State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0932

State of Minnesota,
Appellant,

vs.

Carr Leon Hagerman,
Respondent.

Filed January 21, 2020
Reversed
Hooten, Judge

Scott County District Court
File No. 70-CR-18-10396

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for appellant)

Piper Kenney Wold, Law Office of Piper Kenney Wold, Minneapolis, Minnesota (for
respondent)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from a pretrial order in a criminal sexual conduct case, the state argues
that: (1) the district court’s decision to allow evidence of a separate sexual assault of the

2
complainant by another perpetrator critically impacts the state’s case, and (2) the district
court’s allowance of such evidence is in violation of Minnesota’s rape-shield law, Minn.
Stat. § 609.347, subd. 3 (2016), and constitutes an abuse of discretion. We reverse.
FACTS
The state charged respondent Carr Leon Hagerman with two counts of first -degree
criminal sexual conduct after receiving information of the following alleged sexual assault.
In the fall of 2017, the complainant was working as a part -time photographer at the
Renaissance Festival. She later reported that the following events occurred: On September
23, Hagerman, the festival’s entertainment director, asked the complainant to take a picture
from a building located at the site of the festival. Hagerman brought her to the upstairs
floor of the building and in to a storage room for drums, when he noticed that she was
wearing a pink ribbon in solidarity with a support group for wome n at the festival.
Angered, Hagerman ripped the ribbon off of her and began to beat her. Hagerman forced
his penis into her mouth, then penetrated her anally and vaginally with a drum stick. He
then penetrated her anally with his penis. He continued to beat her throughout the assault
until she lost consciousness. Two days later, the complainant went to the doctor , but did
not report the sexual assault. Instead, she was treated , according to her medical records,
for “pain and numbness in her right hand from an injury incurred two days earlier.”
On October 30, 2017, at the urging of her therapist and a friend, the complainant
presented at the hospital for a mental health evaluation. Following discharge, the
complainant’s friend was driving her to the police station to report Hagerman, when the

3
complainant became agitated and fled the car. She fell and hit her head. Police and
paramedics arrived and brought her to North Memorial Hospital for treatment.
When the comp lainant first arrived at the hospital, she told emergency room staff
that she was sexually assaulted by a colleague in September and had been depressed since
the assault. Hospital records show that on November 3, three doc tors treated the
complainant. In the early afternoon, she saw a psychiatrist and told him that, in addition
to being sexually assaulted in September, she was also sexually assaulted the weekend
before presenting at the hospital. In the evening, she saw a family medicine physician.
The physician noted, “Patient reports that she was sexually assaulted (vaginally) in
September by someone she worked with, and then again, rectally, by a different person this
past weekend . . . Patient also states that she has had rectal bleeding since the la st assault
that is now scant in quantity. ” About an hour later, a third physician examined the
complainant for an “evaluati on regarding sexual assault.” The physician’s notes indicate
that the complainant “states she was sexually assaulted a month and a half ago and again a
week ago by a different person. She stated that the second assault involved rectal
penetration and since that time she has bee n experiencing pain for about 1 –2 hours
following defecation,” but reported that she no longer had rectal bleeding.
Four days later, on November 7, a Scott County Sheriff’s Office detective
interviewed the complainant. The detective began the interview by stating, “I was made
aware of an incident between you and another male at the Renaissance Festival. So , we
just kind of want you to explain to me what ha ppened during that incident.” The

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complainant then explained, in detail, the sexual assault. She was discharged from the
hospital on November 11, 2017.
The state charged Hagerman with two counts of criminal sexual conduct in the first
degree on June 12, 2018. On March 19, 2019, Hagerman moved to admit evidence of the
complainant’s medical records in which she re ported that she had been recently sexually
assaulted by another individual in a separate incident.
A pretrial motion in limine hearing was held on March 21, 2018. At the hearing,
Hagerman argued that the complainant made inconsistent statements to her physician and
the police because she told her physician that Hagerman penetrated her vaginally and that
she was penetrated anally in the second sexual assault, while she told the police that
Hagerman penetrated her vaginally, anally, and orally . He also argued that the
complainant’s accusation of a second unrelated sexual assault is not prec luded from
admission by Minnesota’s rape -shield law because it was a false accusation. The state
argued that there was nothing to indicate that the allegation of a second sexual assault was
in any way fabricated.
The district court granted Hagerman’s mo tion. It decided, “Information contained
in the Complainant’s North Memorial medical records dated on and about November 3,
2017, regarding a separate sexual assault, including any discrepancies and inconsistencies
between that event and the present charg es, may be elicited at trial.” The state moved for
reconsideration, and the district court agreed to reconsider its decision.
The district court issued an order after reviewing the parties’ submissions and the
entire record and affirmed its prior decis ion to rule admissible the statements made

