State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1985

State of Minnesota,
Respondent,

vs.

Andy Ralph Garbow,
Appellant.

Filed January 20, 2026

Affirmed in part, reversed in part, and remanded
Schmidt, Judge
Concurring in part, dissenting in part, Bentley, Judge

Mille Lacs County District Court
File No. 48-CR-21-2241

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

Corey Haller, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schmidt, Presiding Judge; Bentley, Judge; and
Halbrooks, Judge.∗

∗Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant Andy Ralph Garbow advances five grounds to challenge his convictions
of, and corresponding sentences for, first- and second-degree criminal sexual conduct.
Garbow argues that (1) his second-degree criminal sexual conduct conviction should be
reversed because respondent State of Minnesota failed to produce sufficient evidence to
prove his guilt. Garbow also argues that he should receive a new trial because (2) the
district court violated his constitutional rights under the Confrontation Clause, and (3) the
prosecutor committed misconduct during the rebuttal closing argument by disparaging the
defense and inflaming the passions and prejudices of the jury. Garbow also seeks a remand
for resentencing, arguing (4) the district court improperly imposed a lifetime conditional
release for the second-degree criminal sexual conduct conviction, and (5) the district court
improperly calculated his criminal-history score.
Because we conclude that the evidence was sufficient to prove Garbow’s guilt for
second-degree criminal sexual conduct, any violation of the Confrontation Clause was
harmless beyond a reasonable doubt, and the prosecutor’s comments did not amount to
misconduct, we affirm Garbow’s convictions. We also affirm the district court’s
imposition of a lifetime conditional release. We remand, however, for the district court to
recalculate Garbow’s criminal-history score.
3
FACTS
Respondent State of Minnesota charged Garbow with five felony counts of criminal
sexual conduct. The complaint allege d that Garbow sexually abused R.A. and N.A.
between 2013 and 2017 when the girls lived with their grandparents. Counts I-III related
to first-degree criminal sexual-contact charges involving N.A., while Counts IV and V
related to second-degree criminal sexual-contact charges involving R.A.
At the jury trial, the mother of R.A. and N.A. testified about learning of Garbow’s
abuse and subsequently reporting the abuse to law enforcement. Mother testified that, at
the time of the abuse 15 people, including Garbow, lived in the same house. Garbow was
R.A.’s uncle and N.A.’s cousin.
A law-enforcement officer testified about taking reports of the abuse and scheduling
the forensic interviews for R.A. and N.A. Two investigators testified about the forensic
interviews they conducted. R.A. and N.A. also testified at trial as follows.
A. The testimony of R.A.
On direct examination, R.A. testified that Garbow sexually abused her when she
was 11 years old. R.A. recounted that Garbow touched her vagina area over her clothing
while she pretended to be asleep in the top bunk bed. R.A. participated in two forensic
interviews during which she recounted the abuse.
Defense counsel’s cross-examination of R.A. detailed the inconsistencies between
R.A.’s trial testimony and her forensic interviews. The cross-examination focused on such
discrepancies as R.A.’s age at the time of the abuse, the number of times she was abused,
and where she went after the abuse.
4
B. The testimony of N.A.
N.A. testified that Garbow repeatedly abused her, putting his penis in her mouth and
vagina. N.A. recounted Garbow threatening her if she told anyone about the abuse. N.A.
also testified about participating in a forensic interview at which she described the abuse.
N.A.’s trial testimony and her statements made during the forensic interview contained
discrepancies, which Garbow’s defense counsel highlighted during cross-examination.
During her cross-examination testimony, N.A. appeared distressed. Defense
counsel asked if N.A. needed a break, she nodded her head, and the court took a recess.
During the break, the prosecutor indicated N.A. could not continue and asked the
court to find her unavailable and excuse her from further testimony. After an additional
recess, a courthouse security officer testified—outside the presence of the jury—that he
observed N.A. lying on the floor, breathing heavily, and unresponsive to voices. Two
separate ambulances were dispatched, treated N.A. at the scene, and transported her to the
hospital. The district court determined that N.A. would not be able to con tinue her
testimony that day. The court informed the jury that N.A. was temporarily unavailable and
the state continued with its case-in-chief.
The next day, the state presented the district court and defense counsel with a note
from a doctor at the hospital stating, “Please excuse patient from trial activities/testifying
if at all possible due to the detrimental impact it has incited on patient’s health.” The note
stated N.A. would be unavailable from November 1, the date the note was signed, through
November 10, 2023. The trial was set to conclude on November 3, 2023. While Garbow
did not factually contest the doctor’s note or move for a mistrial, defense counsel did
5
request that the district court enter a judgment of acquittal. The district court denied the
motion for judgment of acquittal. The court gave the jury instruction defense counsel
requested about N.A.’s unavailability for the remainder of trial. And because N.A. could
not finish the cross-examination, the district court admitted N.A.’s forensic interview only
for impeachment purposes as a “penalty for her inability to finish cross examination.”
C. The closing argument, verdicts, and the motion for a new trial.
During closing argument, defense counsel focused extensively on the discrepancies
in N.A. and R.A.’s trial testimony as compared to their forensic interview statements.
Defense counsel argued the inconsistencies demonstrated that N.A. and R.A. were not
telling the truth about the abuse. Defense counsel also highlighted N.A.’s inability to
complete her cross-examination, characterizing N.A. as “running away” and “hiding.”
During the state’s rebuttal closing argument, the prosecutor stated, “[y]ou saw
[N.A.] break after being repeatedly called a liar by an adult. It doesn’t mean she’s lying.”
Defense counsel objected, which the district court noted for the record.
The jury found Garbow guilty on all counts. Garbow filed motions for judgment of
acquittal and for a new trial, which the district court denied.
D. Garbow sentenced and received a lifetime conditional-release term.

The district court sentenced Garbow to 201 months in prison and imposed a ten-
year-conditional-release term for the first-degree criminal sexual conduct conviction. The
court then sentenced Garbow to 142 months in prison and imposed a lifetime conditional-
release term for the second-degree criminal sexual conduct conviction.
This appeal followed.
6
DECISION
I. The evidence supported the second-degree criminal sexual conduct verdict.

Garbow argues that the state did not produce sufficient evidence to prove that he
engaged in sexual contact with R.A. because her testimony was contradictory, and the
allegations were uncorroborated. When reviewing a sufficiency-of-the-evidence challenge
to a conviction, appellate courts “view the evidence in the light most favorable to the
verdict and consider whether the evidence was sufficient to permit the jurors to reach the
verdict that they did.” State v. Moore, 10 N.W.3d 676, 682 (Minn. 2024). The reviewing
court must assume “the jury believed the state’s witnesses and disbelieved any evidence to
the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A verdict will not be
disturbed if a fact-finder “could reasonably conclude, given the presumption of innocence
and the requirement of proof beyond a reasonable doubt, that the defendant is guilty of the
charged offense.” State v. King, 990 N.W.2d 406, 416 (Minn. 2023) (quotation omitted).
“A defendant bears a heavy burden to overturn a jury verdict.” State v. Vick, 632 N.W.2d
676, 690 (Minn. 2001).
1
To be guilty of second-degree criminal sexual conduct, the state had to prove
beyond a reasonable doubt that Garbow had sexual contact with R.A., that he had a
significant relationship with her, and that she was under 16 years of age. Minn. Stat.
§ 609.343, subd. 1(g) (2012). Sexual contact means intentional touching of R.A.’s intimate
parts or clothing covering the immediate area of her intimate parts. Id.

