1 STATE OF MINNESOTA

IN SUPREME COURT
A22-1104
Court of Appeals Chutich, J. Concurring, Hudson, C.J., Thissen, J. Took no part, Hennesy, J. State of Minnesota, Respondent, vs. Filed: July 31, 2024 Office of Appellate Courts Frank James Bigbear, Appellant.

_____________ ___________ Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, Saint Paul, Minnesota; and Kimberly J. Maki, Saint Louis County Atto rney, Duluth, Minnesot a, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

_____________ ___________ S Y L L A B U S 1. Harmless-error review considers whet her a reasonable possibility exists that the error significantly influenced the verdic t, not merely whether the other properly admitted evidence was sufficien t to support the verdict.2 2. The erroneous admission of the reco rded interview was harmless because no reasonable possibility exists thatthe evidence significantly a ffected the jury’s verdict. Affirmed.
O P I N I O N CHUTICH, Justice. The issue in this case is whether the court of appeals conducted an incorrect harmless-error analysis to assess the imp act of erroneously admitted evidence when it affirmed appellant Frank Jame s Bigbear’s conviction for th ird-degree criminal sexual conduct. If we conclude that the analysis wa s incorrect, we must al so decide whether the error was harmless after conducting the correct standard of review. Bigbear, who was in his thirties, was charged with third-degree criminal sexual conduct for sexually assaulting I.M., who was then 14 years old. At trial, respondent State of Mi nnesota presented four witnesses, including the victim, and submitted more than 10 exhib its. Over Bigbear’s hearsay objection, the State introduced a video recording of the victim ’s interview with an investigator and a social worker that was conducted shortly af ter the sexual assault. After a 3-day trial, the jury found Bigbear guilty. Bigbear appealed, arguing that the ad mission of the record ed interview was reversible error. The court of appeals agreed that the video recording did not satisfy Rules 801(d)(1)(B) and 807 of the Mi nnesota Rules of Evidence. State v. Bigbear , No. A22-1104, 2023 WL 4169982, at *3–5 (Minn. App. June 26, 20 23). Nonetheless, the court of appeals concluded that the error was harmle ss because “the jury could have reached the3 same ‘verdict based on the other evidence . . . presented.’ ” Id. at *5–6 (quoting State v. Blasus , 445 N.W.2d 535, 540 (Minn. 1989)) (omission in original). Bigbear now argues that the analysis of th e court of appeals was flawed because the court conducted an improper harmless-error revi ew. Specifically, Bigbear asserts that the court of appeals erred by focusing solely on whether other proper ly admitted evidence sufficiently supported the verdic t, rather than the correct st andard, which is whether the erroneously admitted evidence s ubstantially influenced the ju ry’s decision. He further contends that under the correct standard of re view, the admission of the recorded interview was not harmless. We agree that the court of appeals employed an incorrect harmless-error analysis. After conducting th e correct harmless-error standard of review, however, we nonetheless affirm the decision of the court of appeals because we conclude that the erroneous admission of the video was harmless.
FACTS On September 19, 2019, a mandated reporte r contacted the police to report a sexual assault involving I.M, a child, prompting an investigation. When contacted by officers, I.M.’s mother (“Mother”) said that there had been an incident between Bigbear and I.M. about 2 weeks earlier. I.M. was then interviewed by an inves tigator and a social worker, and the interview was recorded. The investigator also separa tely interviewed Mother and Mother’s boyfriend (“Boyfriend”) and recorded those sessions. The investigator learned that during the summer of 2019, Mother and Boyfriend witnessed Bi gbear, who was then4 30 or 31 years old, 1 sexually assaulting I.M., who was then 14 years old, in an apartment in Duluth. The State charged Bigbear with third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1(b) (2020) (criminalizi ng the sexual penetration of a child between the ages of 13 and 16 when the perpetrator is more than 24 mo nths older than the victim). The State presented the testimony of I.M., Mother, Boyfriend, and the investigator at trial, as well as the video recordings of th e investigator’s intervie ws with them. I.M., who was 16 years old when the trial occurred in December 2021 , testified that Bigbear had sexual intercourse with her in an apartmen t where Mother and Boyfriend lived sometime before the fall of 2019. I.M. testified that Bi gbear was at the apartmen t to hang out with a friend of Boyfriend. I.M. and Bigbear went into a bedroom where they made out and had sexual intercourse, which I.M. explained meant th at his penis went inside her body. She testified that she was not wear ing any pants or underwear and that Bigbear was naked. Mother and Boyfriend interrupt ed Bigbear having sex with I.M., and they kicked Bigbear out of the apartment. I.M. testified that she and Bigbear had not talked about sex beforehand. At trial, she ad mitted that she had not been ho nest during the interview with the investigator but stated that she was being tr uthful in her trial tes timony. I.M. did not identify which parts of the interview were not truthful. She also admitted on cross-examination that she had lied to Bi gbear, telling him that she was 18 years old. 2

