’s room and that she never saw him
touch the children inappropriately.

4 The state also presented testimony from the children’s mother, who reiterated that she did
not tell the children to make these allegations so she would obtain custody of her children.
And the state presented testimony from the Cornerhouse forensic interviewer and played
C.D.’s interview for the jury.

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Finally, Dolo testified on his own behalf. He adamantly denie d abusing his children,
touching them inappropriately, o r placing his hands down C.D.’s pants. Dolo explained
that when he learned of the allegations against him, his first thought was that the children’s
mother was fabricating false alle gations against him, so he tol d his side of the story to
police. Dolo testified that although the jury only heard about eight minutes of his interview
with police, during that intervi ew he maintained his innocence and told police that he
believed the children’s mother w as making up allegations becaus e a family court judge
awarded him custody of their children. During the state’s cros s-examination, the
prosecutor asked Dolo questions about what he said to police du ring portions of the
interview that were not played for the jury. Several of those questions involved whether
Dolo told police that the childre n’s mother was trying to retal iate against him, whether
Dolo asked how his children were doing, and statements the prosecutor alleged Dolo made
regarding the children’s truth fulness. And although Dolo attem pted to answer the
questions, he repeatedly told prosecutors that he did not remem ber exactly what was said
during the interview because it took place several months before the trial.
The jury found Dolo guilty of second-degree criminal sexual con duct. After
denying Dolo’s motions for judgm ent of acquittal and a new tria l, the district court
sentenced him to a stayed 36-month prison term and five years of probation. Dolo did not
file a direct appeal but filed a petition for postconviction re lief, which the postconviction

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court denied without an evidentiary hearing.5 Dolo appeals the denial of his postconviction
petition.
ISSUE
Did the district court abuse its discretion by refusing to req uire the state to
play the entire recording of Dolo’s interview with police without conducting
a fairness analysis?

ANALYSIS
Dolo argues that the postconvicti on court abused its discretion by denying his
petition for relief. Specifically, Dolo contends it was an abuse of discretion for the district
court to allow the state to play about eight minutes of his hou r-long interview with police
for the jury without requiring the state to play the recording in its entirety. According to
Dolo, this decision violated the rule of completeness, codified in rule 106 of the Minnesota
Rules of Evidence, which allows a party to require the introduction of an entire recording
if the opposing party seeks to introduce only a portion of it. See Minn. R. Evid. 106. The
decision to permit the state to play only a portion of the interview denied Dolo his right to
present a complete and meaningful defense, he contends.
We review the denial of a postconviction petition for relief fo r an abuse of
discretion. Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018). In doing so, we evaluate
l e g a l i s s u e s d e n o v o , b u t o u r r e v i e w o f f a c t u a l i s s u e s i s l i m i ted to whether sufficient
evidence in the record supports the postconviction court’s findings. Matakis v. State, 862
N . W . 2 d 3 3 , 3 6 ( M i n n . 2 0 1 5 ) . A n d w e w i l l n o t r e v e r s e t h e d e n i a l of a postconviction

5 Dolo did not request an evidentiary hearing in his postconviction petition.

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petition “unless the postconviction court exercised its discret ion in an arbitrary or
capricious manner, based its ruling on an erroneous view of the law, or made clearly
erroneous factual findings.” Id. (quotation omitted). Dolo’s asserted basis for
postconviction relief is an allegedly erroneous evidentiary dec ision, which is within the
“sound discretion” of the distri ct court and is not reversed wi thout a clear abuse of
discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). And on appeal, Dolo bears
the burden of demonstrating such an abuse of discretion and the resulting prejudice. Id.
In order to discern whether the postconviction court abused its discretion by denying
Dolo’s petition for relief, we begin by considering the backgro und and purpose of the
common law rule of completeness and rule 106 of the Minnesota Rules of Evidence. With
r u l e 1 0 6 i n m i n d , w e t h e n a n a l yze whether the district court ab used its discretion by
permitting the state to play only a portion of Dolo’s interview w i t h p o l i c e w h e n D o l o
requested that the entire recordin g be played for the jury. Be cause we conclude that the
district court did not adequately consider whether fairness required the introduction of the
entire recording for th e jury, we then evaluate whether the err oneous exclusion of the
recording prejudiced Dolo. And because our review of the recor d demonstrates that the
failure to play the entire recording resulted in prejudice, we conclude that it was an abuse
of discretion for the postconviction court to deny Dolo’s petition for relief.