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regarding the alleged second sexual assault. The district court noted that it “intends to
afford Defendant the opportunity to highlight the possible contradictions or discrepancies
in Complainant’s statements, wh ere these same contradictions or discrepancies may well
factor heavily in a factfinder’s determination of substantive evidence an d Complainant’s
credibility.” The district court considered the “competing interests” of the parties —the
protections afforded by the rape -shield law and Hagerman’s right to present a full and
complete defense. The district court weighed the interests and determined that Hagerman’s
right to present a full defense included any discrepancies in the complainant’s reports. The
district court also determined that there was a reasonable probability that the complainant’s
second allegation of sexual assault was false. This appeal follows.
D E C I S I O N
The state challenges the district court’s pretrial order affirming its decision to admit
statements about the second allegation of sexual assault . The state argues that (1) the
admission of evidence that the complainant reported being sexually assaulted by another
individual in a separate incident critically impacts the state’s case, and (2) the district court
abused its discretion by admitting such evidence in violation of Minnesota’s rape-shield
law.
I. Admission of the complainant’s second separate report of sexual assault by
another individual will have a cri tical impact on the state’s ability to
prosecute Hagerman.

In a state pretrial appeal, appellate courts will only reverse if the state can “ clearly
and unequivocally show both that the trial court’s order will have a critical impact on the
state’s ability to prosecute the defendant successfully and that the order constituted error.”

6
State v. Zanter , 535 N.W.2d 624, 630 (Minn. 1995) (quotations omitted). This critical -
impact test applies to pretrial orders admitting evidence. State v. Skapyak , 702 N.W.2d
331, 335 (Minn. App. 2005), review denied (Minn. Oct. 18, 2005). This court “view[s]
critical impact as a threshold issue and will not review a pretrial order absent such a
showing.” State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017) (quotations omitted).
The critical-impact test “is intended to be a demanding standard” and requires the
state to show that the ruling “‘significantly reduces the likelihood of a successful
prosecution.’” State v. Rambahal , 751 N.W.2d 84, 89 (Minn. 2008) (quoting State v.
McLeod, 705 N.W.2d 776, 784 (Minn. 2005)). While a demanding standard, “it is a fair
and workable rule.” Zanter, 535 N.W.2d at 630.
Minnesota’s rape-shield law strictly limits the admissibility of a victim’s sexual
history. State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn.
Apr. 18, 1991). “[P]revious sexual conduct shall not be admitted nor shall any reference
to such conduct be made in the presence of the jury, except by court order under the
procedure provided in Rule 412.” Minn. R. Evid. 412(1). A victim’s previous sexual
conduct, under Minn. Stat. § 609.347, subd. 3 , includes allegations of sexual abuse.
Kobow, 466 N.W.2d at 750. The district court must determine whether the probative value
of the evidence of a victim’s sexual conduct is substantially outweighed by its
inflammatory or prejudicial nature in order to be admitted. Minn. R. Evid. 412(2)(C).
The state argues that the district court’s ruling the evidence admissible that the
complainant reported a second sexual assault critically impacts the outcome of the state’s
case against Hagerman because the case rests on the complainant’s credibility.