1 On appeal, Garbow appropriately makes his sufficiency-of-the-evidence argument within
the standard of review for direct evidence. We agree and apply that standard to our review.
7
R.A.’s testimony established the sexual contact and age elements. She testified that
Garbow came into the bedroom, went to the top bunk bed where R.A. was sleeping, and
touched her vagina over her clothing. R.A. testified that this abuse occurred more than
once on different nights when she was 11 years old. The trial evidence also established the
statutory “significant relationship” element because testimony established that Garbow
was R.A.’s uncle. Viewing this evidence in the light most favorable to the verdict, the
evidence permitted the jury to reach the verdict it did. Moore, 10 N.W.3d at 682.
Garbow contends that we should reject the verdict because R.A.’s testimony
conflicted with her interviews and was not corroborated by any other evidence. Garbow
relies upon testimony obtained during R.A.’s cross-examination at which defense counsel
impeached R.A.’s trial testimony with inconsistencies from statements made during her
forensic interviews. But when a witness makes conflicting statements, it is the exclusive
function of the jury to weigh the credibility of that witness. State v. Gilleylen, 993 N.W.2d
266, 275 (Minn. 2023 ). The jury rejected Garbow’s trial strategy that R.A. was not
believable given the conflicting statements from her trial testimony and her interviews.
In addition, R.A.’s testimony, alone, sufficiently supports the jury’s verdict. T he
legislature has rejected the proposition that the state must corroborate the testimony of a
victim of sexual assault. See Minn. Stat. § 609.347, subd. 1 (2024) (providing that “the
testimony of a victim need not be corroborated” in a prosecution for a criminal sexual
conduct crime). See also State v. Foreman , 680 N.W.2d 536, 539 (Minn. 2004) (“A
conviction can rest on the uncorroborated testimony of a single credible witness.”).
8
Even though corroboration was not required, portions of R.A.’s trial testimony
about the abuse was corroborated by statements made during her two forensic interviews:
• R.A. lived in her grandparents’ home, where the assault took place;
• Garbow, R.A.’s uncle, also lived in the house;
• R.A. was 11 years old;
• R.A. was on the top bunk bed;
• R.A. was sleeping;
• Garbow touched R.A.’s intimate area while she was on the top bunk;
• R.A. pretended to sleep; and
• R.A. tried to roll over towards the wall.
These corroborated facts further support the jury’s reasonable conclusion that Garbow had
sexual contact with R.A., the act was committed with sexual intent, R.A. was under the age
of 16, and Garbow had a significant relationship with R.A. Minn. Stat. § 609.343,
subd. 1(g); see also King, 990 N.W.2d at 416. Garbow has not met his heavy burden to
overturn the jury’s verdict.
II. Garbow is not entitled to a new trial on the first-degree criminal sexual conduct
conviction.

Garbow raises two separate arguments to contend that he is entitled to a new trial.
First, Garbow argues that the district court violated his constitutional rights under the
Confrontation Clause when his cross-examination of N.A. was cut short. Second, Garbow
demands a new trial due to alleged prosecutorial misconduct that occurred during the
state’s rebuttal closing argument. We address each argument in turn.
9
A. Any violation of Garbow’s rights under the Confrontation Clause was
harmless beyond a reasonable doubt.

Garbow argues that the district court should have granted his motion for a new trial
because his constitutional rights under the Confrontation Clause were violated when the
court found N.A. unavailable during cross examination and excused her from further
testimony. Whether a defendant’s Confrontation Clause rights were violated is a question
of law that we review de novo. State v. Sutter, 959 N.W.2d 760, 765 (Minn. 2021).
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.] ” U.S. Const. amend. VI; see also Minn.
Const. art. I, § 6 (“The accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]”); State v. Holliday, 745 N.W.2d 556, 564 (Minn. 2008) (applying same
analysis under both the Minnesota and federal Confrontation Clauses). The Confrontation
Clause “guarantees the defendant a face-to -face meeting with witnesses appearing before
the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988). The “central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding
before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990).
“The constitutional right of confrontation guarantees only an opportunity for cross-
examination, not cross -examination that is effective in whatever way, and to whatever
extent, that defense might wish.” State v. Evans, 756 N.W.2d 854, 874 (Minn. 2008)
(quotations omitted); see also State v. Holliday, 745 N.W.2d at 566 (providing that the
10
Confrontation Clause only guarantees an opportunity for effective cross-examination, not
unlimited cross-examination). The Confrontation Clause is not violated when
cross-examination is limited “so long as the jury is presented with sufficient information
from which to appropriately draw inferences as to the witness’s reliability.” Gilleylen,
993 N.W.2d at 278 (quotations omitted).
The United States Supreme Court has also recognized that a defendant’s right to
confront an accusing witness “must occasionally give way to considerations of public
policy and the necessities of the case.” Craig, 497 U.S. at 849 (quotation omitted).
Protection of child-witnesses from trauma is one of these important public policy
considerations. See id. at 855 (“we hold that, if the S tate makes an adequate showing of
necessity, the state interest in protecting child witnesses from the trauma of testifying in a
child abuse case is sufficiently important to justify the use of a special procedure that
permits a child witness in such cases to testify at trial against a defendant in the absence of
face-to-face confrontation with the defendant.”). See also Coy, 487 U.S. at 1025
(O’Connor, J., concurring) (“The protection of child witnesses is, in my view and in the
view of a substantial majority of the States, just such [an important public] policy.”). The
Supreme Court has further recognized an exception to the Confrontation Clause that allows
the “admissibility of an absent witness’s examination on unavailability and a prior
opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 54 (2004).
Garbow argues his constitutional right to a face-to-face confrontation with his
accuser was violated because N.A. did not complete her cross-examination testimony.
Garbow argues that the district court erred in finding N.A. unavailable and violated his
11
confrontation rights because Garbow was not able to fully cross-examine N.A. This issue
presents unique circumstances that have not been addressed in Minnesota.
We need not, however, decide whether this unique set of circumstances violated the
Confrontation Clause because we conclude that any violation of Garbow’s constitutional
rights was harmless beyond a reasonable doubt. State v. Caulfield, 722 N.W.2d 304, 314
(Minn. 2006) (providing that a violation of the Confrontation Clause is subject to the
constitutional harmless-error analysis). An error is harmless beyond a reasonable doubt if
the jury’s decision is “surely unattributable” to the error. Id.
In analyzing harmless error when a defendant’s ability to cross-examine a witness
was impermissibly restricted, we must “assume that the damaging potential of the cross-
examination [was] fully realized.” State v. Zielinski, 10 N.W.3d 1, 16 (2024) (quotation
omitted). We also consider several factors, “including: [1] ‘the importance of the witness’
testimony in the prosecution’s case, [2] whether the testimony was cumulative, [3] the
presence or absence of evidence corroborating or contradicting the testimony of the witness
on material points, [4] the extent of cross-examination otherwise permitted, and, of course,
[5] the overall strength of the prosecution’s case.’” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). We address each factor in turn.
Factor 1: The importance of N.A.’s testimony to the prosecution’s case.
The first factor favors a determination that any violation was not harmless. There
can be no dispute about the importance of N.A.’s testimony to the prosecution’s case. N.A.
was the sole witness who could testify about the abuse she endured. This factor weighs in
favor of a determination that any violation was not harmless.
12
Factors 2 and 3: [2] Whether the testimony was cumulative, and [3] The
presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points.