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Background and Purpose

Rule 106 evolved from the common law doctrine of completeness. 6 21A Charles
A l a n W r i g h t & K e n n e t h W . G r a h a m , J r . , Federal Practice and Procedure:
Evidence § 5072, at 383 (2d ed. 2005). This doctrine “presume[s] two te nets of the
adversary system.” Id. Those two tenets are (1) that parties, rather than the court, a re
responsible for offering evidence to support their claims and ( 2) that a trial follows a
sequential procedure in which parties alternate in presenting their evidence. Id. at 383-84.
But in some cases, the phrasing of questions or presentation of incomplete
statements can mislead the jury. The common law doctrine of co mpleteness sought to
remedy that problem by creating “a limited restriction” to a party’s ability to control their
case. Id. at 386. That restriction allowed one party to require an adverse party seeking to
introduce part of a writing or statement to introduce it in its entirety. Id. at 387-88; see also
State v. Brodt, 185 N.W. 645, 647 (Minn. 1921) (stating that “[w]hen the significance of a
former statement of a witness has been distorted by a fragmentary or inaccurate repetition
of it, the entire conversation or writing may be received to ex plain its true significance”).
And when the inculpatory portion of a statement or transaction was admitted into evidence,
an opposing party had the right to have the excu lpatory portion—“including self-serving
declarations”—admitted as well. State v. Kiewel, 217 N.W. 598, 600 (Minn. 1928).

6 Because our review of Minnesota caselaw does not reveal significant analysis of rule 106
and because it closely resembles rule 106 of the Federal Rules of Evidence, we rely on
scholarship and caselaw analyzing the federal rule. See Fed. R. Evid. 106 (stating that “[i]f
a party introduces all or part of a writing or recorded stateme nt, an adverse party may
require the introduction, at that time, of any other part—or an y other writing or recorded
statement—that in fairness ought to be considered at the same time”).

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Rule 106 encompasses the common law completeness doctrine and is based on the
concept of fairness. 7 11 Peter N. Thompson, Minnesota Practice § 106.01, at 94
(4th ed. 2012). It is similarly in tended to address the two-pronge d danger presented by
incomplete evidence: first, that admitting only a portion of a statement ignores the context
in which it was said, potentially creating a “distorted impress ion,” and second, that an
initial false impression created by presenting incomplete evide nce may not be overcome
by a later introduction of the omitted portions of the statement. 1 Charles T. McCormick,
McCormick on Evidence § 56, at 391-93 (Kenneth S. Broun, et al. eds., 7th ed. 2013); see
also Fed. R. Evid. 106 advisory comm. note (explaining that the rule is based on two
considerations: “the misleading impression created by taking ma tters out of context” and
“the inadequacy of repair work when delayed to a point later in the trial”).
In order to avoid these dangers, parties may, under rule 106, request that the entirety
of a statement be introduced for the jury to consider. That re quest is framed as a
requirement, which the court should evaluate according to fairness. R u l e 1 0 6 o f t h e
Minnesota Rules of Evidence provides:
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require t h e
introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it.

7 Rule 106 is broader than the common law rule of completeness, permitting a party the
“right to demand” that the opposing party expand the scope of h is or her inquiry to avoid
creating a “misleading initial impression.” 1 Charles T. McCor mick, McCormick on
Evidence § 56, at 393 (Kenneth S. Broun, et al. eds., 7th ed. 2013).

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(Emphasis added.) But rule 1 06 does not permit admitting other wise inadmissible
evidence. See 11 Peter N. Thompson, Minnesota Practice § 106.01, at 95 (4th ed. 2012).
As such, “[i]f portions of a document are inadmissible because of privilege, hearsay, or
otherwise, the operation of this rule does not sanction the adm issibility of the entire
document.” Id. Rule 106 is thus properly un derstood as addressing the order of
presentation of evidence rather than the admissibility of evidence. Id.
When faced with a demand from an adverse party that an entire recording be played
pursuant to rule 106, the district court—heeding the words of t he rule that a party “may
require” introduction of the en tire recording—must begin with t he presumption that the
adverse party has the right to demand that the entire statement be introduced. In light of
that presumption, the district court then conducts a fairness analysis to determine whether
introduction of the entire statement is appropriate. When cond ucting a fairness analysis,
district courts have broad discretion to determine when to admit the entirety of a writing or
recording. Id. at 94. While Minnesota caselaw has yet to delineate the parameters of this
fairness analysis, federal caselaw provides guidance. It identifies four fairness factors that
a district court should consider when deciding whether to admit the entirety of a
recording: whether “it is necessa ry to (1) explain the admitted portion, (2) place the
admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and
impartial understanding.” United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987)
(quotation omitted); see also State v. Mills, 562 N.W.2d 276, 286-87 (Minn. 1997) (noting
that rule 106 “applies only where it is necessary to give the jury a full understanding of the
facts and it may not be used to introduce otherwise irrelevant statements”). And if

