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 Attorney, Duluth, Minnesota, 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 whether a reasonable possibility exists that 

the error significantly influenced the verdict, not merely whether the other properly 

admitted evidence was sufficient to support the verdict. 
2 

2. The erroneous admission of the recorded interview was harmless because no 

reasonable possibility exists that the evidence significantly affected 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 impact of erroneously admitted evidence when it 

affirmed appellant Frank James Bigbear’s conviction for third-degree criminal sexual 

conduct. If we conclude that the analysis was incorrect, we must also 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 Minnesota presented four 

witnesses, including the victim, and submitted more than 10 exhibits. 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 after the sexual assault. After 

a 3-day trial, the jury found Bigbear guilty. 

 Bigbear appealed, arguing that the admission of the recorded 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 Minnesota Rules of Evidence. State v. Bigbear, No. 

A22-1104, 2023 WL 4169982, at *3–5 (Minn. App. June 26, 2023). Nonetheless, the court 

of appeals concluded that the error was harmless because “the jury could have reached the 
3 

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 the court of appeals was flawed because the 

court conducted an improper harmless-error review. Specifically, Bigbear asserts that the 

court of appeals erred by focusing solely on whether other properly admitted evidence 

sufficiently supported the verdict, rather than the correct standard, which is whether the 

erroneously admitted evidence substantially influenced the jury’s decision. He further 

contends that under the correct standard of review, the admission of the recorded interview 

was not harmless. We agree that the court of appeals employed an incorrect harmless-error 

analysis. After conducting the 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 reporter 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 investigator and a social worker, 

and the interview was recorded. The investigator also separately interviewed Mother and 

Mother’s boyfriend (“Boyfriend”) and recorded those sessions. The investigator learned 

that during the summer of 2019, Mother and Boyfriend witnessed Bigbear, who was then 
4 

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) (criminalizing the sexual penetration of a child between 

the ages of 13 and 16 when the perpetrator is more than 24 months 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 the investigator’s interviews 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 apartment where Mother and Boyfriend lived sometime 

before the fall of 2019. I.M. testified that Bigbear was at the apartment 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 that his penis went inside her body. She 

testified that she was not wearing any pants or underwear and that Bigbear was naked. 

Mother and Boyfriend interrupted 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 admitted that she had not been honest during the interview with 

the investigator but stated that she was being truthful in her trial testimony. I.M. did not 

identify which parts of the interview were not truthful. She also admitted on 

cross-examination that she had lied to Bigbear, telling him that she was 18 years old.2

1

 At the beginning of the summer of 2019, Bigbear 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 defense 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 the 
5 

Mother and Boyfriend testified at trial. They each identified Bigbear as the person 

they saw having sex with I.M. Each testified that they saw Bigbear on top of I.M., moving 

up and down under a blanket. When Mother and Boyfriend confronted him, they saw that 

he was naked. Bigbear said that he thought I.M. was 18. Boyfriend then punched Bigbear, 

and they threw him out of the apartment. The recorded video interviews of Mother and 

Boyfriend with the investigator were also introduced at trial without objection and were 

not challenged on appeal. Boyfriend’s recorded interview included an additional detail not 

in his trial testimony: While he was punching Bigbear after discovering 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 the 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 declarant testifies at the trial or hearing and is 

subject to cross-examination concerning the statement, and the statement is . . . consistent 

with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s 

credibility as a witness.” Minn. R. Evid. 801(d)(1)(B). 

4

 A hearsay statement that is not “specifically covered by Rule 803 or 804 but having 

equivalent circumstantial guarantees of trustworthiness,” is not prohibited by the hearsay 
6 

In the recorded interview, I.M. recounted what happened. Like her trial testimony, 

she identified Bigbear as the person who had sexual 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 with her and that Boyfriend punched Bigbear. 