The second and third factors both favor a determination that any violation was
harmless beyond a reasonable doubt. The record reveals that further cross-examination
would have been cumulative of the evidence received, the trial contained evidence
contradicting N.A. on material points, and the cross-examination that did occur allowed
the jury to assess N.A.’s demeanor and credibility.
The essence of defense counsel’s strategy of cross-examining N.A. was to
demonstrate that her trial testimony was not consistent with the statements that she had
made during her forensic interview.2 In the cross-examination that Garbow did complete,
defense counsel covered four different topics in an attempt to show the jury that her trial
testimony was inconsistent with her forensic interview. Defense counsel questioned N.A.
about the inconsistencies regarding her age, video games that Garbow allowed her to play
after the abuse, how much of N.A.’s clothing was removed during the abuse, and Garbow
forcing N.A. to perform oral sex. Defense counsel asked:
[N.A.’s age] Q. . . . So my question to you is: Why could you
remember, then, how old you were, but you couldn’t remember
now?

. . . .

Q. . . . So you have no reason why your memory has changed?

. . . .

2 Defense counsel employed the same strategy during the cross-examination of R.A. When
cross-examining R.A., defense counsel emphasized the inconsistencies between R.A.’s
trial testimony and her forensic interview.
13
[video games] Q. . . . So why are you saying that to the
prosecutor’s office? That he let you play video games as a
reward, but you never told that to [the forensic interviewer]?

. . . .

[clothing] Q. But you said it was the same thing basically
every single time, and it happened multiple times. So how is
leaving your clothes on in one version and taking your clothes
completely off in a different version —how is that a small
detail?

. . . .

[forced oral sex] Q. Not touching him anywhere on his body
and having someone’s penis in your mouth are two different
things, right?

A. Yes.

Q. They are?

A. Yes.

Q. Do you agree with that? So in one version—the version
with [the forensic interviewer] or your trial version —one
version is untrue. Which version is untrue? The trial version
about that he did make you do this, or the version to [the
forensic interviewer] that he didn’t make you do this?

A. The version of [the forensic interviewer].

Q. Why did you say something to [the forensic interviewer]
that was untrue?

A. I thought I told her.

Q. You saw it in there. You didn’t. Do you think that’s a big
detail or a small detail that he made you do that?

A. A small detail.

14
Q. It’s a small detail about the—about that? Did you just
overlook it? Were you wrong? Help me out here. I’m trying
to figure it out. Do you need a break?

A. (Witness nods head.)3

To remedy defense counsel’s inability to complete the cross-examination, t he
district court admitted evidence contradicting N.A. on material points for the jury’s
consideration of impeachment purposes: the video of the forensic interview. 4 The
impeachment evidence allowed defense counsel to make all the arguments that he intended
to elicit through cross-examination of N.A. The district court also allowed defense counsel
to reference N.A.’s absence from the trial during his closing argument.
During closing argument, defense counsel extensively argued about the
inconsistencies between N.A.’s testimony and her forensic interview, which included
inconsistencies that had not been addressed in cross-examination. Defense counsel also
liberally refenced N.A.’s absence during closing, characterizing her unavailability as
“hiding” and “running away.” Although Garbow was unable to complete the cross-

3 This is the moment in questioning that the cross-examination of N.A. ended. The district
court later found N.A. unavailable, after which defense counsel made the strategic decision
to move for judgment of acquittal, which the district court denied. Defense counsel did not
move for a continuance of the trial or request a mistrial, which would have been possible
appropriate remedies after the court found N.A. unavailable. Instead, defense counsel used
the forensic interview and N.A.’s absence to Garbow’s advantage and later moved for a
new trial—effectively requesting a mistrial— after receiving the guilty verdict. We are
concerned by these “wait-and-see” tactics that could be read as invited error, but we do not
weigh defense counsel’s strategic decisions in our analysis.