1 At the beginning of the summer of 2019, Bigb ear was 30 years old; he turned 31 on August 1, 2019.

2 Because it is undisputed that Bigbear is more than 120 months older than I.M., neither mistake of age nor consent is a defe nse to the charge. Minn. Stat. 609.344, subd. 1(b) (“In any such case if the actor is no more than 120 months older than the5 Mother and Boyfriend testifie d at trial. They each iden tified Bigbear as the person they saw having sex with I.M. Each testifie d that they saw Bigbear on top of I.M., moving up and down under a blanket. When Mother and Boyfriend conf ronted him, they saw that he was naked. Bigbear said that he though t I.M. was 18. Boyfrie nd then punched Bigbear, and they threw him out of the apartment. Th e recorded video interviews of Mother and Boyfriend with the investigator were also in troduced at trial without objection and were not challenged on appeal. B oyfriend’s recorded interview in cluded an additional detail not in his trial testimony: While he was punchi ng Bigbear after discov ering him having sex with I.M., Bigbear said, “I deserve it. I deserve it.” Over defense counsel’s hearsay objection, the court also admitted a 33-minute video recording of the September 26, 2019 interview of I.M. by th e investigator and a social worker. Although defense counsel objected to the admission of the video recording, he did not ask for specific redactions of any portion of the video. The video was introduced during the investigator’s testimony as a prior consistent statement by I.M., Minn. R. Evid. 801(d)(1)(B), 3 and under the residual hearsay exception, Minn. R. Evid. 807. 4

complainant, it shall be an affirmative defense . . . that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to the complainant’s age shall not be a defense

. Consent by the complainant is not a defense . . . .” (emphasis added)).

3 “A statement is not hearsay if . . . [t]he decl arant testifies at the trial or hearing and is subject to cross-examination conc erning the statement, and the statement is . . . consistent with the declarant’s testimony an d helpful to the trier of factin evaluating the declarant’s credibility as a witness.” Mi nn. R. Evid. 801(d)(1)(B).

4 A hearsay statement that is not “specifical ly covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustw orthiness,” is not prohibited by the hearsay6 In the recorded interview, I.M. recounted what happened. Like her trial testimony, she identified Bigbear as the person who had se xual intercourse with her at the apartment in Duluth. Consistent with her testimony, I.M. said that “sexual intercourse” meant Bigbear’s penis went inside her body, and she described that she was not wearing any pants or underwear and that Bigbear was naked. Like her testimony at trial, she said Mother and Boyfriend interrupted Bigbear having sex wi th her and that Boy friend punched Bigbear. Additionally, in her recorded interview, I.M. described what happened in more detail than in her trial testimon y and gave additional information that was either not part of her trial testimony or inconsistent with that testimony. For instance, I.M. described when the sexual assault occurred with more specificity. I.M. al so identified Bigbear in the recorded interview by showing the investig ator a photo taken from Bigbear’s Facebook profile. She explained that she and Bigbear joke d about sex, and that he said he wanted to have sex with her before they went into the be droom. In her recorded interview, I.M. also called Bigbear a “pedophile” and a “pervert” and said that what happ ened was “gross” and “nasty.” I.M. also told the i nvestigator that she got chlamydia 5 from Bigbear; she did not testify about chlamydia at trial. On cross-examin ation at trial, the investigator testified that he never saw a chlamydia diagnosis and a sexua l examination of I.M. was never conducted.

exclusion rule, if “the statement is offered as evidence of a material fact,” “the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable effort s,” and “the general purposes of these rules and the interests of justice will best be served by admission of the stat ement into ev idence.” Minn. R. Evid. 807.

5 Chlamydia is a sexually transmitted disease. Chlamydia , The American Heritage Dictionary 326 (5th ed. 2011).7 Bigbear testified in his own defense. He admitted that he was at the Duluth apartment belonging to Boyfriend and Mother during the summertime in 2019 when he was either 30 or 31 years old. He denied meeting Mother or I.M. and said that he did not know I.M. was there. Bigbear testified that he did not have sexual contact with I.M. and claimed that he remembered the whole day, despite smoking marijuana and drinking that day. He admitted lying down in a bedroom because of his intoxication and testified that he woke up to Boyfriend scream ing at him. Bigbear testified that he believed he was being yelled at because he had fallen asleep in the ap artment without permission. He denied ever receiving a chlamydia diagnosis. The jury found Bigbear guilty of third- degree criminal sexual conduct, and the district court imposed a sentence consistent with the Minnesota Se ntencing Guidelines. On appeal, Bigbear argued th at admission of the recorded interview was reversible error. The court of appeal s agreed that the recorded interview was inadmissible 6 under Minnesota Rules of Evidence 801 (d)(1)(B) and 807 because it contained statements that were inconsistent with or entirely absent fro m I.M.’s trial testimony and because the Rule 807 factors were not satisfied. Bigbear , 2023 WL 4169982, at *3–5 . The court nonetheless affirmed the conviction. Id . The court of appeals concluded that the error was harmless because “[t]he record contains ample evidence that Bigbear sexually assaulted the victim” and “the jury could have reached th e same ‘verdict based on the other