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In this case, the district court found that “the credibility of Complainant will
inevitably be paramount to the jury’s decision regarding De fendant’s guilt or innocence.”
We agree that the complainant’s credibility is highly important to the defense’s case. But
the complainant’s second allegation of sexual assault —that she was penetrated anally
without her consent by another individual about one month after the incident in question—
is evidence of sexual conduct that is considered highly prejudicial to a jury. See State v.
Olsen, 824 N.W.2d 334, 340 (Minn. App. 2012) (admitting evidence of a victi m’s prior
sexual conduct is “highly prejudicial”). The district court ruled as admissible evidence not
only what is clearly protected by Minnesota’s rape-shield law, but irrelevant evidence
intended only to discredit the complainant. As the district court found, the “likely
implication [that the complainant’s statements were inconsistent] is that the statements are
false.” If the jury were to consider evidence of the second allegation of sexual assault , it
is likely that they would be swayed by irrelevant inferences that either the complainant lied
about one or both sexual assaults or that she somehow caused the sexual assaults to occur.
Both highly prejudicial inferences are protected against by the rape-shield law. Because
the admission of the complainant’s report of a second unrelated sexual assault would allow
for highly prejudicial inferences by the jury, we hold that admitting her statements would
have a critical impact on the state’s case.
II. The district court abused its discretion by ruling admissible evidence of the
complainant’s unrelated and irrelevant report of sexual abu se by another
individual.
The state argues that the district court abused its discretion by ruling admissible
evidence that the complainant made a second sexual assault allegation against another

8
individual. We “largely defer to the trial court’s exercise of discretion in evidentiary
matters and will not lightly overturn a trial court’s evidentiary ruling.” State v. Kelly, 435
N.W.2d 807, 813 (Minn. 1989). Evidentiary rulings stand unless there is a clear abuse of
discretion. Id.
The rape -shield law “serves to emphasize the general irrelevance of a victim’s
sexual history.” State v. Crims, 540 N.W.2d 860, 867 (M inn. App. 1995), review denied
(Minn. Jan. 25, 1996). The law prohibits admission of a victim’s prior sexual assault
allegation, unless the pr ocedure in Minn. R. Evid. 412 is followed. Kobow, 466 N.W.2d
at 750. Evidence of prior sexual conduct may be ad mitted when “it is constitutionally
required by the defendant’s right to due process, his right to confront his accuser, or his
right to offer evidence in his own defense.” Id. Yet even i n doing so, the district court
must balance the probative value of the evidence against its “inflammatory or prejudicial
nature.” Minn. R. Evid. 412(2)(C); Kebow, 466 N.W.2d at 750. When a conflict arises
between the defendant’s con stitutional rights and the rape -shield law, “the defendant’s
constitutional rights requir e admission of evidence excluded by the rape shield law.”
Crims, 540 N.W.2d at 866.
A. The complainant’s out-of-court statements were improperly ruled admissible
as inconsistent statements.

The district court first addressed whether the complainant’s statements regarding
the second unrelated allegation of sexual assault by another individual is admissible as
inconsistent statement s necessary to Hagerman’s right to present a full and complete

9
defense. The district court found that the complainant’s statements are highly relevant
based on their inconsistencies.
The district court concluded that this case was similar to our decision in State v.
Carroll, 639 N.W.2d 623 (Minn. App. 2002), review denied (Minn. May 15, 2002). In that
case, the defendant was charged with two counts of criminal sexual conduct after a teenage
girl reported that the defendant had inappropriately touched her. Carroll, 639 N.W.2d at
626. The victim had previously been questioned by police after an allegation arose that the
defendant was found lying in bed with her. Id. at 625. In a videotaped statement, the
victim told officers that she had not been inappropriately touched by anyone. Id. Nearly
a year later, she came forward and, in a second videotaped statement, told officers that the
defendant had inappropriately touched her and that she had been inappropriately touched
by another man. Id. at 626. At trial, the district court admitted both videotaped statements
into evidence . Id. Although the district court admitted the inconsistent statements, it
refused to allow the defense to cross -examine the victim on the inconsistency and
prohibited any reference to the inconsistency in closing argument. Id. The jury found the
defendant guilty, and he appealed. Id.
This court considered whether the defendant’s constitutional rights mandated that
the defense should be able to cross -examine the victim regarding her inconsistent
statements. Id. at 627. Because the jury heard the conflicting statements already, this court
found that “due process mandates appellant have the right to impeach [the victim] through
cross-examination as to those inconsistent statements, and now her claim that not one man,
but rather two different individuals, had inappropriately touched her.” Id. at 629. This