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consideration of fairness weighs in favor of admitting the entire statement or recording, the
district court should require its introduction in its entirety.
Application to Dolo
With rule 106 in mind, we turn to Dolo’s case. Here, during its direct examination
of the detective who interviewed Dolo, the state sought to introduce a roughly eight-minute
portion of Dolo’s one-hour interview with police, during which he discussed the layout of
the house and living arrangements. The state contended that Do lo lied about the living
arrangements at the house, which demonstrated a consciousness o f guilt. Dolo objected,
contending that rule 106 required the recording to be played in its entirety. In response,
the state, citing State v. Bauer, 598 N.W.2d 352 (Minn. 1999), maintained that the district
court should not require the entire interview to be played because the portion being played
was not misleading to the jury a nd because the balance of Dolo’ s statements were
self-serving hearsay. After reviewing the transcript of the entire interview, the district court
ruled that it was appropriate for the state to play only part of the recording because it was
limited to a very specific topic: the layout of the home. We disagree.
Although the topic of the record ing—living arrangements and the layout of the
home—may have been limited in scope, the state’s purpose for introducing the portion of
the recording was much broader. As the prosecutor explained to the district court, Dolo
allegedly lied to police during his interview ab out the living arrangements at his house.
And, according to the prosecutor, this demonstrated a conscious ness of guilt. But the
district court failed to acknowled ge the state’s purpose—to dem onstrate that Dolo lied to
police—when determining that the state did not have to introduce the entire recording. The

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rest of the recording, as Dolo a rgues, contained his repeated a ssertions to police that the
children’s mother was fabricating allegations of sexual abuse b ecause he was awarded
custody of their children. Had the entire recording been played, the jury could have better
understood the context of the entire interview, particularly gi ven that several of Dolo’s
statements during the interview refuted the state’s consciousness of guilt argument.
Further, in announcing its decisi on, the district court made no mention of any
fairness analysis it conducted when reaching its conclusion. Nothing in the record indicates
that the district court considered fairness at all, either implicitly or explicitly. For instance,
the district court did not consider whether the entire recordin g would have helped place
Dolo’s statements in context, avoided misleading the jury, and ensured a fair and impartial
understanding of the recording. See Sweiss, 814 F.2d at 1211-12. Had the district court
considered these factors, it very well may have concluded that requiring the state to play
the entire recording for the jury was necessary for the sake of fairness. See Minn. R. Evid.
106. Instead, the district court’s ruling had the arguable eff ect of allowing the state to
demonstrate that Dolo was not cre dible and showed a consciousne ss of guilt without
allowing the jury to consider the context of the entire intervi ew, which contained
statements from Dolo refuting the state’s consciousness of guilt argument. See Sweiss, 814
F.2d at 1211-12 (identifying placing the recording in context and avoiding misleading the
jury as factors a district court should consider when conductin g a fairness analysis under

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rule 106). As such, it was an abuse of discretion for the district court to deny Dolo’s request
pursuant to rule 106 without conducting the required fairness analysis.8
The state relies on Bauer in support of its argument that the district court properly
excluded the entire recording. This reliance is misplaced. In Bauer, the state did not
introduce any part of the actual recording into evidence, inste ad relying on the testimony
of officers who interviewed the defendant. 598 N.W.2d at 368. And the supreme court
reiterated that rule 106 of the Minnesota Rules of Evidence “is n o t a p p l i c a b l e u n l e s s
portions of the actual recording have been introduced into evid ence.” Id. But here, the
state very clearly sought to int roduce a portion of the actual recording and in fact did so.
Because no recording was in troduced into evidence in Bauer, it does not dictate the
outcome of this case.
The state further contends that the district court properly excluded Dolo’s statements
made during the remainder of the interview under the doctrine o f self-serving hearsay.
Hearsay is “a statement, other than one made by the declarant w hile testifying at the trial
or hearing, offered in evidence to prove the truth of the matte r asserted.” Minn. R. Evid.
801(c). And hearsay is not admissible at trial unless it falls into one of several exceptions
delineated in the rules of evidence. Minn. R. Evid. 802.
While the rules of evidence provide several exceptions that all ow statements that
would otherwise be classified as inadmissible hearsay to be adm itted into evidence, the