6 The court of appeals’ conclusion that th e evidence was erroneously admitted is not before us on appeal.8 evidence . . . presented.’ ” Id. at *5–6 (quoting Blasus , 445 N.W.2d at 540) (omission in original). Bigbear petitioned for review, asserting that the court of appeals’ harmless-error review was flawed and that the error is not harmless under the correct harmless-error standard of review.
ANALYSIS
I. We “generally will not reverse a verdict ev en when improper [evi dence] is presented to the jury unless there is a ‘reasonable possibility that th e wrongfully admitted evidence significantly affected the verdict.’ ” State v. Jaros , 932 N.W.2d 466, 472 (Minn. 2019) (citation omitted). The defendant bears th e burden of making that showing. State v. Smith , 940 N.W.2d 497, 505 (Minn. 2020). When conducting harmless-error review , we “examine the entire record,” Jaros , 932 N.W.2d at 474, and “cannot fo cus only on evid ence of guilt,” Townsend v. State , 646 N.W.2d 218, 224 (Minn. 20 02). This is because, crucially, “[i]n assessing whether an error is harmless, the question is no t whether the [oth er] evidence was sufficient to support the conviction, but rather whether the erro r substantially influe nced the verdict.” State v. Expose , 872 N.W.2d 252, 260 (Minn. 2015) (emphasis added). An error is not harmless if a reasonable possibility exists th at the error significa ntly affected the jury’s verdict. Smith , 940 N.W.2d at 505. 7

7 Bigbear does not claim that any constitutiona l right was impacted by the error. In cases in which a constitutional right is involv ed, “[f]or such a [constitutional] violation to9 Non-exclusive factors we consider to determine whether a reasonable possibility exists that the erroneously ad mitted evidence significantly affected the jury’s verdict include: “(1) the manner in which the party presented the evidence, (2) whether the evidence was highly persuasive, (3) whether the party who offe red the evidence used it in closing argument, and (4) whether the defens e effectively countere d the evidence.” Smith , 940 N.W.2d at 505. In addition, “[s]trong evidence of guilt underm ines the persuasive value of wrongly admitted evidence.” Id. This analysis is fact-s pecific, and not all the factors are relevant or persuasive in every case. Compare Smith , 940 N.W.2d at 505 (using the above factors) with Jaros , 932 N.W.2d at 474 (consideri ng the State’s other evidence on the issue, cautionary instructions, and th e State’s use of the evidence in closing argument). When conducting its harmless-error review, the court of appeals did not consider these factors but, instead, only analyzed the su fficiency of the evid ence. To be sure, the court began by citing the appropriat e harmless-error standard of review. Bigbear , 2023 WL 4169982, at *2 (“Unde r this standard, an appellant who alleges an error must prove that there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”) (citati on omitted) (internal quotation marks omitted). In its analysis, however, the court quoted Blasus for the proposition that “[a]n error is harmless if the jury could have reach ed the same ‘verdict based on the other

be deemed harmless, it must be harmless beyond a reasonable doubt.” State v. Courtney , 696 N.W.2d 73, 79 (Minn. 2005). “An error is harmless beyond a reasonable doubt if the guilty verdict actually rende red was ‘surely unattribut able’ to the error.” Id. at 80 (quoting State v. Juarez , 572 N.W.2d 286, 292 (Minn. 1997)).10 evidence . . . presented.’ ” Id. at *5 (omission in original) (quoting Blasus , 445 N.W.2d at 540). The court then conduct ed a sufficiency-of-the-evidence type of review by only reviewing evidence of Bigbear’s guilt. Id. at *6. The court of appeals concluded that the jury would not have reached a different ve rdict had the intervie w been excluded. Id. In short, although the court of appeals in itially identified the co rrect harmless-error standard of review, it incorrectly cited Blasus before conducting a sufficiency analysis instead. The parties agree that“sufficient” evidence does not satisfy the harmless-error standard of review. We have reiterated that Blasus does not stand for the proposition that the court of appeals attributed to it. See, e.g. , State v. Koppi , 798 N.W.2d 358, 3 65–66 (Minn. 2011) (citing Blasus , 445 N.W.2d at 541, in stating that harmless-error review is not about “whether the evidence presented at trial was su fficient to support a ju ry finding with respect to the element of the offens e on which the jury was err oneously instructed”). In Blasus itself, we recognized that “ ‘[w]here error may have prejudiced a close factual case, this court will order a new trial, even if the evid ence is otherwise sufficient to support the verdict.’ ” 445 N.W.2d at 541. And we have since clarified th at “[i]n assessing whether an error is harmless, the ques tion is not whether the evidence was sufficient to support the conviction, but rather whether the error substantially influenced the verdict.” Expose , 872 N.W.2d at 260 (stating that Koppi stands for the rejection of “the proposition that harmless-error analysis is about assessing the sufficiency of the evidence presented at trial”). Accordingly, the court of appeal s conducted an improper harmless-error review.11 In sum, an error is not harmless merely because other evidence supported the verdict. That inquiry does not sufficiently accoun t for the fact that the jury heard and considered the erroneously adm itted evidence. Inst ead, to assess harmless error we must consider all the evidence intro duced as well as other illu minating factors (including the non-exclusive factors set forth earlier) and ask whether there is a reasonable possibility that the error significantly a ffected the verdict.
II. Having identified the correct harmless-error standard of review, we now consider whether there is a “reasonable possibility” that the erroneously admitted recorded interview “significantly affected the verdict.” Jaros , 932 N.W.2d at 472 (c itation omitted) (internal quotation marks omitted). In doing so, we c onsider the non-exclusive factors we most recently applied in Smith : the manner in which the evidence was presented, its persuasive value, its use in closing argument, a nd Bigbear’s counter of the evidence. See 940 N.W.2d at 505. We also consider whethe r the evidence of guilt was strong. Id. At the outset, the parties agree that our harmless-error review should be focused on the inadmissible portions of the video. We ag ree and, accordingly, in our analysis of each factor, we focus primarily on I.M.’s inconsistent or suppleme ntal statements in the recorded interview because the statements that are consistent with he r trial testimon y would have been properly admitted. Manner Presented We consider “the manner in which the party presented the evidence” to determine whether it significantly affected the jury’s verdict. Smith , 940 N.W.2d at 505. In analyzing12 the prominence of erroneously admitted evidence, we have pr eviously considered, among other things, the relative number of transc ript pages that the evidence occupies. See id. at 506 (concluding that inadmissi ble evidence was only a “small part of the State’s presentation” because it spanne d only 35 pages of a 1,380- page trial transcript). In addition, we have contemplated whether the ev idence was used throughou t the State’s case. E.g. , State v. Al-Naseer , 690 N.W.2d 744, 749–50 (Minn. 2005) (concluding that a video recording of the defendant’s interview withpolice was prominent because the prosecutor mentioned it in the State’s opening statem ent, closing argument, and on direct and cross-examination of witnesses to point out inconsistencies in the defendant’s statements). Bigbear argues that the record ed interview featured promin ently in the State’s case because it was longer than I.M.’s entire trial testimony, as well as the testimony of the other witnesses. The State counters that almost all of the 33-mi nute interview was admissible as a prior consistent statement, the video in its entirety spanned only 33 pages of the 300-page trial transcript (exclusive of voir dire) and was one of 17 exhibits. Our review demonstrates that the challe nged statements only span about 12 pages of trial transcript. 8 More importantly, the recorded in terview was not introduced until I.M., Mother, and Boyfriend had all testified consistently at trial about Bigbear sexually assaulting I.M. The prosecutor did not me ntion the recorded interview in opening statement and only questioned I.M . and the investigator briefly about it. I.M. admitted that she had not been truthful when sp eaking to the investigator in 2019. In his direct testimony,

