This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Timothy J. Otis,




Filed August 22, 2000


Halbrooks, Judge


Dakota County District Court

File No. K3972715



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of unauthorized use of a motor vehicle, contending that the trial court abused its discretion in limiting appellant’s cross-examination of the victim.  Appellant argues that, as a result, he was unable to present his theory of the case fully.  Because the trial court exercised sound discretion in limiting the scope of cross-examination, we affirm. 


            On Saturday, November 22, 1997, Kevin Brown’s Jeep Cherokee was parked in his driveway with the keys left on the floor of the vehicle.  Late that evening, the vehicle was taken from the driveway.  Brown saw the truck pull away.  He could not see who was driving, but assumed it was appellant Timothy J. Otis and called the police.  Brown was appellant’s former employer and neighbor.  Brown had previously given appellant standing permission to use the vehicle, but testified that was no longer the case.

            The following Monday, Brown went to appellant’s home to look for his truck.  Appellant first denied taking the vehicle.  Later that morning, appellant confessed to Brown and Brown’s wife that he had taken the truck.

            On Monday afternoon, Brown learned that the police had recovered his truck from a motel parking lot in Richfield, Minnesota.  Brown then returned to appellant’s house and told appellant that he knew where the truck was and was on his way to retrieve it.  Brown convinced appellant to come along.  Brown then drove appellant to the Eagan police department.  In response to questioning by an officer, appellant admitted that he had taken the vehicle and driven it to St. Paul.  He was then placed under arrest and charged with theft of a motor vehicle and unauthorized use of a motor vehicle. 

Appellant’s theory of defense was that Brown had wrongfully accused him of taking the vehicle in order to get money from appellant.  In support of his theory, appellant sought to introduce evidence of Brown’s 1994 felony conviction for theft.  Appellant asserted that Brown’s felony-theft conviction involved the “swindling” of an elderly woman out of $16,000, and was, therefore, strong evidence of his dishonesty as a character trait.  Appellant had hoped to combine this information with evidence that Brown offered to drop the charges against appellant in exchange for payment of $1,200.

            The trial court considered and ruled on this evidentiary issue prior to trial, stating:

            This is not an instance where the facts of the underlying conviction are probative to the case.  The prejudice outweighs the probative value, and I will not allow, essentially, reverse Spreigl, which is offered as character evidence, essentially, to undermine the character of the witness in this trial.  I will allow the witness, Mr. Brown, to be impeached with the conviction, the fact that he has been convicted of theft in 1994, and that this is a felony conviction or a felony offense. 


Based on the trial court’s ruling, defense counsel asked Brown the following two questions on cross-examination:

Q.        You were involved with the criminal justice system in 1993 and ’94; is that right?

A.        Yes.

Q.        You were charged and convicted of a felony theft; is that right?

A.        Yes.


            On May 19, 1999, appellant was acquitted on the charge of theft of a motor vehicle, but convicted on the charge of unauthorized use of a motor vehicle.  He was subsequently sentenced to 60 months pursuant to Minn. Stat. § 609.1095, subd. 4 (1998), the career-offender statute.  This appeal follows. 



            A trial court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the trial court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). 

            Minn. R. Evid. 609(a) provides that:

For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.


Generally, when evaluating whether to admit a prior conviction of a prosecution witness, the major concerns of the trial court

are to protect the witness from being harassed and unduly embarrassed, the jury from being confused and misled, and everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged trial.  Based on concerns about such things as harassment, decision making on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant, the trial court possesses wide latitude to impose reasonable limits on cross-examination of a prosecution witness. 


State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995) (citations omitted).  But evidence of a prior conviction “for any crime directly involving dishonesty or false statement is automatically admissible for impeachment purposes” under Minn. R. Evid. 609(a).  State v. Sims, 526 N.W.2d 201, 201 (Minn. 1994).  Here, the trial court properly allowed Brown to be cross-examined regarding his prior conviction under 609(a). 