4 The district court instructed the jury that the videos could not be used as substantive
evidence. Appellate courts “assume that the jury followed the court’s instructions and
properly considered the evidence.” State v. Vang, 774 N.W.2d 566, 578 (Minn. 2009).
15
examination, defense counsel’s closing argument told the jury the reasons to discredit
N.A.’s testimony. As the district court determined in the order denying a new trial, Garbow
“was given an opportunity for effective cross -examination that allowed him to call the
jury’s attention to reasons to give ‘scant weight’ to N.A.’s testimony, including her bias,
poor memory[,] and lack of consistency.” Thus, additional cross-examination would have
been “cumulative” of the impeachment evidence already received. See Zielinski,
10 N.W.3d at 16 (“we conclude that the damaging potential of this cross-examination
would not have been any greater because the information would have been cumulative.”).
Factor 4: The extent of cross-examination otherwise permitted.
The fourth factor also favors a determination that any violation was harmless
beyond a reasonable doubt. Id. In these unique circumstances, N.A. was subjected to face-
to-face confrontation during which the jury was able to assess her demeanor and determine
whether she was worthy of belief. And the record indicates that N.A.’s cross-examination
took more time than the state’s direct-examination.
During cross-examination, defense counsel highlighted discrepancies in N.A.’s trial
testimony as compared to her forensic interview. The cross-examination called the jury’s
attention to N.A.’s bias, poor memory, and lack of consistency in her testimony, including
her age, clothing, and whether she was forced to perform oral sex.
At least while N.A. was on the stand, the “central concern” of the Confrontation
Clause was, in fact, satisfied. See Craig, 497 U.S. at 845 (noting “the central concern” of
the Confrontation Clause is to compel the accuser “to stand face to face with the jury in
order that they may look at him, and judge by his demeanor upon the stand and [in ] the
16
manner in which he gives his testimony whether he is worthy of belief”). As the district
court’s order denying a new trial noted, “[t]he jury was able to observe N.A.’s demeanor
on the stand and her reaction to questions.” Thus, the extent of the cross-examination that
occured favors a determination that any violation was harmless beyond a reasonable doubt.
Factor 5: The overall strength of the prosecution’s case.
The overall strength of the state’s case also slightly favors a determination that any
violation was harmless beyond a reasonable doubt. Zielinski, 10 N.W.3d at 15. The
prosecution’s case largely rested upon the testimony of N.A. N.A.’s testimony established
the elements of the offense. Defense counsel’s cross-examination, use of the forensic
interview, and closing argument effectively questioned N.A.’s credibility. Although the
jury did not see a full cross-examination, they were able to assess her demeanor and
credibility for a period of time while she was on the stand. In addition, some of N.A.’s
testimony was corroborated, in part, by the testimony of her mother, investigating officer,
forensic interviewer, and her sister. Thus, the prosecution’s case was strong, but the factor
only slightly favors a harmless error determination given the jury’s inability to view a full
cross-examination. Nonetheless, our thorough review of the record and analysis of the
factors leads us to the conclusion that the jury’s verdict was “surely unattributable” to any
violation of Garbow’s rights under the Confrontation Clause. State v. Trifiletti, 6 N.W.3d
79, 95 (Minn. 2024); Zielinski, 10 N.W.3d at 15 (2024) (articulating harmless error factors).
Recognizing that there are no Minnesota cases on point, Garbow cites a decision
from the Kansas Supreme Court addressing the circumstances of a juvenile witness that
was unable to complete their testimony during a preliminary hearing. See State v. Noah,
17
162 P.3d 799, 801 (Kan. 2007). The Kansas high court concluded that the admission of
the juvenile’s statements to others violated the Confrontation Clause, which was not
harmless beyond a reasonable doubt. Id. at 804-06. Noah is distinguishable.
In Noah, an 11-year -old witness began crying during cross -examination at a
preliminary hearing, the witness could not continue, and the cross-examination ended
prematurely. Id. at 801. After finding the child could not continue the testimony, the
district court found the child unavailable. Id. At trial, the court allowed the child’s
statements to three other individuals to be admitted as evidence. Id.
The Kansas Supreme Court concluded that the defendant did not have a sufficient
opportunity to effectively cross-examine the witness at the preliminary hearing. Id. at 805.
The supreme court concluded the Confrontation Clause violation was not harmless beyond
a reasonable doubt because the statements were critical to the prosecution’s case, were not
cumulative, and the “only opportunity for contradicting [the child’s] statements came from
his testimony and his brief opportunity to cross-examine [the child ] at the preliminary
hearing before she became emotionally distraught and could not continue.” Id.
In Noah, the child did not testify at trial and the jury never had an opportunity to
assess the child’s demeanor or credibility because the district court admitted statements the
juvenile made to other individuals. Id. Here, however, the jury observed N.A.’s trial
testimony—during which she recounted the abuse and penetration — and the jury had the
opportunity to assess her demeanor and credibility, including during her partial
cross-examination. The jury also assessed the contradicting statements of N.A. both during
her cross-examination and when the jury viewed the video from the forensic interview that
18
was admitted solely for impeachment purposes. Defense counsel used this evidence to
argue that the jury should reject N.A.’s testimony. Additional cross-examination would
have been cumulative of the arguments defense counsel was able to make based upon the
partial cross-examination and the forensic interview video.
We share, however, many of the concerns articulated by the Kansas Supreme Court:
[W]e do not grant attorneys license to filibuster, purposely
confuse, or harass children or other vulnerable witnesses in an
attempt to make an otherwise competent witness unavailable.
Nor do we want to give incentive for those same witnesses to
be relieved of their obligation to be made ‘available’ by
answering only a few questions on cross-examination because
it is uncomfortable or intimidating, and thereby defeating a
defendant’s right to confrontation.

Id. Our review of this record does not demonstrate that defense counsel purposefully
attempted to make N.A. unavailable.
5 The record also does not establish that N.A. made
herself unavailable due to merely being uncomfortable or intimidated.6 Nonetheless, these
valid concerns exist and, in a different case may require a different result. But given the
unique circumstances of this case, we conclude that any violation of Garbow’s
constitutional rights was harmless beyond a reasonable doubt.

5 But, as the district court noted, “the record supports that the victim was fearful and
vulnerable, and the record supports that Defendant’s cross-examination technique likely
exacerbated those issues[.]”

6 Garbow neither contested the legitimacy of the doctor’s letter noting the impact the
testimony had on N.A.’s health, nor factually disputed N.A.’s unavailability following
N.A.’s mental health episode that required an ambulance and treatment at the hospital.
19
B. The prosecutor’s statement during the state’s rebuttal closing argument
did not constitute misconduct and did not affect the verdict.

Garbow next argues that he is entitled to a new trial due to misconduct occurring
during the state’s rebuttal argument that disparaged the defense and inflamed the jury’s
passions and prejudices. We disagree.
Prosecutorial misconduct “results from violations of clear or established standards
of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state’s
case law.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). In closing arguments, the
state has “the right to present to the jury all legitimate arguments on the evidence, to
analyze and explain the evidence, and to present all proper inferences to be drawn
therefrom.” State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). In analyzing a
prosecutor’s closing arguments, we review the arguments “as a whole, rather than just
selective phrases or remarks that may be taken out of context or given undue prominence.”
State v. Carridine, 812 N.W.2d 130, 148 (Minn. 2012) (quotation omitted).
Garbow argues the prosecutor committed misconduct during the state’s rebuttal
closing argument:
PROSECUTOR: It happened multiple times. And you saw
how the girls responded, and [defense counsel] talks a lot about
that. You saw [N.A.] break after being repeatedly called a liar
by an adult. It doesn’t mean she’s lying.

DEFENSE COUNSEL: Hmm? What? I would object to that
characterization.

COURT: Okay. Noted.

PROSECUTOR: After being, as [defense counsel] put it,
confronted with things she said that were inconsistent that were
20
lies. That is not something that is easy for a grown adult to
handle, and this is a child that was traumatized. And [R.A.]
responded, just not in the same way. She didn’t know what to
say because of that trauma.