8 An additional 5 pages of th e recorded interview are I. M.’s descriptions of the apartment layout that are not in dispute.13 the investigator answered questions about hi s interviewing technique, exhibits created during the interview (a diagram of the ap artment and a photo fro m Bigbear’s Facebook profile), and I.M.’s demeanor during the inte rview. Further, the prosecutor briefly mentioned I.M.’s interview in cl osing argument primarily to as k the jury to assess whether the girl in the video looked like an adult and to stress the consistency of her statement that sexual penetration occurred. Under these circ umstances, we do not believe that the video was given undue prominence at trial and, acc ordingly, this factor supports a conclusion that the error was harmless. Persuasive Value When conducting a harmless-error revi ew, we also consider whether the inadmissible evidence was “highly persuasive.” Smith , 940 N.W.2d at 505. Bigbear argues that the erroneously admitted evidence was highly pe rsuasive because it (1) added detail and context to bolster I.M.’s credib ility, (2) included impe rmissible character evidence, (3) introduced corroborative evidence that was not admitted at trial, (4) relayed “vouching” statements, and (5) evoked the jury ’s sympathy. The State counters that much of the interview was cumulative to other evidence admitted th rough the trial testimony of I.M., the eyewitnesses, the inve stigator, the other recorded interviews, and the exhibits. We consider each of Bigbear’s arguments in turn. We conclude that, on balance, this factor weighs toward concluding that th e error was not harmless because Bigbear has shown that some inadmissible portions of th e recorded interview were quite persuasive. First, additional details from the erroneous ly admitted exhibit likely contained some persuasive value in making the circumstances of the assault more conceivable. In State v.14 Wright , we concluded that errone ously admitted testimony imp acted the verdict because it “elicited new information.” 726 N.W.2d 464, 477 (Minn. 2007) (citation omitted) (internal quotation marks omitted). But in that ca se, the inadmissible statement included the victim’s description of the weapon, the defendan t’s threats, and the victim’s state of mind. Id. Here, the additional details are not as mate rial. They include I.M.’s approximation that the sexual assault happened “ like two months ago,” and that before it began, she and Bigbear had been joking about sex, he grabbed he r buttocks, and he told her that he wanted to have sex with her. Bigbear compares this case to State v. Expose , but that case is inapposite. There, we concluded that erroneously admitted test imony about the defendant’s threats was not harmless because admissible testimony about the threats was less “substantial” and “extensive,” and the inadmissi ble testimony “provided the keyevidence” about a material element for the charge—the defendant’s mens rea. Expose , 872 N.W.2d at 255, 261 (emphasis added). Here, by contrast, I.M. tes tified to the “key” evidence at trial on the material element at issue—sexual penetra tion—and her testimony on that issue was consistent with Mother’s and Boyfriend’s eyewitness testimony a nd their unchallenged recorded statements w ith the investigator. Because ther e was cumulative ev idence to prove sexual penetration, the recorded interview did not provide the “key” ev idence on a material element of the offense. Second, inadmissible character evidence undoubtedly had persuasive effect and was inappropriately admitted. I.M. used inflamma tory language, calling Bigbear a “pedophile” and a “pervert” in her intervie w. This name-calling is char acter evidence excluded by the15 Minnesota Rules of Eviden ce because of its unfairly prejudi cial impact. It is difficult to imagine how Bigbear could have rebutted th is inadmissible charac ter evidence without attracting more attention to it. That the St ate offered this clearly inadmissible portion of the video without redaction in a case alleging sexual assault was a significant misstep. We expect prosecutors, when seek ing admission of a prior consis tent statement—and district courts when admitting such ev idence—to be vigilant in ex cising unfairly prejudicial, extraneous material before it is played for the jury. Third, the “extrinsic corro borating evidence”—I.M.’s re corded statements about Bigbear’s Facebook profile a nd about her chlamydia diag nosis—also had persuasive effect. On the one hand, I.M.’s statement th at she had found Bigbear’s Facebook profile does not carry much weight b ecause I.M., Mother, and Boyfrien d all identified Bigbear as the perpetrator at trial. But conversely, I.M.’s recorded interview contained the only evidence of a chlamydia di agnosis after the sexual assault. If taken as true by the jury, her statement suggested that there is physical pr oof of the crime. Cross-examination of the investigator may have undercut the persuasive impact of th at statement somewhat because he testified that he had not se en evidence of such a diagnosis and that no sexual assault examination of I.M. had taken place. But the investigator’s testimo ny may have just as easily suggested that he simply had not follow ed up about th e diagnosis, not that he had ruled out the diagnosis or found I.M. uncredible on that point. Ultimately, I.M.’s recorded16 statement about contracting chlamydia from Bi gbear was sufficiently pointed that it was likely difficult to un-ring th at bell with the jury. 9 Fourth, improper vouching typically occurs when the State “intentionally elicited vouching testimony during trial and th en used it in closing argument.” Van Buren v. State , 556 N.W.2d 548, 551 (Minn. 19 96) (holding that the trial testimony of three witnesses about who among the victim’s and defendant’s fam ilies believed the victim’s allegations was “improper vouching”). Unlike other cases th at we have decided, in which the victim did not testify at trial, here, ne ither the investigator nor the so cial worker testified at trial on behalf of an absent victim. See Wright , 726 N.W.2d at 477 (concerning the trial testimony of an investigating o fficer who relayed the on-scene st atements of assault victims who did not testify at trial). Instead, the claimed “vouching” statements by the investigator (“. . . I can see it’s still affecting you and I don’t want this to happen to you again.”) and the social worker (“Y ou know [the investigator] doesn’t make judgments about kids when they tell him gross things that happened, it’s ju st a fact.”) in the re corded interview could reasonably have been understood by the juryas contemporaneous expressions of sympathy and support for 14-year-o ld I.M. as she tried to recount the sexual assault to strangers. Even so, given the investigator’s training and experience with victims of sex crimes, jurors may have interpreted this statement of suppor t as the investigator’s belief that I.M. was