8 We further note that neither party could point this court to a case in which a Minnesota
state court upheld admitting only a portion of a recording wher e the defendant requested
that the entire recording be admitted.

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rules also categorically exempt some statements from being clas sified as hearsay at all.
That is to say that the rules of evidence identify certain types of statements that simply are
not hearsay. See Minn. R. Evid. 801(d). One type of statement that is not hears ay is a
statement by a party-opponent. Minn. R. Evid. 801(d)(2). A st atement can be
characterized as a statement by a party-opponent when it is the party’s own statement
offered against the party. Id.
Here, we conclude that Dolo’s sta tements to police are properly characterized as
statements by a party-opponent. The state—not Dolo—sought to introduce part of Dolo’s
recorded interview with police. Because the state—the adverse party—sought to introduce
Dolo’s own statements against him, his statements are statement s of a party-opponent.
They are not hearsay. See Minn. R. Evid. 801(d)(2).
Our conclusion is further bolstered by our reading of rule 106. Under rule 106, a
party may require the adverse party to introduce the entirety of a recorded statement.
Minn. R. Evid. 106. In this case, that means that Dolo had the right to require the state to
introduce the entire recording. 9 And again, because the state would have been the party
introducing the entire recording, Dolo’s statements are appropr iately characterized as
statements by a party-opponent. See Minn. R. Evid. 801(d)(2); see also State v. Robertson,
884 N.W.2d 864, 873 n.8 (Minn. 2016) (recognizing that “[a] statement of a party opponent

9 We note that if the district court had ruled in Dolo’s favor a nd required the state to
introduce the entire recording of the interview, the state coul d have withdrawn its request
to play a portion of the interview. See State v. Robledo-Kinney , 615 N.W.2d 25, 29-31
(Minn. 2000).

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is not hearsay when offered against the party opponent and several other conditions are
met”). Simply stated, before a s tatement can properly be chara cterized as self-serving
hearsay, it must in fact be classified as hearsay. We conclude that Dolo’s statements are
not. Accordingly, we are not persuaded by the state’s contenti o n t h a t t h e r u l e a g a i n s t
hearsay—self-serving or not—justified the district court’s deci sion to allow the state to
play only a portion of Dolo’s interview with police.
In sum, when a party seeks to introduce part of a recorded stat ement, the opposing
party may require the introduction of the entire recording unde r rule 106. And rule 106
mandates that when a party makes such a request, the district court must consider whether,
for the sake of fairness, the entire recording should be played. Here, it is not evident that
the district court evaluated Dolo’s request to require the stat e to play the entire recording
on the basis of fairness. Because the district court did not p roperly consider whether
fairness required the introduction of the entire recording of D olo’s interview with police,
we conclude that it was an abuse of discretion for the district court to deny Dolo’s request
under rule 106.
Prejudicial Effect
Because we conclude that the dist rict court abused its discreti on by allowing the
state to play only a portion of Dolo’s interview with police wi thout conducting a fairness
analysis, we turn to consider the prejudicial effect, if any, o f the exclusion of the entire
recording. When defense evidence is erroneously excluded, we must determine “whether,
assuming that the damaging potential of the [excluded evidence] were fully realized, a