Garbow argues that these statements inflamed the passion and prejudices of the jury
because the jurors became aware that N.A. suffered a panic attack. We disagree.
At no point during the state’s rebuttal argument did the prosecutor discuss the nature
or extent of N.A.’s medical issues that occurred during cross-examination. Garbow points
to the statement that the jury saw N.A. “break[,]” but that brief statement was a fair
inference and legitimate argument from the trial proceedings. During cross-examination,
defense counsel saw that N.A. was visibly distraught and asked if she needed a break. N.A.
nodded in the affirmative and the district court took a recess.
In addition, the prosecutor’s argument fairly rebutted defense counsel’s closing
argument. Consistent with the defense theme, defense counsel’s closing argument
attempted to demonstrate that N.A. and R.A.’s allegations were false. This theme started
during opening statements, continued throughout the trial, and culminated during closing
argument. D efense counsel’s closing argument also repeatedly characterized N.A.’s
inability to finish her cross-examination testimony as her running away and hiding.
Because the state’s argument fairly rebutted defense counsel’s closing argument, Garbow
has failed to establish that this statement constituted misconduct.
Garbow also failed to establish that any misconduct “likely played a substantial part
in influencing the jury to convict.” State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010)
(noting harmless error standard for objected-to, but less-serious, allegations of
21
prosecutorial misconduct). The prosecutor’s two-sentence statement did not disparage the
defense or inflame the jury’s passions. Any possible prejudice was minimized by the
prosecutor’s own recharacterization of the rebuttal closing argument—to closely track
defense counsel’s closing argument—immediately after defense counsel’s objection.
Plus, the district court instructed the jury to “disregard” any statements made by
counsel that “differs” from the jury’s independent recollection of the evidence. We assume
the jury followed the court’s instructions. See Vang, 774 N.W.2d at 578 (“We assume that
the jury followed the court’s instructions.”). Any possible prejudice from the prosecutor’s
brief statements was minimal such that Garbow is not entitled to a new trial based upon
alleged prosecutorial misconduct.
III. The district court did not err in sentencing Garbow to a lifetime conditional -
release term , but we remand for the district court to recalculate Garbow’s
criminal-history score.

Garbow raises two issues with regard to his release conditions and prison sentences.
First, Garbow contends that the district court erred in imposing a lifetime conditional-
release term. Second, Garbow argues that the district court erred in calculating his
criminal-history score. We take each argument in turn.
A. The court did not err in imposing a lifetime conditional-release term.

Garbow argues that the district court erred when it imposed a lifetime
conditional-release term. Garbow contends that the district court simultaneously convicted
Garbow of both counts and, therefore, the court could not impose a lifetime conditional-
release term because he did not have “a previous or prior sex offense conviction.” See
Minn. Stat. § 609.3455, subd. 7(b) (2024). We disagree.
22
Whether a sentence conforms to the requirements of a statute or the sentencing
guidelines is a question of law reviewed de novo. State v. Williams, 771 N.W.2d 514, 520
(Minn. 2009). A person convicted of second- degree criminal sexual conduct is subject to
a ten-year conditional-release term. Minn. Stat. § 609.3455, subd. 6 (2024). If an offender
has a prior sex-offense conviction, the district court must impose a lifetime conditional-
release term. Minn. Stat. § 609.3455, subd. 7(b).
A prior sex-offense conviction includes “a conviction for a separate behavioral
incident entered before a second conviction, whether at different hearings or during the
same hearing.” State v. Nodes, 863 N.W.2d 77, 82 (Minn. 2015). But w hen multiple
criminal sexual conduct convictions are entered simultaneously, one conviction cannot
serve as a prior sex-offense conviction for the other. Id.
In support of his argument that the convictions were entered simultaneously,
Garbow cites the district court receiving the verdicts from the jury, which the court did
simultaneously. But a district court receiving a verdict from the jury is not the same as the
court formally accepting and recording the guilty verdict. See State v. Hoelzel, 639 N.W.2d
605, 609 (Minn. 2002). A district court records a guilty verdict “when [the] court
adjudicates [the] defendant guilty on the record.” Nodes, 863 N.W.2d at 81.
The district court here did not convict Garbow by receiving the verdicts from the
jury. Instead, the district court adjudicated Garbow on the record at the sentencing hearing.
And the record at sentencing clearly reflects that the district court adjudicated and
sentenced Garbow sequentially. The relevant transcript reads:
23
COURT: [O]n the jury’s verdict of guilty on Count 1, criminal
sexual conduct, first degree, penetration with a victim under
16, and a significant relationship with multiple acts over time,
you’re adjudicated guilty of that count. As a consequence, I’ll
sentence you to 201 months in the custody of the
Commissioner of corrections.

After the district court entered this conviction, the defense and court engaged in an
exchange clarifying jail credit time. The district court then imposed the ten-year
conditional-release period. The sentencing transcript continues:
COURT: On the jury’s verdict of guilty, and the Court had
accepted those verdicts previously, you’re adjudicated guilty
of Count 4. That’s criminal sexual conduct in the second
degree . . . I’ll sentence you to 142 months in the custody of
the Commissioner of Corrections . . . [B]ecause of the prior
conviction it’s a lifetime conditional release.

The sentencing record demonstrates that the district court appropriately adjudicated
Garbow guilty on one count, entered the disposition, and imposed a ten-year conditional-
release term. Then, after a temporal gap, the court separately adjudicated Garbow guilty
on a second count, entered the disposition, and imposed the lifetime conditional-release
term. The district court did not err in imposing a lifetime conditional-release term.
B. We remand for the district court to calculate the criminal-history score.

Garbow challenges the district court’s calculation of his criminal- history score,
arguing that three of his prior felony offenses were from a single course of conduct . As
such, Garbow contends that only the offense with the highest severity level should have
been included in his criminal-history score. Questions on the calculation under the
Minnesota Sentencing Guidelines of a criminal-history score presents a question of law
that appellate courts review de novo. State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
24
Garbow was assigned a half point each for three convictions for criminal damage to
property which arose from the same course of conduct, totaling one-and-a-half points.
Garbow did not object to the calculation prior to the sentencing hearing. Because Garbow
did not object, the state had no notice that it needed to establish that each offense was
properly included in his criminal-history score. Both parties agree this issue must be
remanded to the district court to determine the correct criminal-history score. Because the
state did not establish that each of the three offenses should receive points, we also agree.
When, as here, a defendant failed to object to the criminal-history score calculation
and the presenting invcestigation report was insufficient to prove the criminal-history
score, the proper remedy is to remand the matter for an opportunity for the state to “further
develop the sentencing record so that the district court can appropriately make its
determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), rev. denied
(Minn. July 15, 2008); see also State v. Gant , 996 N.W.2d 1, 10 n.4 (Minn. App. 2023)
(remanding for further proceedings to determine the defendant’s criminal-history score).
We, therefore, remand the case to the district court for further proceedings to determine the
proper criminal-history score. The court may, within its discretion, allow the state to
supplement the sentencing record.
Affirmed in part, reversed in part, and remanded.

