(dissenting).
I respectfully dissent. During Lanny David Green’s trial for first- and second-degree criminal sexual conduct, an inaccurate transcript of Green’s police interview was introduced into evidence. The effect of this transcription error was to turn a meaningless utterance into a confession of the key element distinguishing the two charges — sexual penetration versus sexual contact. Because I conclude that a conviction based on a typographical error is fundamentally unfair under the circumstances of this case, I would reverse Green’s conviction for first-degree criminal sexual conduct and remand this case to the district court for further proceedings on that charge or, alternatively, for conviction and sentencing on the second-degree criminal sexual conduct verdict.
Before turning to the key issue in this case, I believe that it is both helpful and important to clarify what is not at issue. This case is not about whether Green committed and should be punished for a terri*921ble crime against an innocent 4-year-old girl. The evidence presented at Green’s trial indicates that Green had sexual contact with the alleged victim. I conclude that the evidence is more than sufficient to support the jury’s verdict of guilty for second-degree criminal sexual conduct, and I would affirm that verdict. Rather, this case is about whether our court will remain mindful of one of our most solemn obligations — to ensure the basic fairness of the procedures used to deprive a citizen of his liberty.
Green was initially charged with one count of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a) (2006). On the morning of the first day of trial, however, the State amended the complaint to include an additional charge of first-degree criminal sexual conduct in violation of MinmStat. § 609.342, subd. 1(a) (2006). The difference between these two charges is that the first-degree offense requires “sexual penetration” whereas the second-degree offense requires “sexual contact.” Compare Minn.Stat. § 609.342, subd. 1(a), with Minn.Stat. § 609.343, subd. 1(a). As relevant to the present proceedings, sexual contact includes “intentional touching by the actor of the complainant’s intimate parts” that is “committed with sexual or aggressive intent.” Minn.Stat. § 609.341, subd. ll(a)(i) (Supp.2007). Sexual penetration, on the other hand, includes an “intrusion however slight into the genital or anal openings” of the victim by a part of the actor’s body. Minn.Stat. § 609.341, subd. 12(2)© (2006).
Both charges in this case were based on an allegation that Green sexually assaulted the alleged victim — a 4-year-old girl— while helping her change out of her swimsuit after swimming at a family picnic. The issue in this appeal centers on Green’s interview with Deputy Nachreiner during the police investigation into this allegation. During this interview, Green admitted that he “open[ed] her up a little bit” but stated that he was just checking to “make sure she was clean.” According to the transcript of this interview, which was prepared by the State, Green gave the following answer when asked where exactly he put his two fingers:
Well I, oh I don’t know, I suppose in, I can’t remember if it was this way or that way, but she was on, she was on the ■ couch and probably this way and just I checked to make sure there wasn’t anything you know by the top part.
(Emphasis added.) The transcript, in this-form, was admitted into evidence, the relevant parts were read to the jury, and it was taken into the jury room. But on appeal the State concedes that the transcript was incorrect and that the tape of the interview reveals that Green actually said, “I suppose uh” or “I suppose win,” not “I suppose in.” Thus, the State’s mis-transcription of this one sound had the effect of changing a meaningless utterance by Green into a confession of the critical element distinguishing first- and second-degree criminal sexual conduct — sexual penetration.
The majority suggests that Green’s conviction for first-degree criminal sexual conduct is not fundamentally unfair because “the strength of the [other] evidence presented against Green” rendered the error insignificant. But outside of the meaningless utterance that the State turned into a confession, the evidence at Green’s trial consisted only of statements made by Green that he had “opened [the alleged victim] up a little bit” and “cleaned her out,” and a statement by the alleged victim to her mother that Green had touched her in the genital area. While an admission to “cleaning] her out” could be interpreted to include penetration, the meaning of this *922phrase in the context of this case is not entirely clear. Thus, although the other evidence certainly suggests contact with the alleged victim’s intimate parts, the only unequivocal evidence presented to the jury that Green had penetrated the alleged victim was the inaccurate statement from the transcript of Green’s interview with Deputy Nachreiner.
The effect of the transcription error in this case was amplified by the State’s repeated emphasis on the inaccurate statement. While cross-examining Green, the State highlighted the erroneous confession by reading Deputy Nachreiner’s question and instructing Green to recite his response from the transcript “[w]ord for word.” Moreover, the State repeatedly highlighted the inaccurate confession during the State’s closing argument. At one point, the State described the erroneous confession as “the most telling evidence of penetration” and read Green’s purported answer to the jury. The State also suggested that the jury “ought to take [Green] at his word when he was asked where his fingers went, and he said, T suppose they went in.”’ Finally, during rebuttal argument, the State responded to the defense’s argument that the evidence of penetration was unclear by stating:
When you go back in the jury room, I want you to read that question because the question is, ‘Where did your fingers go? Where exactly did your fingers go?”. And that’s what he responds to. “Oh, I don’t know, I suppose in.” And I don’t think that’s murky, or ambiguous, or anything else. I think it is clear.