Additionally, in her recorded interview, I.M. described what happened in more 

detail than in her trial testimony 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. also identified Bigbear in the 

recorded interview by showing the investigator a photo taken from Bigbear’s Facebook 

profile. She explained that she and Bigbear joked about sex, and that he said he wanted to 

have sex with her before they went into the bedroom. In her recorded interview, I.M. also 

called Bigbear a “pedophile” and a “pervert” and said that what happened was “gross” and 

“nasty.” I.M. also told the investigator that she got chlamydia5

 from Bigbear; she did not 

testify about chlamydia at trial. On cross-examination at trial, the investigator testified that 

he never saw a chlamydia diagnosis and a sexual 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 efforts,” and “the general purposes of these rules 

and the interests of justice will best be served by admission of the statement into evidence.” 

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 screaming at him. Bigbear testified that he believed he was being 

yelled at because he had fallen asleep in the apartment 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 Sentencing Guidelines. 

On appeal, Bigbear argued that admission of the recorded interview was reversible 

error. The court of appeals agreed that the recorded interview was inadmissible6

 under 

Minnesota Rules of Evidence 801(d)(1)(B) and 807 because it contained statements that 

were inconsistent with or entirely absent from 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 the same ‘verdict based on the other 

6

 The court of appeals’ conclusion that the 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 even when improper [evidence] is presented 

to the jury unless there is a ‘reasonable possibility that the wrongfully admitted evidence 

significantly affected the verdict.’ ” State v. Jaros, 932 N.W.2d 466, 472 (Minn. 2019) 

(citation omitted). The defendant bears the 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 focus only on evidence of guilt,” Townsend v. State, 

646 N.W.2d 218, 224 (Minn. 2002). This is because, crucially, “[i]n assessing whether an 

error is harmless, the question is not whether the [other] evidence was sufficient to support 

the conviction, but rather whether the error substantially influenced 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 that the error significantly affected the jury’s verdict. Smith, 

940 N.W.2d at 505.7

7

 Bigbear does not claim that any constitutional right was impacted by the error. In 

cases in which a constitutional right is involved, “[f]or such a [constitutional] violation to 
9 

Non-exclusive factors we consider to determine whether a reasonable possibility 

exists that the erroneously admitted 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 offered the evidence used it in 

closing argument, and (4) whether the defense effectively countered the evidence.” Smith, 

940 N.W.2d at 505. In addition, “[s]trong evidence of guilt undermines the persuasive 

value of wrongly admitted evidence.” Id. This analysis is fact-specific, 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 (considering the State’s other evidence 

on the issue, cautionary instructions, and the 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 sufficiency of the evidence. To be sure, 

the court began by citing the appropriate harmless-error standard of review. Bigbear, 

2023 WL 4169982, at *2 (“Under 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.”) (citation 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 reached 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 rendered was ‘surely unattributable’ 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 conducted 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 verdict had the interview been excluded. Id.

In short, although the court of appeals initially identified the correct 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, 365–66 (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 sufficient to support a jury finding with respect 

to the element of the offense on which the jury was erroneously 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 evidence is otherwise sufficient to support the 

verdict.’ ” 445 N.W.2d at 541. And we have since clarified that “[i]n assessing whether 

an error is harmless, the question 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 appeals 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 account for the fact that the jury heard and 

considered the erroneously admitted evidence. Instead, to assess harmless error we must 

consider all the evidence introduced as well as other illuminating factors (including the 

non-exclusive factors set forth earlier) and ask whether there is a reasonable possibility that 

the error significantly affected 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 (citation omitted) (internal 

quotation marks omitted). In doing so, we consider 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, and Bigbear’s counter of the evidence. See 940 N.W.2d 

at 505. We also consider whether 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 agree and, accordingly, in our analysis of each 

factor, we focus primarily on I.M.’s inconsistent or supplemental statements in the recorded 

interview because the statements that are consistent with her trial testimony 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 analyzing 
12 

the prominence of erroneously admitted evidence, we have previously considered, among 

other things, the relative number of transcript pages that the evidence occupies. See id. at 

506 (concluding that inadmissible evidence was only a “small part of the State’s 

presentation” because it spanned only 35 pages of a 1,380-page trial transcript). In 

addition, we have contemplated whether the evidence was used throughout 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 with police was prominent because the prosecutor 

mentioned it in the State’s opening statement, closing argument, and on direct and 

cross-examination of witnesses to point out inconsistencies in the defendant’s statements). 