16

reviewing court might nonetheless say that the error was harmle ss beyond a reasonable
doubt.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (quotation omitted).
Here, the prejudicial effect of the exclusion of the entire int erview is evident. As
Dolo notes, the key question in this case involved witness credibility and whether the jury
believed his testimony or the children’s testimony. Presenting the entire interview in which
D o l o a s s e r t e d e s s e n t i a l l y t h e s a me defense—that the children’s mother was fabricating
allegations against him because of the custody arrangement—could have given credibility
to the same testimony he presented at trial and removed any concern that Dolo only came
up with the strategy for trial.
Certainly, the magnitude of the prejudicial effect of the erroneous-evidentiary ruling
unfolded as trial proceeded. Fir st, Dolo attempted to cross-ex amine the detective about
whether Dolo maintained his innocence during the interview and about whether Dolo ever
admitted to sexually abusing his children. But the district co urt sustained the state’s
hearsay objections to each of t hose questions, preventing Dolo from eliciting that
information for the ju ry. And during the state’s cross-examina tion, the state asked Dolo
several questions about statements he did or did not make to police du ring the portion of
the interview that was not p l a y e d f o r t h e j u r y . F o r i n s t ance, consider the following
exchange between the prosecutor and Dolo:
Q. You had an interview with the police in this case, yes or no?
A. With [the detective].
Q. Yeah.
A. Yeah.

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Q. Okay. It was an hour long, approximately. I played about ten minutes of
it, right?

A. Yeah.

Q. Okay. During the [portion] tha t I left out you professed you r innocence,
correct?

A. Absolutely.

Q. All right. You told her that this was all made up?

A. Yeah, I told- Whatever I said on the interview. That was way back in
January.

Q. What you didn’t say is that [the children’s mother] called you and told
you she was going to retaliate against you. Did you ever say that?

A. If you go back in January I won’t be accurate, I think I might, I think I
did say that but I’m not quite sure because it was back in January. And on
that interview, just to give you a little key information—

. . . .

Q. Are you saying that in that interview with [the detective] you told her
that [the children’s mother] called you and said that she was going to
retaliate?

A. No, I didn’t say it just like that.

Q. Okay.

A. I didn’t say it just like that. What you saw for last ten minutes and going
back, I can’t be all accurate, actually.

Q. I understand. It’s been a while.
A. Yeah, it’s been a while, it’s been heavy on my mind with thi s whole
allegation story.

Q. Did you tell the detective that [the children’s mother] indicated to you in
any way that she was going to frame you for a crime?

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A. Probably I believe I did.
Q. Okay. That's all I wanted to know. You said you told the Detective?
A. Probably I believe I did.
Q. Probably you believe you did. So if you did it’s on the recording?
A. Yeah, probably I believe I did.
Q. And if you did it’s on the recording?
A. We’re in the month of June, that was January, I can’t be qui te accurate
now.

Q. I got you. But if you said that then it’s on the recording, right.
A. Probably I did. I will go with probably I did.
Despite the prosecutor’s repeated questioning of Dolo about wha t he did or did not tell
police, and despite Dolo’s repeated assertions that he did not remember exactly what he
said but that it would be on the recording, the jury never heard the entire recording. And
without listening to the entire re cording, the jury was unable to evaluate the prosecutor’s
questions and Dolo’s answers within the context of the interview as a whole.
Still, the state contends that because all of the information Dolo told police was
conveyed to the jury through his testimony, any error in exclud ing the entire recording of
the interview was harmless. Thi s argument ignores the reality of this case. Ultimately,
this case centered on credibility and on whether the jury believed the children’s testimony
or Dolo’s testimony. And his statements to police in his interview could have provided the
jury with a basis to conclude that Dolo was testifying credibly based on the consistency of

19

his defense. Accordingly, we conclude that the district court’s erroneous exclusion of the
entire recording was not harmless beyond a reasonable doubt.
Because it was an error for the district court to allow the state to play only a portion
of Dolo’s interview with police without conducting a fairness analysis and because we are
not satisfied that the exclusion of the entire recording was ha rmless beyond a reasonable
doubt, we conclude that Dolo is entitled to a new trial.
D E C I S I O N
The purpose of rule 106 of the Minnesota Rules of Evidence—whic h is premised
on fairness—is to protect individuals from potentially false im pressions created by
incomplete evidence, realizing that an initial false impression m a y n e v e r b e o v e r c o m e
despite later efforts. Here, nothing in the record suggests that the district court considered
whether the entire recording “ought in fairness” be introduced. Minn. R. Evid. 106. This
decision to permit the state to introduce only a portion of Dolo’s interview to demonstrate
his consciousness of guilt withou t evaluating, in fairness, whe ther Dolo should have the
same opportunity—through playing the entire interview—is not in accordance with rule
106. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.