            Generally, the scope of cross-examination is left largely to the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  But this court has previously concluded that “Minn. R. Evid. 609(a)(2) * * * overrides the district court’s general discretion to limit the scope of cross-examination.”  State v. Head, 561 N.W.2d 182, 186 (Minn. App. 1997), review denied (Minn. May 28, 1997).  This does not mean that the scope of cross-examination is unlimited or that the trial court’s discretion is non-existent with regard to cross-examination of a witness regarding prior convictions involving dishonesty.  Our supreme court recently reaffirmed that the scope of cross-examination must be left largely to the discretion of the trial court “depending upon the circumstances.”  State v. Griese, 565 N.W.2d 419, 426 (Minn. 1997) (quoting State v. Norgaard, 272 Minn. 48, 51, 136 N.W.2d 628, 631 (1965)).  In this instance, the trial court carefully weighed the probative value of admitting the details of Brown’s prior conviction and found its potential for prejudice outweighed its probative value.  We conclude there was no abuse of discretion. 

            Even if we were to conclude the trial court erred in the limitations it placed on the cross-examination of Brown, the error is harmless if this court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.


State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). 


Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crimes charged.  State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995).  In reviewing a conviction for sufficiency of evidence, we do not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume the jury believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). 

            In the instant case, even if the jury had concluded that Brown was not credible as a result of a more extensive cross-examination, the state presented the testimony of other witnesses who corroborated Brown’s testimony.  In addition, other witnesses testified to appellant’s admission that he took the vehicle from Brown’s property.  Finally, with regard to the proposed testimony of Brown’s offer to drop the charges in exchange for $1,200, it was undisputed that Brown got his truck back with approximately $1,000 in damage to it.  Thus, any potential prejudice in the trial court’s restriction of the scope of the cross-examination of Brown would be harmless error. 


            In his pro se brief, appellant raises additional issues.  Appellant asserts indirectly that he was dissatisfied with his attorney, thereby asserting ineffective assistance of counsel.  There is a “strong presumption” that an attorney’s performance “falls within the wide range” of what is “reasonable professional assistance.”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Appellant has not demonstrated how his counsel’s handling of the case failed to meet the objectively reasonable standard or altered the outcome of the trial. 

            Appellant argues that the trial court’s decision to exclude Cynthia Cole’s testimony was prejudicial to his case.  Cynthia Cole’s testimony was to consist of her opinion with respect to Brown’s ability to tell the truth and his reputation in the community as far as she knew it.  Again, the trial court’s evidentiary rulings will not be overturned absent a clear abuse of discretion.  Ihnot, 575 N.W.2d at 584.  The trial court properly concluded that, because Brown’s credibility was being attacked by way of his prior conviction, Cole’s testimony, which was based on the same incident, was unnecessary. 

            Appellant challenges the trial court’s exclusion of certain testimony by Dawn Erchul, who, in addition to the testimony that she gave, would also have testified that appellant told her that the victim, Kevin Brown, threatened to break appellant’s legs if he did not confess.  The trial court properly determined that this particular testimony was hearsay and not subject to any hearsay exceptions. 

            Appellant challenges his sentencing under the career-offender statute claiming that his criminal record was inaccurate.  Appellant offers no evidence or documentation in support of this assertion. 

            Appellant claims that his case did not meet the statutory requirements for sentencing as a career offender.  Appellant was sentenced to 60 months, which was an upward durational departure.  The trial court based its sentencing departure on Minn. Stat. § 609.1095, subd. 4 (1998), which provides in relevant part the following:

Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.


(Emphasis added).  Appellant had 12 prior felony convictions.  The trial court concluded that appellant’s “entire adult life had been spent not only in a life of chemical dependency, but also in a life of crime.”  It further concluded that the current offense was part of that ongoing “pattern of criminal conduct.”  The trial court clearly complied with the statute in its analysis and sentencing. 

Finally, appellant challenges the admission of the confession he gave to police.  There is nothing in the record to indicate that appellant’s confession was coerced.  “[A] confession is not involuntary unless there is evidence that the suspect’s will was overborne by coercive police conduct.”  State v. Edwards, 589 N.W.2d 807, 813 (Minn. App. 1999) (citing Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 857 (1987)), review denied (Minn. May 18, 1999).

We find no merit in appellant’s pro se claims.