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court further emphasized that when evidence is “admitted in a trial and heard by the jury,
thus giving the jury the right to consider it for whatever it is worth, we cannot fatho m a
case where either the state’s attorney or the defendant’ s attorney is not allowed to refer to
evidence that has been admitted!” Id.
In this case, t he district court determined that “the reasoning in Carroll is, by and
large, applicable to the instant case” because “the credibility of Complainant will inevitably
be paramount to the jury’s decision regarding Def endant’s guilt or innocence.” While we
agree that the complainant’s credibility is highly important, Carroll is not controlling as
this case can be distinguished from Carroll in three ways. First, this is an appeal from a
pretrial order on admissibility. No jury has been selected, and a jury has not yet heard any
statements from the complainant. Unlike in Carroll, where the main question was whether
the district court’s ruling prohibiting the defense from questioning the victim about the
conflicting statements was proper, the question here is whether the complainant’s second
unrelated allegation of sexual assault should be admitted in the first place.
Second, the victim’s statements in Carroll were clearly inconsistent. In the first
videotape, the victim said that “no one had ever touched her inappropriately.” Id. at 625.
In the second videotape, she said that she “had been inap propriately touched by appellant
and by another man.” Id. at 625 –26. The statement in the second videotape directly
contradicts her statement in the first videotape and therefore is probative of her credibility.
Id. at 627. In this case, the complainant’s statement regarding the second sexual assault is
not inconsistent with her statements about being sexually assaulted b y Hagerman. The
complainant told one of her physicians that she had been vaginally penetrated by Hagerman

11
in the first sexual assault and anally penetrated by another man in the second sexual assault.
Days later, police interviewed her regarding the first sexual assault. She told the detective
that she had been vaginally, anally, and orally penetrated by Hagerman without her
consent. The complainant’s second allegation of sexual assault is, in no way, contradictory
to her report that Hagerman sexually assaulted her. No inconsistency exists between her
statements regarding the second sexual assault with her reports that Hagerman sexually
assaulted her.
Third, and importantly, the state does not argue that the complainant’s report to her
physician of the first sexual assault should be excluded. It is true that t he complainant’s
statement to her physician that Hagerman vaginally penetrated her during the assault is not
entirely consistent with her report to the detective that Hagerman vaginally, anally, and
orally raped her. For this reason, the defense is free to point out any discrepancies between
her reports regarding the first sexual assault. Furthermore, the defense may cross-examine
the complainant and refer to any discrepancies in her statements during closing argument,
unlike what occurred in Carroll.
For these reasons, we hold that the district court abused its discretion by ruling
admissible evidence of the complainant’s statements regarding the second unrelated
allegation of sexual assault by another individual because there are no inconsistencies in
her report of a second sexual assault with her reports that Hagerman sexually assaulted her.
Because there is no inconsistency, excluding the evidence of the second sexual assault does
not impede in any way on Hagerman’s right to present a full and complete defense.

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B. The district court abused its discretion in determining that the complainant
made a subsequent false accusation.

After the district court ruled admissible the second allegation of sexual assault as
inconsistent statement s, it discussed, as an “aside,” whether there was a reasonable
probability that the complainant’s second allegation of sexual assault was false. 1 The
district court concluded that “there is a reasonable probability that the additional allegation
is false,” and the state argues that this finding constitutes an abuse of discretion.
Prior false accusations of sexual abuse are admissible to attack a victim’s credibility.
Goldenstein, 505 N.W.2d at 340. “Before evidence of prior false accusations is admissible,
however, the trial court must first make a threshold determination outside the presence of
the jury that a reasonable probability of falsity exists.” Id. This court has yet to define
“reasonable probability of falsity” in a published opinion. State v. Spiegel, No. A15-1523,
2016 WL 4162778, at *2 (Minn. App. Aug. 8, 2016), review denied (Minn. Oct. 26, 2016).
In Spiegel, an unpublished opinion of this court, we adopted the standard of “reasonable
probability” as defined by the Minnesota Supreme Court in the context of ineffective
assistance of counsel cases: “a probability sufficient to undermine confidence in the
outcome.” Id. (quoting Leake v. State , 767 N.W.2d 5, 10 (Minn. 2009) ). In another
unpublished case, we applied the probable-cause standard as the “reasonable probability of

1 While the district court did not explicitly admit the complainant’s statements regarding
the second sexual assault as prior inconsistent statements, a finding of falsity is a
prerequisite for admitting prior false accusa tions. State v. Goldenstein, 505 N.W.2d 332,
340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993) . Because the district court
found a reasonable probability of falsity, we address the state’s argument that the district
court abused its discretion in making this finding.