9 Again, this additional, prejudicial statem ent that varied from the victim’s trial testimony should have been redacted before the video was offered and admitted as a prior consistent statement.17 credibly recounting the sexua l assault. Although the St ate did not reference these statements in closing, the jury may have been influenced by them. Fifth, we do not believe that the record ed video was highly persuasive in evoking the jury’s sympathy for I.M. Had the video been pr operly redacted and limited to statements consistent with I.M.’s trial test imony, the jury still would have seen her appearance as a 14-year-old and her emoti ons and demeanor when talking about the assault. Further, the investigator descri bed I.M.’s demeanor and her crying in his unchallenged trial testimony. In addition, the jury saw first-hand I.M.’s demeanor and reluctance to talk about sex and body parts during her trial testimony. This cumulative evidence lessens any persuasive impact. Finally, the district court inst ructed the jury that it “shall not permit bias, prejudice, or sympathy to affect its verdict.” Because the jury is presumed to have followed that instruction, any improper evocation of the jury’s sympathy for the victim was mitigated. See State v. Fardan , 773 N.W.2d 303, 320 (Minn. 2009). On balance, taking these factors into co nsideration, some of the wrongly admitted evidence in the recordedinterview had enough pe rsuasive value to cause us to weigh this factor as supporting a finding th at its admission was harmful. Use in Closing Argument We also consider whether and how the o ffering party used the erroneously admitted evidence in closing argument. Smith , 940 N.W.2d at 505. Bi gbear contends that the video’s prominence was exacerbated by the pr osecutor’s mention of it nine times during18 closing argument and rebuttal to encourage the jury to see I.M.’s age and demeanor and to find her credible. The State argues that the prosecutor did not emphasize the recorded interview in closing. We agree with the State. The prosecutor referenced the recorded interview in only two paragraphs of the 19-page transcript of his closing and rebuttal arguments. The statements concerned I.M.’s appearance as a 14-year-old, her tears while being interviewed, her disgust when talking about se x and body parts, and the consistency of her statements. But these are not inherently prejud icial or improper reasons for the prosecutor to reference the video. If the consistent porti ons of the video had be en properly admitted, the jury still would have seen a younger version of I.M., her emotions and tears while being interviewed, and her disgust wh en talking about sex and body parts (which was consistent with, albeit more pronounced than, her trial testimony). Further, the prosecutor made only one refe rence in closing to a statement in the recorded interview that was not in I.M.’s tr ial testimony concerning Bigbear’s picture on his Facebook profile. Because Bigbear wa s identified by eyewitness testimony and because Boyfriend also testified in his re corded interview to seeing Bigbear’s Facebook profile, the prosecutor’s mention of this detail in closing argument w ould not have affected the verdict. Because the prosecutor referenced the recorded interview in cl osing ar gument primarily for evidence that was also introduced by other witne sses and exhibits, this factor weighs in favor of concluding that the error was harmless.19 Effectively Countered We may also consider whether the defendant “effectively countere d the evidence.” Smith , 940 N.W.2d at 505. Bigbear argues that he was not able to effectively counter the recorded interview because I.M. did not reme mber enough at trial to be effectively cross-examined. Additionally, he maintains that because the scope of I.M.’s direct examination did not include deta ils from the video, he was unabl e to question her about it. The State contends that Bigbear countered the video by highlighting ga ps in I.M.’s memory and maintains that it is not fa tal to harmless-error analysis if “defense counsel did not [counter] well.” We agree with Bigbear that th is factor weighs in favor of concluding that the error was not harmless. Although Bigbear countered the evidence from the recorded interview to some extent in his cross-ex amination of I.M. and the inves tigator, as well as in closing arguments, ultimately, we conclude Bigbear did not effectively co unter the inadmissible evidence. Strong Evidence of Guilt Finally, “overwhelming evidence of guilt is a factor, often a very important one, in determining whether . . . the error has no impact on the verdict.” State v. Juarez , 572 N.W.2d 286, 291 (M inn. 1997). “Strong ev idence of guilt undermines the persuasive value of wrongly admitted evidence.” Smith , 940 N.W.2d at 505. Bigbear argues that the evidence against him was not strong, citing the length of jury deliberation (5 hours) for a single-issue case; the absenc e of physical, medical, and DNA evidence; and the lack of any incriminati ng statements to investigators. The State20 refutes Bigbear’s hypothesis about the lengt h of jury deliberations, references the “uncommon” number of eyewitnesses in a child sexual assault case, and highlights Boyfriend’s unchallenged assertion that Bigbear told him, “I deserve it. I deserve it,” as Boyfriend punched him af ter the sexual assault. Although harmless-error review consider s the entire record, including evidence inconsistent with a guilty ve rdict, this factor focuses exclusivelyon evidence of guilt. The following trial evidence is overwhelming eviden ce of Bigbear’s guilt of criminal sexual conduct: Bigbear admitted that he was in Moth er’s home in the summer or fall of 2019, the timeframe at issue; Bigbear admitted that he went to lay down in a bedroom when he was inebriated and passed out; Bigbear admitte d that Boyfriend woke him up very angry; Bigbear admitted that he was at least 30 ye ars old and it is uncontested that I.M. was 14 years old at the time; I.M. testified that she went into the bedroom with Bigbear and that, there, Bigbear had sex w ith her and his penis entered her body; Boyfriend testified that he observed that the bedroom door was clos ed and the light was off before he opened the door; when Boyfriend peeked in, he could tell that Bigbear was having sex with I.M. because he saw Bigbear on to p of I.M. moving up and down under a blanket; Mother also testified that Bigbear was on top of I.M. movi ng in a back and forth motion as if having sex; Bigbear was naked and I.M. was only we aring a shirt; when Boyfriend and Mother confronted them, Bigbear immediately jumpedoff the victim; Boyfriend punched Bigbear, who then said, “I deserve it. I deserve it” ; and two eyewitnesses, in addition to I.M., identified Bigbear as the perpetrator in 2019 and at trial 2 years later. Bigbear does not challenge the admission of any of this eviden ce of guilt, which reached the jury through21 the testimony of three witnesse s, including the victim, and th e recorded statements of Mother and Boyfriend. Because the eviden ce was overwhelming against Bigbear, this “very important” factor weighs heavily in fa vor of finding that any error was harmless.
* * * In sum, after weighing the pertinent factors using the correct harmless-error standard of review and giving appropriate weight when evaluating these factors to the overwhelming evidence that shows that Bigbea r sexually assaulted I.M., we conclude that Bigbear did not meet his burden of showing th at there is a “reasonable possibility that the wrongfully admitted evidence signifi cantly affected the verdict.” Jaros , 932 N.W.2d at 472 (citation omitted) (internal quotation marks omitted). Accordingly, after applying the correct standard of review, we affirm the decision of the court of appeals to affirm Bigbear’s conviction. Although we conclude that the evidentiary error regard ing the video is ultimately harmless to the verdict, we do not condone th e admission of the complete video interview of I.M. when portions of the video were clearly inadmissible. We expect that in the future the State and district court judges will more car efully scrutinize prejudi cial evidence that is supplemental to trial testimony before it is offered and accepted into evidence as a prior consistent statement.
CONCLUSION For the foregoing reasons, we affirm the decision of the court of appeals. Affirmed.22 HENNESY, J., not having been a member of this court at the time of submission, took no part in th e consideration or decision of this case.C-1 C O N C U R R E N C E HUDSON, Chief Justice (concurring). The State abdicated its role as a minister of justice by using I.M.’s video interview to improperly bolster her credibility, evoke symp athy from the jury, and undercut Bigbear’s testimony with rank, inadmissibl e character evidence. I join Part I of the court’s opinion and narrowly concur that the e rror here was harmless. But I wr ite separately to underscore this court’s role in protecting the integrity of judicial proceedings and enforcing the rules of evidence. The Minnesota Rules of Evidence play a f oundational role in structuring the system of justice in this state. By their very terms, they serve to “secure fairness in administration . . . and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” Minn. R. Evid. 102. One way that the Rules effectuate that purpose is by keeping unreliable evidence out of court proceedings, generally excluding hearsay stat ements that do not fall within an enumerated exception. Minn. R. Evid. 802; see State v. King , 622 N.W.2d 800, 808 (M inn. 2001) (“Statements that fall within a ‘firmly-ro oted’ hearsay exception are assumed to be reliable and are therefore admissible.” (citation omitted)). Although not squarely before us, 1 the court of appeals rightly concluded that I.M.’s record ed interview was inadmissible under Rule 801(d)(1)(B) and Rule 807.