Bigbear argues that the recorded interview featured prominently 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-minute 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 challenged statements only span about 12 pages 

of trial transcript.8

 More importantly, the recorded interview 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 mention 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 speaking to the investigator in 2019. In his direct testimony, 

8

 An additional 5 pages of the recorded interview are I.M.’s descriptions of the 

apartment layout that are not in dispute. 
13 

the investigator answered questions about his interviewing technique, exhibits created 

during the interview (a diagram of the apartment and a photo from Bigbear’s Facebook 

profile), and I.M.’s demeanor during the interview. Further, the prosecutor briefly 

mentioned I.M.’s interview in closing argument primarily to ask 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 circumstances, we do not believe that the video 

was given undue prominence at trial and, accordingly, this factor supports a conclusion 

that the error was harmless. 

 Persuasive Value 

When conducting a harmless-error review, 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 persuasive because it (1) added 

detail and context to bolster I.M.’s credibility, (2) included impermissible 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 through the trial testimony of 

I.M., the eyewitnesses, the investigator, 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 the error was not harmless because Bigbear has 

shown that some inadmissible portions of the recorded interview were quite persuasive. 

First, additional details from the erroneously admitted exhibit likely contained some 

persuasive value in making the circumstances of the assault more conceivable. In State v. 
14 

Wright, we concluded that erroneously admitted testimony impacted the verdict because it 

“elicited new information.” 726 N.W.2d 464, 477 (Minn. 2007) (citation omitted) (internal 

quotation marks omitted). But in that case, the inadmissible statement included the 

victim’s description of the weapon, the defendant’s threats, and the victim’s state of mind. 

Id. Here, the additional details are not as material. 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 her 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 testimony about the defendant’s threats was not 

harmless because admissible testimony about the threats was less “substantial” and 

“extensive,” and the inadmissible testimony “provided the key evidence” 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. testified to the “key” evidence at trial on the 

material element at issue—sexual penetration—and her testimony on that issue was 

consistent with Mother’s and Boyfriend’s eyewitness testimony and their unchallenged 

recorded statements with the investigator. Because there was cumulative evidence to prove 

sexual penetration, the recorded interview did not provide the “key” evidence on a material 

element of the offense. 

Second, inadmissible character evidence undoubtedly had persuasive effect and was 

inappropriately admitted. I.M. used inflammatory language, calling Bigbear a “pedophile” 

and a “pervert” in her interview. This name-calling is character evidence excluded by the 
15 

Minnesota Rules of Evidence because of its unfairly prejudicial impact. It is difficult to 

imagine how Bigbear could have rebutted this inadmissible character evidence without 

attracting more attention to it. That the State offered this clearly inadmissible portion of 

the video without redaction in a case alleging sexual assault was a significant misstep. We 

expect prosecutors, when seeking admission of a prior consistent statement—and district 

courts when admitting such evidence—to be vigilant in excising unfairly prejudicial, 

extraneous material before it is played for the jury. 

Third, the “extrinsic corroborating evidence”—I.M.’s recorded statements about 

Bigbear’s Facebook profile and about her chlamydia diagnosis—also had persuasive 

effect. On the one hand, I.M.’s statement that she had found Bigbear’s Facebook profile 

does not carry much weight because I.M., Mother, and Boyfriend all identified Bigbear as 

the perpetrator at trial. But conversely, I.M.’s recorded interview contained the only 

evidence of a chlamydia diagnosis after the sexual assault. If taken as true by the jury, her 

statement suggested that there is physical proof of the crime. Cross-examination of the 

investigator may have undercut the persuasive impact of that statement somewhat because 

he testified that he had not seen evidence of such a diagnosis and that no sexual assault 

examination of I.M. had taken place. But the investigator’s testimony may have just as 

easily suggested that he simply had not followed up about the diagnosis, not that he had 

ruled out the diagnosis or found I.M. uncredible on that point. Ultimately, I.M.’s recorded 
16 

statement about contracting chlamydia from Bigbear was sufficiently pointed that it was 

likely difficult to un-ring that bell with the jury.9

Fourth, improper vouching typically occurs when the State “intentionally elicited 

vouching testimony during trial and then used it in closing argument.” Van Buren v. State, 