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falsity” standard. State v. Horton, No. A13-0181, 2014 WL 621364, at *10 (Minn. App.
Feb. 18, 2014) (citing State v. Harris, 202 N.W.2d 878, 881 (Minn. 1972)). We need not
determine which definition applies as either would suffice to conclude that the district court
abused its discretion by finding that there was a reasonable probability of falsity as to the
complainant’s second allegation of sexual abuse.
In its order, the district court noted that the record before it was “very limited” and
that the only evidence available was the “short statements given by the Complainant.”
While noting that it did not reach its decision with ease, the district court concluded that ,
“given the contradi ctory and inconsistent nature of the statements,” the complainant’s
second allegation of sexual assault was false.
After a careful review of the record, we find no evidence to support the district
court’s determination. The stipulated record on appeal contains the complainant’s
statements to the police, medical records from her stay at North Memorial hospital, and the
ambulance record from October 30, 2017. In the over 200-page record, the only references
to the second allegation of rape are from the complainant herself. The district court
considered her statements inconsistent and therefore concluded that she fabricated the
second sexual assault. But the defendant has not produced even a shred of evidence to
support the district court’s finding. Th e complainant did not tell her physicians varying
versions of the second allegation but was consistent in reporting that she had suffered rectal
bleeding and pain from the second sexual assault that had lessened over time. Furthermore,
in each instance that the complainant reported the second sexual assault, she also reported

14
the earlier sexual assault by Hagerman . It is unclear how the district court arrived at its
conclusion given the “very limited record” before it.
Because there is no evidence in the record to support a finding that there is a
reasonable probability that the complainant’s second allegation of sexual assault was false,
the district court abused its discretion. As the district court abused its discretion in making
the threshold determination of falsity, the complainant’s statements regarding the second
sexual assault cannot be admitted as a subsequent false accusation.
C. The complainant’s statements are not relevant.
Absent a showing that the complainant’ s statement regarding the second sexual
assault is admissible as an inconsistent statement or a subsequent false accusation, we next
determine whether there remains any relevancy to support the admission of the statements
based on Hagerman’s right to present a full and complete de fense. We first note that the
district court did not balance the probative value of admitting the statements with their
“inflammatory or prejudicial nature” as required by Minn. R. Evid. 412(2)(C). To be
admitted, the probative value must “substantially outweigh” the prejudicial nature of the
statements of prior sexual conduct. Id.
In State v. Crims, we discussed the relevancy of a victim’s past sexual history. 540
N.W.2d at 868. We noted that:
[E]vidence of sexual activity with third persons cannot
withstand a rule 403 weighing unless special circumstances
enhance its probative value. Such circumstances include
situations in which the evidence explains a physical fact in
issue at trial, suggests bias or ulterior motive, or establishes a
pattern of behavior clearly similar to the conduct at issue.

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Id. (emphasis omitted) (internal citations omitted).
Because the complainant’s statements were not inconsistent regarding the second
sexual assault, and th ere is no evidence that these statements were a nything but truthful,
we cannot fathom any other basis for admitting the evidence of her statements in light of
the rape-shield law. None of the special circumstances described in Crims exist here. It is
clear that the defense intends to suggest that the complainant’s second report of sexual
assault was false. Bu t because we have already determined that there is no evidence to
support that inference, the second report of sexual assault has no bearing on the
complainant’s report that Hagerman sexually assaulted her. The nature of the evidence
that the complainant was sexually assaulted a second time, a month after being sexually
assaulted by Hagerman, is highly prejudicial and inflammatory for the reasons discussed
earlier. The prejudicial nature of the statements substantially outweigh s any probative
value of their admission, even though we are disinclined to find that the second allegation
of sexual assault carries any probative value at all.
Therefore, w e conclude that the district court abused its discretion in ruling
admissible the complainant’s statements regar ding the allegations of a second sexual
assault by another individual as inconsistent statements or as a subsequent false accusation.
Because there is no conflict between Hagerman’s right to present a full and complete
defense and the protections afforded by the rape-shield law, we reverse the district court’s
pretrial order.
Reversed.