1 As the court notes, “[t]he court of a ppeals’ conclusion that the evidence was erroneously admitted is not befo re this court because the St ate did not file a conditional cross-petition for review.” See supra at 7 n.5.C-2 When the Rules are broken a nd evidence is erroneously ad mitted, we must carefully consider any impact on the fairness of the proceedings. To do so, we must determine whether there is a “reasona ble possibility that the wron gfully admitted evidence significantly affected the verdict.” State v. Jaros , 932 N.W.2d 466, 472 (Minn. 2019) (citation omitted) (internal quot ation marks omitted). Our reso lution of that question must be made in view of the entire record, id. , and we have previously considered factors such as: (1) whether the evidence was highly persuasive, (2) th e prominence and presentation of the evidence, (3) whether the evidence was used in clos ing argument, and (4) whether the evidence was effe ctively countered. See State v. Smith , 940 N.W.2d 497, 505 (Minn. 2020). We have also made the commonsense observation that, regardless of the weight of such factors, “[s]trong evid ence of guilt undermines the pe rsuasive value of wrongly admitted evidence.” Id. The erroneously admitte d video interview was “highly persuasive” and afforded the State an opportunity to intr oduce inadmissible corro borative and character evidence, as well as improperly evoke the sympathy of the jury and bolster the victim’s credibility. See Smith , 940 N.W.2d at 505. First, the interview had significant persua sive value because it referenced evidence that would tend to corroborate I.M.’s testimony but which was not introduced at trial. In the video interview, I.M indicat ed that Bigbear had infected her with chlamydia. This statement was plainly inadmissible hearsa y that conveyed da maging evidence not established by any other evidence in the record . Compounding the damage was the obvious risk that the video’s discussion of the chlamydi a infection implied the existence of extrinsicC-3 professional medical evidence to substantiate the diagnosis. Ye t at trial the State introduced no such evidence of a chlamydia diagnosis or treatment. Second, the video included inadmissible ch aracter evidence in which the victim referred to Bigbear as a “pedophile” and a “perve rt.” This type of inflammatory language is clearly prohibited by the Minnesota Rules of Evidence and demo nstrates the State’s inexplicable failure to redact th e video interview to ensure that Bigbear received a fair trial. The persuasive value of this a dverse character evidence is pa rticularly pronounced in light of juror sentiments about th e nature of the offense that surfaced during voir dire. 2 Third, the video improperly evoked the sy mpathy of the jury by depicting an understandably tearful 14-year-old I.M., pleading for her grandmother. In closing, the State argued that I.M.’s emotions were “significant to the State’s case” and noted that I.M. struggled to recount what happened in the vi deo interview, calling it “gross” and covering her face before “the tears came.” The State made the calculated choice to present the emotional video interview and reference it in closing arguments, rather than focus on I.M.’s more mature demeanor as a 16-year-old at tr ial. The State’s reliance on the erroneously admitted video interview to evok e the jury’s sympat hy was improper and contributes to the