556 N.W.2d 548, 551 (Minn. 1996) (holding that the trial testimony of three witnesses 

about who among the victim’s and defendant’s families believed the victim’s allegations 

was “improper vouching”). Unlike other cases that we have decided, in which the victim 

did not testify at trial, here, neither the investigator nor the social 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 officer who relayed the on-scene statements 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 (“You know [the investigator] doesn’t make judgments about kids when 

they tell him gross things that happened, it’s just a fact.”) in the recorded interview could 

reasonably have been understood by the jury as contemporaneous expressions of sympathy 

and support for 14-year-old 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 support as the investigator’s belief that I.M. was 

9 Again, this additional, prejudicial statement 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 sexual assault. Although the State did not reference these 

statements in closing, the jury may have been influenced by them. 

 Fifth, we do not believe that the recorded video was highly persuasive in evoking 

the jury’s sympathy for I.M. Had the video been properly redacted and limited to 

statements consistent with I.M.’s trial testimony, the jury still would have seen her 

appearance as a 14-year-old and her emotions and demeanor when talking about the 

assault. Further, the investigator described 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 instructed 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 consideration, some of the wrongly admitted 

evidence in the recorded interview had enough persuasive value to cause us to weigh this 

factor as supporting a finding that its admission was harmful. 

 Use in Closing Argument 

 We also consider whether and how the offering party used the erroneously admitted 

evidence in closing argument. Smith, 940 N.W.2d at 505. Bigbear contends that the 

video’s prominence was exacerbated by the prosecutor’s mention of it nine times during 

 
18 

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 sex and body parts, and the consistency of her 

statements. But these are not inherently prejudicial or improper reasons for the prosecutor 

to reference the video. If the consistent portions of the video had been properly admitted, 

the jury still would have seen a younger version of I.M., her emotions and tears while being 

interviewed, and her disgust when talking about sex and body parts (which was consistent 

with, albeit more pronounced than, her trial testimony). 

Further, the prosecutor made only one reference in closing to a statement in the 

recorded interview that was not in I.M.’s trial testimony concerning Bigbear’s picture on 

his Facebook profile. Because Bigbear was identified by eyewitness testimony and 

because Boyfriend also testified in his recorded interview to seeing Bigbear’s Facebook 

profile, the prosecutor’s mention of this detail in closing argument would not have affected 

the verdict. Because the prosecutor referenced the recorded interview in closing argument 

primarily for evidence that was also introduced by other witnesses 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 countered 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 remember enough at trial to be effectively 

cross-examined. Additionally, he maintains that because the scope of I.M.’s direct 

examination did not include details from the video, he was unable to question her about it. 

The State contends that Bigbear countered the video by highlighting gaps in I.M.’s memory 

and maintains that it is not fatal to harmless-error analysis if “defense counsel did not 

[counter] well.” 

We agree with Bigbear that this 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-examination of I.M. and the investigator, as well as in closing 

arguments, ultimately, we conclude Bigbear did not effectively counter 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 (Minn. 1997). “Strong evidence 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 absence of physical, medical, and 

DNA evidence; and the lack of any incriminating statements to investigators. The State 
20 

refutes Bigbear’s hypothesis about the length 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 after the sexual assault. 