Under these circumstances, where the erroneous confession is the only unequivocal evidence of penetration and this error was repeatedly emphasized by the State, I cannot agree with the majority’s conclusion that the erroneous confession “likely had no significant impact on the jury’s verdict.” 1
Even more troubling is the majority’s assertion that, despite the uncontradicted fact that the State created the transcript of the interview and was therefore the party that turned a meaningless noise into a confession, “Green bears the greater responsibility for his inaccurately transcribed statement being put in front of the jury.” The majority first attempts to support this conclusion based on the fact that Green’s attorney introduced the erroneous transcript into evidence. While this fact is undisputedly true, the record shows that the State had notified Green’s attorney before trial that it possessed “[confessions, admissions, or statements in the nature of confessions made by the defendant,” and the erroneous transcript of Green’s police interview was included with that disclosure. Once Green decided to testify in his own defense, it was reasonable for Green’s attorney to anticipate that the State would confront Green with the transcript on the witness stand. Indeed, as the trial played out, the State did in fact confront Green with the erroneous transcript during cross examination. Thus, the fact that Green’s attorney made the strategic decision to defensively introduce the transcript into evidence before his client was confronted with it on the witness stand does not appear sufficient to shift the responsibility for the error away from the State, which actually made the error.
*923The majority also attempts to shift the blame to Green by focusing on the fact that Green’s attorney did not listen to the recording of the interview before introducing the transcript into evidence. But in preparing to present the State’s case, the prosecuting attorney either: (1) also failed to listen to the recording; (2) listened to the recording but failed to discover the transcription error; or (3) discovered the error but failed to correct it. Because the State thus had at least as much of an opportunity to discover and correct the transcription error as Green’s attorney, and because the State has the burden of proving each element of a criminal offense beyond a reasonable doubt, I believe that it is unfair to hold Green’s attorney to a higher standard in this regard by shifting the responsibility for the error away from the State and onto Green.
Finally, the majority attempts to support its conclusion that Green bears the greater responsibility for the introduction of the erroneous confession by noting that Green failed to challenge the accuracy of the transcript on cross-examination. While on the witness stand, the State confronted Green with a document that it asserted was an accurate transcript of an interview that Green had given months before. This confrontation occurred during a cross-examination in a trial where Green was facing the possibility of a substantial prison sentence. In these highly stressful circumstances, Green did not directly challenge the authenticity of the transcript. Nevertheless, he did continue to challenge the truth of the allegation that he had penetrated the alleged victim. Yet the majority concludes that Green bears more responsibility for the error because he did not discover and challenge the transcription error made by the State. This conclusion ignores the realities faced by an individual in such circumstances and unfairly shifts the responsibility for the error away from the party that actually made it.
Minnesota Rule of Criminal Procedure 26.04, subd. 1, allows a new trial “[i]f required in the interests of justice.” In this case, Green was charged with both fírst- and second-degree criminal sexual conduct. The evidence presented at Green’s trial indicates that Green committed a terrible crime — second-degree criminal sexual conduct — by engaging in sexual contact with a 4-year-old girl, and I agree that Green should be punished for that offense. But the only unequivocal evidence of penetration presented to the jury in this case was the inaccurate transcript of Green’s police interview that was prepared by the State, admitted into evidence, and repeatedly emphasized by the State. Thus, with respect to the higher first-degree charge, it is hard to imagine many stronger cases for a new trial “in the interests of justice” than a conviction based on the State’s transcription error that changed a meaningless utterance into a confession of the defining element of that crime. If in a case like this we ignore our solemn obligation to ensure the fairness of judicial proceedings and refuse to step in to see that justice is done, who is left to perform this duty? Accordingly, I would reverse Green’s conviction for first-degree criminal sexual conduct and remand this case to the district court for further proceedings on that charge or, alternatively, for conviction and sentencing on the second-degree criminal sexual conduct charge.
. My conclusion that the erroneous confession cannot be said to be harmless in this case does not mean that the evidence against Green, including Green’s actual statements during his police interview, would not be sufficient to sustain a guilty verdict for first-degree criminal sexual conduct if the evidence were presented to a jury without the inaccurate confession presented in this case.