(concurring).
I concur in the affirmance of Goelz’s conviction but write separately because I believe the OFP was admissible to impeach Goelz’s claims of self-defense and peaceful character and to repair the credibility of the impeached State witness. At trial, Goelz’s former spouse testified about incidents of domestic abuse that occurred during their marriage. She described one incident during an argument, after they had been drinking, when she was in the kitchen cooking. Goelz threw the food around the kitchen, tackled her as she was trying to flee, and choked her. He said he was going to kill her, snap her neck, and shoot her and her children and anyone who had ever crossed his path. She testified that this incident led to the OFP that ordered Goelz to participate in an anger management program.
In testifying on his own behalf, Goelz denied the incidents of domestic abuse described by his former spouse during direct examination. With regard to the OFP incident, he said that they were in the kitchen arguing when she started throwing glasses around. He testified that she grabbed a knife from the kitchen sink, waved it around and stabbed a stereo speaker. After that, he “grabbed a hold of her, kind of like around her neck and tried to subdue her to take the knife away from her so [he] didn’t get stabbed.” He testified that he agreed to the OFP, telling the judge “that’s fine.” Goelz called several character witnesses who testified as to his peaceful and truthful disposition and also as to the abusive and untruthful disposition of his former spouse.
I believe the foregoing permitted admission of the OFP to show that it was Goelz’s former spouse who was the petitioner on that document and that it was Goelz, and not his former spouse, who had the anger management issues. See 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:85 (3d ed.2007) (explaining impeachment by contradiction). Exclusion of the OFP, in my view, would have left the jury with an incomplete and perhaps even distorted picture of what had occurred. Further, the OFP evidence had a bearing on a matter of substance. That *261incident was part of a pattern of domestic violence that ultimately ended in the death of Goelz’s girlfriend, with Goelz shooting her as she retreated to the basement, following her downstairs and shooting her again as she crouched under the pool table.
As for the admission of the evidence in the State’s case-in-chief, I believe that was not inappropriate. Ordinarily impeachment is accomplished on cross-examination or in rebuttal. But courts also “disfavor the deliberate tactic of ‘lying in the weeds’ in anticipation of an ambush, and it is within a trial court’s discretion to exclude rebuttal if it concludes that the prosecution has acted unfairly.” United States v. Calvert, 523 F.2d 895, 912 (8th Cir.1975). Here, in his opening statement, defense counsel outlined Goelz’s defense, including evidence expected to rebut the State’s OFP evidence. Under these circumstances, I do not believe the admission of the OFP through the State’s witness amounted to improper bolstering. While I do share the concern that past-acts evidence warrants careful regulation under Minn. R. Evid. 403, given the defense in this trial, I would conclude that the admission of the OFP was not an abuse of discretion.