2 During voir dire, multiple seated jurors e xpressed revulsion upon learning the nature of the crime. For example, on e juror stated that the charge made her “nauseous” and that she had an “emotional” and “phys ical, visceral” reaction to it; another explained that when she first learned the nature of the case, she thought that “the case was creepy.”C-4 persuasive value of the evidence, particularly because the jury was predisposed to feel sympathy for I.M. 3 Fourth, the video had considerable persua sive value for the additional detail and context it provided the jury. See State v. Wright , 726 N.W.2d 464, 477 (Minn. 2007) (evidence had substantial persuasive value where it “elicited new information” (citation omitted) (internal quotation marks omitted)). For example, I.M. did not testify at trial that she and Bigbear had spoken befo re the assault and did not desc ribe the assault itself with any detail. The video interview, however, nea tly filled those gaps in the State’s case because I.M. gave a comprehensiv e account of her experience w ith Bigbear. She discussed how, before the assault, Bigbear joked with her about sex and told her that he wanted to have sex with her, and she gave detailed descri ptions of what clothes they were wearing, how clothing was removed, and ho w long the assault lasted. Th ese details provided vivid, persuasive context that was notably absent from the State’s presentation of trial testimony. Most concerningly, the State relied on the inadmissible vi deo interview for the express purpose of bolstering I.M.’s credibility, and in ru ling to admit it, the district court explained that the video interview help ed “fill in some gaps” from her memory at trial. The persuasive value of the video interview was enhanced by the State’s specific argument in closing that I.M.’s statements in the video interview corroborated he r trial testimony and showed that her testimony was credible.