Although harmless-error review considers the entire record, including evidence 

inconsistent with a guilty verdict, this factor focuses exclusively on evidence of guilt. The 

following trial evidence is overwhelming evidence of Bigbear’s guilt of criminal sexual 

conduct: Bigbear admitted that he was in Mother’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 admitted that Boyfriend woke him up very angry; 

Bigbear admitted that he was at least 30 years 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 with her and his penis entered her body; Boyfriend testified 

that he observed that the bedroom door was closed 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 top of I.M. moving up and down under a blanket; Mother also 

testified that Bigbear was on top of I.M. moving in a back and forth motion as if having 

sex; Bigbear was naked and I.M. was only wearing a shirt; when Boyfriend and Mother 

confronted them, Bigbear immediately jumped off 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 evidence of guilt, which reached the jury through 
21 

the testimony of three witnesses, including the victim, and the recorded statements of 

Mother and Boyfriend. Because the evidence was overwhelming against Bigbear, this 

“very important” factor weighs heavily in favor 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 Bigbear sexually assaulted I.M., we conclude that 

Bigbear did not meet his burden of showing that there is a “reasonable possibility that the 

wrongfully admitted evidence significantly 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 regarding the video is ultimately 

harmless to the verdict, we do not condone the 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 carefully scrutinize prejudicial 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 the 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 sympathy from the jury, and undercut Bigbear’s 

testimony with rank, inadmissible character evidence. I join Part I of the court’s opinion 

and narrowly concur that the error here was harmless. But I write 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 foundational 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 statements that do not fall within an enumerated exception. 

Minn. R. Evid. 802; see State v. King, 622 N.W.2d 800, 808 (Minn. 2001) (“Statements 

that fall within a ‘firmly-rooted’ 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 recorded interview was inadmissible under Rule 

801(d)(1)(B) and Rule 807. 

1

 As the court notes, “[t]he court of appeals’ conclusion that the evidence was 

erroneously admitted is not before this court because the State did not file a conditional 

cross-petition for review.” See supra at 7 n.5. 
C-2 

When the Rules are broken and evidence is erroneously admitted, we must carefully 

consider any impact on the fairness of the proceedings. To do so, we must determine 

whether there is a “reasonable possibility that the wrongfully admitted evidence 

significantly affected the verdict.” State v. Jaros, 932 N.W.2d 466, 472 (Minn. 2019) 

(citation omitted) (internal quotation marks omitted). Our resolution 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) the prominence and presentation 

of the evidence, (3) whether the evidence was used in closing argument, and (4) whether 

the evidence was effectively 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 evidence of guilt undermines the persuasive value of wrongly 

admitted evidence.” Id. 

The erroneously admitted video interview was “highly persuasive” and afforded the 

State an opportunity to introduce inadmissible corroborative 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 persuasive 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 indicated that Bigbear had infected her with chlamydia. This 

statement was plainly inadmissible hearsay that conveyed damaging evidence not 

established by any other evidence in the record. Compounding the damage was the obvious 

risk that the video’s discussion of the chlamydia infection implied the existence of extrinsic 
C-3 

professional medical evidence to substantiate the diagnosis. Yet at trial the State introduced 

no such evidence of a chlamydia diagnosis or treatment. 

Second, the video included inadmissible character evidence in which the victim 

referred to Bigbear as a “pedophile” and a “pervert.” This type of inflammatory language 

is clearly prohibited by the Minnesota Rules of Evidence and demonstrates the State’s 

inexplicable failure to redact the video interview to ensure that Bigbear received a fair trial. 

The persuasive value of this adverse character evidence is particularly pronounced in light 

of juror sentiments about the nature of the offense that surfaced during voir dire.2

 

Third, the video improperly evoked the sympathy 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 video 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 trial. The State’s reliance on the erroneously 

admitted video interview to evoke the jury’s sympathy was improper and contributes to the 

2

 During voir dire, multiple seated jurors expressed revulsion upon learning the nature 

of the crime. For example, one juror stated that the charge made her “nauseous” and that 

she had an “emotional” and “physical, 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 persuasive 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 before the assault and did not describe the assault itself with 

any detail. The video interview, however, neatly filled those gaps in the State’s case 

because I.M. gave a comprehensive account of her experience with 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 descriptions of what clothes they were wearing, 

how clothing was removed, and how long the assault lasted. These 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 video interview for the express 

purpose of bolstering I.M.’s credibility, and in ruling to admit it, the district court explained 

that the video interview helped “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 her trial testimony and 

showed that her testimony was credible. 