D-1
BENTLEY, Judge (concurring in part, dissenting in part)
I agree with the opinion of the court in affirming appellant Andy Ralph Garbow’s
conviction for second-degree criminal sexual conduct, count IV, because the evidence was
sufficient to prove his guilt beyond a reasonable doubt with respect to his conduct toward
R.A. I therefore join section I of the opinion of the court, and I also join section III(B),
which remands for a proper determination of Garbow’s criminal-history score. I disagree,
however, with respect to Garbow’s right to confront N.A. and the court’s decision to affirm
his conviction on count I. It is my view that Garbow’s confrontation rights were violated
and that the violation was not harmless beyond a reasonable doubt. I therefore respectfully
dissent from section II(A) of the opinion of the court. I would reverse Garbow’s conviction
for first-degree criminal sexual conduct and remand for a new trial on counts I through III,
and I would not reach the issues in sections II(B) and III(A) of the opinion of the court.
I
The opinion of the court assumes without deciding that the district court violated
Garbow’s right to confrontation when it allowed N.A.’s direct testimony to come into
evidence even though it had determined that N.A. was unavailable to appear for a full cross-
examination. Because I disagree with the opinion of the court’s harmless-error conclusion,
I would reach this issue and conclude that Garbow’s right to confrontation was violated.
Both the Minnesota and U.S. Constitutions guarantee that criminal defendants “shall
enjoy the
right . . . to be confronted with the witnesses against [them].” Minn. Const. art. I,
D-2
§ 6; accord U.S. Const. amend. VI. 1 This confrontation right is a “ bedrock procedural
guarantee,” with roots in “[t]he common-law tradition . . . of live testimony in court subject
to adversarial testing.” Crawford v. Washington, 541 U.S. 36, 42-43 (2004). That
adversarial testing requires a “full and fair opportunity to probe and expose . . . infirmities
through cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 22 (1985). “Effective
cross-examination is essential to a fair trial because ‘[c]ross-examination is the principal
means by which the believability of a witness and the truth of [their] testimony are tested.’”
State v. Ferguson, 742 N.W.2d 651, 656 (Minn. 2007) (quoting Davis v. Alaska, 415 U.S.
308, 316 (1974)). Absent a full and fair opportunity to cross-examine a witness in court,
testimonial evidence may be admitted only “where the declarant is unavailable, and only

1 Garbow invokes his confrontation rights under both the Minnesota Constitution and the
U.S. Constitution, but he addresses them simultaneously in light of caselaw stating that
courts “apply the same analysis under both Confrontation Clauses.” State v. Holliday, 745
N.W.2d 556, 564 (Minn. 2008); see also, e.g., State v. Henderson, 620 N.W.2d 688, 695
(Minn. 2001) (stating that both constitutions “afford[] the same fundamental right, and the
analysis is the same under both provisions”). The source of this single-analysis approach
can be traced back to two Minnesota Supreme Court cases. The first, State v. Black, states:
“The right of confrontation is a fundamental right under both constitutions.” 291 N.W.2d
208, 213 (Minn. 1980). Black cites the second, State v. Shotley, 233 N.W.2d 755 (Minn.
1975), to support that proposition. See Black , 291 N.W.2d at 213. Shotley states: “The
Minnesota Constitution, art. 1, § 6, provides that in all criminal prosecutions the accused
shall enjoy the right to be confronted with the witnesses against him. Corresponding
provisions of the Federal Constitution apply to criminal prosecutions in state courts.” 233
N.W.2d at 758. Neither case states that the analysis under the two constitutions is the same,
and neither forecloses a determination that the confrontation right under the Minnesota
Constitution might be different in some circumstances from the right under the U.S.
Constitution. Further exploration of the extent of the state constitutional right may be
warranted. Nevertheless, because the parties do not argue that the nature of the rights are
different, I also analyze the rights under both constitutions simultaneously.
D-3
where the defendant has had a prior opportunity to cross-examine.” Crawford, 541 U.S.
at 59 (emphasis added).
The right to confront is not absolute. District courts may limit the scope of cross-
examination “[b]ased on concerns about such things as harassment, decision making on an
improper basis, confusion of the issues, and cross-examination that is repetitive or only
marginally relevant,” provided that “the jury is presented with sufficient information from
which to appropriately draw inferences as to the witness’ s reliability.” State v. Glover,
4 N.W.3d 124, 136 (Minn. 2024). But, “[w]hile the scope of cross-examination is left
largely to the district court’s discretion, the availability of it is not.” State v. Schloegl, 915
N.W.2d 14, 19 (Minn. App. 2018); see Chambers v. Mississippi, 410 U.S. 284, 295 (1973)
(“[T]he right to confront and to cross-examine . . . may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process. But its denial or
significant diminution calls into question the ultimate integrity of the fact-finding process
and requires that the competing interest be closely examined.” (quotation omitted) (citation
omitted)). Here, the district court did not limit the scope of a cross-examination of a present
witness—it denied, or at least significantly diminished, the cross-examination of a witness
who was declared unavailable. The district court acknowledged on the record that
Garbow’s confrontation of N.A. was only “partially accomplished” and that cross-
examination was “most certainly[] not completely finished or else [N.A.] wouldn’t have
run out, and [the district court] wouldn’t have asked her to come back.” The district court
also noted how the cross-examination “got to a point where some of the harder questions
D-4
were being asked, or maybe the hardest question, . . . [a]nd that’s where the proceeding got
hung up.”
At a point like this, when a witness becomes unavailable, several possible options
to address the situation are available and consistent with the fundamental principle that
testimonial evidence by an unavailable declarant, i.e., N.A.’s direct testimony, may be
admitted only “where the defendant has had a prior opportunity to cross-examine.”
Crawford, 541 U.S. at 59. A district court could continue the trial until the witness is
medically cleared and then consider ways to accommodate her appearance; 2 it could

2 Garbow did not move for a continuance, but he did dispute the district court’s
determination that N.A. was unavailable. And the record shows that a continuance motion
likely would have been futile. The district court explained in its posttrial order denying
Garbow’s motion for judgment of acquittal or for a new trial that it did not view a
continuance as a reasonable option. It said:

Continuing the trial to allow N.A. to complete her testimony
would have required continuing the case by over a week. While
a continuance of a week prior to the start of a trial may not be
substantially unreasonable, to continue the trial after the jury
was impaneled and evidence had been presented would not
have been feasible or reasonable. It also would have relied on
there being some substantial change to N.A.’s health that
would have allowed her to testify. It is possible that had a
continuance been ordered, N.A. may have remained
unavailable or would become unavailable when subjected
further to the cross-examination that prompted her
unavailability.

D-5
declare a mistrial;3 or it could strike the direct testimony.4
Here, the district court employed an alternative to the right to confrontation when it
decided to allow N.A.’s direct examination to stand and to instruct the jury that N.A.’s
forensic interview—that the jury had already watched without any limiting instructions—
could be considered for impeachment purposes only, not as substantive evidence. 5 The
district court did so to prevent the state from “gain[ing] any benefit” from the witness’s
unavailability and characterized the remedy as a “penalty for [N.A.’s] inability to finish
cross-examination.” That limitation on the state’s ability to use N.A.’s forensic interview

3 Garbow did not move for a mistrial during trial, but nothing prevented the district court
from declaring a mistrial sua sponte. See State v. Lerma, 25 N.W.3d 40, 44-46 (Minn. 2025)
(noting that the district court declared a mistrial sua sponte and holding that the effect of
the mistrial for double-jeopardy purposes depended on whether the defendant objected to
the mistrial and, if the defendant had objected, on whether the manifest-necessity exception
to double jeopardy attachment applied); see also 1 Charles T. McCormick, McCormick on
Evidence § 19 (Kenneth S. Broun, et al. eds., 9th ed. 2025) (“The temporary disability of a
crucial witness can be sufficient justification for a mistrial declaration, permitting a later
retrial.”).