3 Seated jurors also expressed a predispositi on to feel sympathy fo r I.M. in their juror questionnaires. One juror said that when she learned of the charges, her initial reaction was to “feel for the child that this happened to” and another juror’s initial re action was that “it’s very sad to hear th at this happened.”C-5 I do not agree with the court’s reasoning that because the add itional details did not go to material elements of the crime, they were less persua sive. As the State explained when arguing for admission of the video intervie w, I.M.’s initial outline of the crime to law enforcement is evidence of a material f act. Further, the additi onal details in the video provided specific, compelling r easons for the jury to credit the victim ’s account of the assault, which is precisely what the State enc ouraged the jury to do. Here, as in many sexual assault prosecutions, witne ss credibility strikes at the very heart of the case and has undeniable persuasive value. By discounti ng the value of details that bolster witness credibility simply because theydo not bear on the “mater ial elements” of the charged offense, the court trivializes the persua sive value of this critical evidence. Because the video interview introduced inadmissible corroborative and character evidence, and improperly evoked the jury’s sympathies to bolster I.M.’s credibility, the erroneously admitted evidence was “highly pe rsuasive” and this factor weighs toward concluding that the error was not harmless. Not only was the erroneously admitted video evidence hi ghly persuasive, it was also unmistakably prominent. See Smith , 940 N.W.2d at 505–06. We have previously analyzed the prominence of erroneously admitted evid ence by measuring the relative number of transcript pages that the ch allenged evidence occupies. See id. at 506. Although I agree with the court as to which portions of the video were inadmissible, we reach different conclusions regarding whether the relative num ber of transcript pages those statements occupy weighs towards concluding the error was or was not harmless. Here, I.M.’s erroneously admitted interview spanned 33 trial transcript pages, and the inadmissibleC-6 statements therein span a greater portion of the trial transcript than the whole of her trial testimony on direct examination. Indeed, when co mpared to I.M.’s entire trial testimony, the inadmissible statements are two-thirds the length of her entire trial testimony. The prominence of the erroneously admitted video we ighs toward concluding that the error was not harmless. Additionally, the prominen ce of the inadmissible vi deo evidence was compounded by the State drawing upon it in closing argument. See Smith , 940 N.W.2d at 505. On this point, the court’s analysis misapprehends the prejudicial effect of the State’s numerous references to the erroneousl y admitted evidence during cl osing argument. The State impermissibly pointed to the video three times to show consistency between I.M.’s video statement and her trial testimony, thereby esta blishing I.M.’s credibility and suggesting that the State had met its burden on each elemen t. In this case of competing narratives, credibility was essential to discer ning the truth, and the State’ s repeated references to the erroneously admitted video interview and inad missible statements during closing argument reinforced I.M.’s credibility with the jury. This factor weighs towards concluding that the error was not harmless. Furthermore, as the court correctly recogn izes, Bigbear was not able to “effectively counter[] the evidence.” Smith , 940 N.W.2d at 505. This fa ctor underscores the gravity of the erroneous admission of the video evidence in this case. Because the prosecutor did not ask I.M. about certain inadmissible statements from the video, such as her contraction of chlamydia or reference to Bigbear as a “pe dophile,” and because the video interview was not broadcast to the ju ry until after I.M. testified, Bigb ear had no opportunity to cross-C-7 examine I.M. about the inconsistent statem ents and additional information contained therein without recalling her to testify. Wh ether the district court would have permitted Bigbear to recall the minor vi ctim and question her about th e inconsistencies is unknown, but it is clear that the State’s decision to present the complete vi deo interview without proper redaction left Bigbear with a Hobson’s choice: forego cross-examination or recall the State’s key witness. In fact, Bigbear’s only real opportunity to counter the evidence was in cross-examination of th e investigator (who admitted there was no evidence of the chlamydia diagnosis) and during closing argument. This was insufficient for Bigbear to effectively counter the erroneously admitted ev idence. Accordingly, this factor weighs towards concluding that th e error was not harmless. Although I find that all of the foregoing Smith factors suggest that the district court’s error in admitting the video statement was not harmless, I must lastly consider whether there was overwhelming evidence of gu ilt to support the jury’s verdict. See State v. Juarez , 572 N.W.2d 286, 291 (Minn. 1997). Here, I agre e with the court that the cumulative weight of unchallenged evidence of Bigbear’s guilt is str ong. In addition, this sexual assault case presents the rare instance in which the State presented eyewitn ess testimony of not one, but two individuals who—aside from the victim —directly observed the crime. Both eyewitnesses were interviewed by the investigator and recordin gs of their interviews were admitted at trial; much of those interviews was consistent with their trial testimony two years later. Considering th e eyewitness testimony, I see no reasonable possibility that the erroneous admission of I.M.’s video interview subs tantially affected the jury’s verdict. I thus agree with the court th at the error was harmless.C-8 But we must remember that justice is a pr ocess, not a result. And the process here should concern us all because it undermined the p ublic’s trust and confidence in the judicial system. Bigbear’s ability to defend himself was undoubtedly hinderedby the admission of the complete, improperly redacted video intervie w, and the district court erred in admitting it. And, more to the point, in my view, the State abused its prosecutorial power by introducing the full 33-minute video. Prosecutor s are called to be mini sters of justice, and as such, they shouldnot seek convictions at all costs. State v. Ramey , 721 N.W.2d 294, 300 (Minn. 2006) (“Prosecutors have an affirma tive obligation to ensu re that a defendant receives a fair trial, no matter how strong the evidence of guilt.”).

THISSEN, Justice (concurring). I join Part I of the majority opinion and in the concurrence of Chief Justice Hudson.