3

 Seated jurors also expressed a predisposition to feel sympathy for 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 reaction was that 

“it’s very sad to hear that this happened.” 
C-5 

I do not agree with the court’s reasoning that because the additional details did not 

go to material elements of the crime, they were less persuasive. As the State explained 

when arguing for admission of the video interview, I.M.’s initial outline of the crime to law 

enforcement is evidence of a material fact. Further, the additional details in the video 

provided specific, compelling reasons for the jury to credit the victim’s account of the 

assault, which is precisely what the State encouraged the jury to do. Here, as in many 

sexual assault prosecutions, witness credibility strikes at the very heart of the case and has 

undeniable persuasive value. By discounting the value of details that bolster witness 

credibility simply because they do not bear on the “material elements” of the charged 

offense, the court trivializes the persuasive 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 persuasive” and this factor weighs toward 

concluding that the error was not harmless. 

 Not only was the erroneously admitted video evidence highly persuasive, it was also 

unmistakably prominent. See Smith, 940 N.W.2d at 505–06. We have previously analyzed 

the prominence of erroneously admitted evidence by measuring the relative number of 

transcript pages that the challenged 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 number 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 inadmissible 
C-6 

statements therein span a greater portion of the trial transcript than the whole of her trial 

testimony on direct examination. Indeed, when compared 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 weighs toward concluding that the error was 

not harmless. 

 Additionally, the prominence of the inadmissible video 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 erroneously admitted evidence during closing argument. The State 

impermissibly pointed to the video three times to show consistency between I.M.’s video 

statement and her trial testimony, thereby establishing I.M.’s credibility and suggesting that 

the State had met its burden on each element. In this case of competing narratives, 

credibility was essential to discerning the truth, and the State’s repeated references to the 

erroneously admitted video interview and inadmissible 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 recognizes, Bigbear was not able to “effectively 

counter[] the evidence.” Smith, 940 N.W.2d at 505. This factor 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 “pedophile,” and because the video interview was 

not broadcast to the jury until after I.M. testified, Bigbear had no opportunity to cross-
C-7 

examine I.M. about the inconsistent statements and additional information contained 

therein without recalling her to testify. Whether the district court would have permitted 

Bigbear to recall the minor victim and question her about the inconsistencies is unknown, 

but it is clear that the State’s decision to present the complete video 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 the 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 evidence. Accordingly, this factor weighs 

towards concluding that the 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 guilt to support the jury’s verdict. See State v. Juarez, 

572 N.W.2d 286, 291 (Minn. 1997). Here, I agree with the court that the cumulative weight 

of unchallenged evidence of Bigbear’s guilt is strong. In addition, this sexual assault case 

presents the rare instance in which the State presented eyewitness testimony of not one, but 

two individuals who—aside from the victim—directly observed the crime. Both 

eyewitnesses were interviewed by the investigator and recordings of their interviews were 

admitted at trial; much of those interviews was consistent with their trial testimony two 

years later. Considering the eyewitness testimony, I see no reasonable possibility that the 

erroneous admission of I.M.’s video interview substantially affected the jury’s verdict. I 

thus agree with the court that the error was harmless. 
C-8 

But we must remember that justice is a process, not a result. And the process here 

should concern us all because it undermined the public’s trust and confidence in the judicial 

system. Bigbear’s ability to defend himself was undoubtedly hindered by the admission of 

the complete, improperly redacted video interview, 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. Prosecutors are called to be ministers of justice, and 

as such, they should not seek convictions at all costs. State v. Ramey, 721 N.W.2d 294, 300 

(Minn. 2006) (“Prosecutors have an affirmative obligation to ensure 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.