4 See McCormick, supra, § 19 (noting that, when a witness has “become, or purport[ed] to
become, sick or otherwise physically or mentally incapacitated[] before cross-examination
is begun or completed . . . courts often strike the [witness’s] direct examination”); see also,
e.g., United States v. Stalnaker, 571 F.3d 428, 434 (5th Cir. 2009) (striking direct testimony
of witness who suffered a panic attack during direct examination and could not sit for a
cross-examination).

5 The district court initially admitted the forensic interview in evidence as a prior consistent
statement, and the video of N.A.’s interview was played to the jury without any limiting
instructions. After the state and defense rested the next day, the district court instructed the
jury that the interview “is not substantive evidence” and “can be used . . . for only one
purpose, to test the credibility of the trial testimony [N.A.] provided on the witness stand.”
The district court continued, “Put simply, you may only use the recording of [N.A.] to
determine whether she testified honestly or dishonestly at th e trial here in the courtroom,
not to determine whether the statements she made are accurate accounts of what the State
alleges happened.”
D-6
as substantive evidence, while leaving her direct testimony intact, was no substitute for the
“[f]ace-to-face confrontation [that] is ‘the core of the values furthered by the Confrontation
Clause.’” State v. Conklin, 444 N.W.2d 268, 272 (Minn. 1989) (quoting Coy v. Iowa, 487
U.S. 1012, 1017 (1988)); see also Coy, 487 U.S. at 1017 (“[T]here is something deep in
human nature that regards face-to-face confrontation between accused and accuser as
essential to a fair trial in a criminal prosecution.” (quotation omitted)).
To be sure, the district court faced a challenging situation. A 16-year-old witness,
who was an alleged victim of sexual abuse had left the stand and experienced a medical
emergency. We have instructed courts to take steps to protect child-witnesses from trauma,
which may, at times, mean that aspects of the confrontation right must give way to
accommodate a witness’s testimony at trial. See, e.g., In re Welfare of E.J.C.L., ___
N.W.3d ___, ___, 2025 WL 3264104, at *4 (Minn. App. Nov. 24, 2025) (noting that “the
confrontation clause must occasionally give way to considerations of public policy and the
necessities of the case,” such as the “[p]rotection of child-witnesses from trauma” (quoting
Maryland v. Craig, 497 U.S. 836, 849 (1990)). And yet, no precedent supports the district
court’s decision here to admit a witness’s direct testimony into evidence, forgo a full and
fair cross-examination of the witness, and remedy the confrontation problem by instructing
the jury t o consider other out-of-court testimonial statements for impeachment purposes
only. To the contrary, in a related context, the United States Supreme Court has held that
“we cannot accept limiting instructions as an adequate substitute for [a defendant’s]
constitutional right of cross-examination.” Bruton v. United States, 391 U.S. 123, 137
(1968) (rejecting the argument that “clear instructions to the jury to disregard” evidence
D-7
admitted in violation of the confrontation clause could substitute for the right to
confrontation).
The district court deprived Garbow of a “full and fair opportunity” to confront the
witness against him. Fensterer, 474 U.S. at 22. His constitutional rights were, therefore,
violated.
II
It is well-settled that Confrontation Clause violations are subject to a harmless-error
analysis and that we must reverse if the violation was not harmless beyond a reasonable
doubt. See State v. Courtney, 696 N.W.2d 73 , 79 (Minn. 2005); Chapman v. California, 386 U.S. 18, 24 (1967). A reviewing court’s analysis begins by “assuming that the
damaging potential of the cross-examination were fully realized.” Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). Then, in considering whether the denial of the cross-
examination was harmless, we balance “a host of factors,” including: “[1] the importance
of the witness’s testimony in the prosecution’s case, [2] whether the testimony was
cumulative, [3] the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, [4] the extent of cross-examination otherwise
permitted, and, of course, [5] the overall strength of the prosecution’s case.” Van Arsdall,
475 U.S. at 684; see also Schloegl, 915 N.W.2d at 20 (applying the Van Arsdall factors).
I begin, as we must, by “assuming that the damaging potential of the cross-
examination were fully realized.” Van Arsdall, 475 U.S. at 684. In a case involving the
unconstitutional admission of direct testimony of a witness not subject to cross-
examination, this court explained, “ By assuming that the full potential of cross-
D-8
examination would have been realized, we must infer that [the witness’s] credibility would
have been impeached and that the jury would have developed reasonable doubts about the
most relevant particulars in her version of events.” Schloegl, 915 N.W.2d at 20. The same
reasoning applies here. Even though there was a partial cross-examination in this case,
making it a closer call than Schloegl, the record reveals a reasonable possibility that, had
N.A. been subject to a full and fair cross-examination, her cre dibility would have been
impeached and the jury would have developed reasonable doubts about her version of
events. The district court acknowledged that the cross-examination was only “partially
accomplished” and “most certainly, not completely finished,” and that the cross-
examination stopped when “some of the harder questions were being asked, or maybe the
hardest question.” The jury did not have a full opportunity to observe N.A.’s response to
those difficult questions and “judge by [her] demeanor upon the stand and the manner in
which [she] gives [her] testimony whether [she] is worthy of belief.” Craig, 497 U.S. at
845. Moreover, Garbow’s counsel identified the other topics about which he intended to
ask the witness, stating, “I basically was just starting my cross-examination, and she’s
gone.” And even the district court acknowledged on the record that it was hard to estimate
how much more time would have been needed for the cross-examination because “the next
question could have opened Pandora’s box to another hour of cross-exam.” On this record,
there is at least a reasonable possibility that further questioning could have affected the
jury’s perception of the N.A.’s credibility. I therefore consider the factors relevant to our
harmless-beyond-a-reasonable-doubt analysis under the assumption that the damaging
D-9
potential of a full and fair cross-examination would have been realized and N.A.’s
credibility would have been impeached.
As to the first factor, the importance of the testimony to the state’s case, N.A.’s
testimony was critical. Her words were the only direct evidence supporting material
elements of Garbow’s first-degree criminal sexual conduct convictions. No physical
evidence was introduced, and the district court had directed the jury not to consider N.A.’s
forensic interview as substantive evidence. In closing arguments, the state relied solely on
N.A.’s direct testimony to establish that it met its burden to prove the elements of the first-
degree criminal sexual conduct charges. In other words, to find Garbow guilty of the counts
attributable to N.A., the jury needed to conclude that N.A. was credible. This factor weighs
against harmlessness.
With respect to the second factor, whether the witness’s testimony was cumulative
of other evidence admitted at trial, the testimony that N.A. provided before the district court
determined that she was unavailable was not cumulative.
6 Again, the evidence of Garbow’s

