concurring specially.
I concur specially. It would have been the better practice to allow appellant to produce the excluded evidence of the victim’s venereal disease. The majority correctly points out in its opening paragraph that due process in a fair trial requires the right to present material exculpatory evidence to the jury. If the defendant’s offer of proof is not perfect, but meets reasonable standards of materiality and relevance, the evidence should go to the jury for whatever weight the jury accords it. That happens frequently when a defendant strives to keep out so called Spreigl evidence of prior bad acts, and either the prosecution’s notice of intent to produce Spreigl evidence or its foundation has a *202modest gap, but the trial court finds that, overall, the evidence is relevant and should benefit the jury. The same should be true when a defendant offers such evidence.
In addition, a specific statute authorizes introduction of such evidence on the issue of identity. Minn.Stat. § 609.347, subd. 3(b) (1982). Appellant gave the requisite pretrial notice of his intention to present the evidence, pursuant to Minn.Stat. § 609.-347, subd. 4 (1982). Appellant’s offer of proof was a statement that he had an expert ready to testify there was “good probability” that anal gonorrhea could be transmitted during vaginal intercourse. The prosecution argues that the notice and foundation were somewhat flawed because the medical reference test cited by appellant indicated the probability of transfer was twenty percent or, arguably, less. This argument goes only to weight, not admissibility. Had appellant been allowed to offer such evidence, it would have been perfectly proper for the prosecution to cross-examine appellant’s expert or bring in its own experts to attempt to discredit the statistical evidence.
Minn.Stat. § 609.347, subd. 3(b) does not require the offered evidence of specific instances of sexual activity showing the source of disease to be “overwhelming” or “clear beyond a reasonable doubt.” The statute sets no standard, but simply uses the term “evidence.” Under the statute, such evidence of a sexual transmitted disease is admissible on the question of identity. Here, there was adequate evidence that appellant did not have gonorrhea, that the victim did, and that, if appellant had sexual intercourse with her, there was a statistical probability he would have contracted it. Unlike State v. Dickson, 297 Minn. 486, 209 N.W.2d 785 (1973), here there was medical evidence that appellant did not have the disease.
I suggest that, under our holding in State v. Hagen, 391 N.W.2d 888 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Oct. 17, 1986),1 the better course would have been to allow admission of appellant’s evidence for whatever weight the jury would give it. However, because of the questions the prosecution raised on foundation, and because of the discretion afforded a trial court in assessing offers of proof and relevancy, I do not find reversible error.
Likewise, on issue 2, the allegation that the prosecutor’s closing argument was so improper that appellant was denied his right to a fair trial, I would not find reversible error. In final argument and instructions, both counsel and the trial court gave the jury substantially correct instructions on burden of proof. However, I disagree with the majority’s treatment of this issue. I find that the prosecutorial remarks in issue were the result of either inexperience or overreaching, and constituted blatantly improper and incorrect final argument.
In closing the prosecutor said, on the issue of burden of proof:
Interesting enough though, and I will be touching upon this later, when the defendant said to the police officer, it wasn’t me that did it, I don’t know this woman, he then took himself out of the position to be able to argue to you that there was no penetration or no consent because he claims he wasn’t even there. So the real issue in this case is whether we have the right man. And that is the only issue in this case. So when K.H. told you that she was penetrated, you must take that as given. And when she said that this was without consent, that’s also true.
(Emphasis added).
It was absolutely improper for the prosecution to state to the jury that when K.H. testified she was penetrated, “you must take that as given.” A jury in a criminal case never has to accept a victim’s claim that he/she was penetrated, robbed, or beaten. Those are issues of credibility and proof for a jury to accept or disregard, whether or not the defendant takes the *203stand in his own defense, and whether or not he puts forth any affirmative evidence. It was within the province of this jury to return a verdict of not guilty, either because they felt appellant was not the perpetrator and they believed his alibi, or because they disbelieved his alibi but, despite the victim’s uncontradicted testimony, they did not believe the victim when she testified she was penetrated without consent.
The prosecution compounded the problem by telling the jury that since “she said” there was no consent on her part, it must be true. This again is blatantly improper argument. The jury is entitled to decide the issue of consent, if applicable, based on its own assessment of the victim’s testimony, notwithstanding the fact that defendant did not take the stand and claim consent. The majority in its opinion did not set out the prosecutor’s challenged statements verbatim. It glossed over them. In addition to the above, the prosecutor went on to state:
But through the cross-examination ... it sort of sounded like the defendant attorney was saying not only weren’t we there but this didn’t happen. Well, if he is not there he is in no position to claim one way or the other whether it happened. All he can say is he wasn’t there, somebody else did it. So it’s like him saying I wasn’t there, but if I was, I didn’t do it. I mean, you can’t have it both ways. You can’t play with the truth like that. And if you hear him saying I wasn’t there but if I was there I didn’t do it, then that’s an inconsistent defense. You can’t. The truth isn’t something that you have alternative theories for. There is only one version of the truth.
Once again, the prosecutor overstepped the bounds of final argument. A defendant can present to a jury alternative theories of defense which, on their face, are inconsistent, but which, if either is believed by the jury to be true, can result in an acquittal. In fact, it is common in cases of sexual assault for defendants to attack the issue of identity, and, at the same time, put forth to the jury, either through direct evidence or through the elicitation of evidence on cross-examination that, if the alleged act took place, it was with consent.
The defendant runs the risk that the jury, in deliberations, will seize upon this same inconsistency and use it to weaken either theory of not guilty. However, this is a risk a defendant is entitled to take. For the prosecutor, as here, to tell the jury that a defendant cannot have alternative theories or inconsistent defenses was improper and objectionable per se.
As stated above, correct instructions on the burden of proof were finally given to the jury, and thus, although I find error, I do not find reversible error, taking the record as a whole.
The majority notes that defense counsel failed to object when the offending statements were made, but then comes to the improper conclusion that, therefore, the statement must have been “neither obvious nor important.” Whenever a prosecutor makes an incorrect statement to the jury, and impinges on a defendant’s right not to take the stand and his right not to have to explain away the evidence the state produces, this raises constitutional issues, including the fifth amendment right not to take the stand and possibly incriminate oneself,2 the sixth amendment right to a fair trial,3 and is important.
Such issues of constitutional magnitude are reviewable, although not raised at trial. See State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983) (although defense counsel did *204not object, and failed to “preserve” claim of error for appeal, error could be considered on appeal where error was “plain error affecting substantial rights”).
. "Where defendant charged with rape claims to have had no contact with complainant, evidence rule strictly limiting admissibility of evidence concerning rape victim’s previous sexual conduct does not bar admission of evidence which is directly relevant to negate act with which defendant is charged.”
. U.S.Const. Amend. V:
No person * * * shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law * * *.
. U.S.Const. Amend. VI.:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.