6 In its discussion of factors two and three, the opinion of the court addresses whether
additional cross-examination would have been cumulative of the testimony already
admitted. It is my understanding that factors two and three ask us to consider the cumulative
nature of unconstitutionally admitted testimony of the witness who was not subject to
cross-examination, vis-à-vis other evidence admitted at trial. See Van Arsdall, 475 U.S. at
684 (directing consideration of the “importance of the witness’s testimony . . . [and]
whether the testimony was cumulative,” and “the presence or absence of evidence
corroborating or contradicting the testimony of the witness” (emphasis added)). Then,
factor four addresses “the extent of cross -examination otherwise permitted.” Id. Indeed,
the case on which the court relies in its discussion of factors two and three turned on a
discussion only of factor four. See State v. Zielinski, 10 N.W.3d 1, 16 (Minn. 2024)
(concluding “the jury’s verdict was surely unattributable to the error because of the extent
of cross-examination that was permitted”). For these reasons, I consider the cumulative

D-10
guilt turned almost entirely on N.A.’s testimony. There was no other substantive evidence
that the jury could have considered regarding Garbow’s sexual conduct toward N.A.
Assuming, as we must, that the “damaging potential of the cross-examination [would have
been] fully realized,” Van Arsdall, 475 U.S. at 684, and that N.A.’s “credibility would have
been impeached,” Schloegl, 915 N.W.2d at 20, there was scant other evidence on which
the jury could have relied to convict Garbow. For that reason, N.A.’s testimony was not
cumulative, and this factor also weighs against harmlessness.
Looking to factor three, whether there was evidence corroborating or contradicting
N.A.’s testimony on material points, there was some evidence corroborating aspects of
N.A.’s testimony, but no corroborating evidence on key elements of the charges. Regarding
count I, the charge on which Garbow was convicted, the state had to prove, inter alia,
(1) that Garbow engaged in sexual penetration or sexual contact with N.A., (2) that Garbow
had a significant relationship with N.A., (3) that N.A. “was under 16 years of age at the
time of the sexual penetration,” and (4) that “the sexual abuse involved multiple acts
committed over an extended period of time.” Minn. Stat. § 609.342, subd. 1(h)(iii) (2012).
N.A.’s mother corroborated N.A.’s testimony only regarding her age at the time of the
allegations and N.A.’s significant relationship with Garbow. The forensic interviewer who
interviewed N.A. and the officer who investigated Garbow each testified to statements
N.A. made during the forensic interview, but the corroborative value of those statements
is seemingly foreclosed by the district court’s limiting instruction regarding the forensic

nature of N.A.’s testimony in my discussion of factors two and three and I address the
cumulative nature of the cross-examination within my analysis of factor four.
D-11
interview.7 This leaves two material elements —sexual penetration or sexual contact, and
multiple acts over an extended period of time—uncorroborated by any witness and
supported by only N.A.’s direct testimony. See Minn. Stat. § 609.342, subd. 1(h)(iii). Also,
there was evidence contradicting some aspects of N.A.’s testimony in the forensic video,
which was admitted for impeachment purposes. Because there was little evidence
corroborating N.A.’s testimony and some evidence contradicting it , this factor further
weighs against a finding of harmlessness.
Factor four—the extent of cross-examination otherwise permitted—requires closer
scrutiny, but in my view still weighs against harmlessness. I respectfully disagree with the
opinion of the court that additional cross -examination would have been cumulative of the
evidence already received and that the jury had sufficient opportunity to observe the
witness’s demeanor. To begin, those conclusions do not appear to account for the fact that
we must presume for purposes of our harmless-error analysis that the “damaging potential
of the cross-examination [would have been] fully realized.” Van Arsdall, 475 U.S. at 684.
Instead, the opinion of the court appears to presume the opposite—that the jury’s
impression of the witness would not have changed with additional questioning. But it is
the cross-examination itself that “is the principal means by which the believability of a

7 Again, the district court instructed the jury that “the information from that interview that
was presented to you can be used . . . for only one purpose, to test the credibility of the trial
testimony she provided on the witness stand, here in court.” On appeal, “[w]e assume that
the jury followed the court’s instructions and properly considered the evidence.” State v.
Vang, 774 N.W.2d 566, 578 (Minn. 2009). As a result, we cannot consider N.A.’s
statements in the forensic interview as corroborating substantive evidence in our harmless-
error analysis, including statements she made that came in through the testimony of other
witnesses.
D-12
witness and the truth of [their] testimony are tested.” Ferguson, 742 N.W.2d at 656
(quoting Davis, 415 U.S. at 316).
Moreover, as noted, Garbow’s counsel identified specific topics about which he
intended to ask the witness but did not have a chance. And the district court acknowledged
that “the next question could have opened Pandora’s box to another hour of cross-exam.”
We cannot assume that the inconsistencies between the forensic interview and the direct
testimony are the only issues that would have been addressed in a full cross-examination.
The facts of this case also are materially distinguishable from the circumstances in
State v. Zielinski, 10 N.W.3d 1 (Minn. 2024), on which the opinion of the court relies. In
Zielinski, the Minnesota Supreme Court considered the harmlessness of a limitation on the
scope of a cross-examination, 10 N.W.3d at 14-15, not the harmlessness of a witness’s
unavailability for a complete cross- examination. There, the district court did not permit
defense counsel to ask a witness, who was an accomplice to the crime, about the content
of a letter he wrote that explained his remorse for agreeing to testify against the defendant
in exchange for a lesser sentence. Id. at 10-11, 14. The supreme court determined that,
because the defendant was still able to inquire during cross -examination about the
witness’s “state of mind and motivations for accepting the plea deal” and the district court
had “provided the jury a sanitized version of the plea agreement ,” the jury had been
“provided meaningful information on [the witness’s] plea agreement in the cross
examination that was permitted.” Id. at 16. As a result, the supreme court concluded “that
the damaging potential of [the] cross-examination” about details in the letter “would not
have been any greater because the information would have been cumulative.” Id. That is
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materially different from the situation here, where the cross-examination was cut short and
the jury did not have the opportunity to consider the witness’s demeanor when responding
to topics that had not yet been raised.
Turning to the fifth and final factor of in our harmless-error review—the strength of
the state’s case—I would conclude that it weighs against harmlessness for many of the
reasons already discussed. N.A.’s testimony was the only evidence supporting material
elements of the first-degree criminal sexual conduct charges. Assuming that Garbow’s
cross-examination reached its full, damaging potential and undermined N.A.’s credibility,
the state’s case was weak. I cannot say beyond a reasonable doubt that the jury would have
returned a guilty verdict on the counts involving N.A. based on the modest corroborating
evidence of N.A.’s mother, the investigating officer, and the forensic interviewer, while at
the same time disbelieving the testimony of N.A. herself.
In sum, considering the factors relevant to our harmless-error review and assuming
that the damaging potential of a full and fair cross-examination would have been realized,
I would conclude that the confrontation violation was not harmless beyond a reasonable
doubt. I would therefore reverse the first-degree criminal sexual conduct conviction and
remand for a new trial on counts I through III.
Respectfully, I dissent.