This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John Raymond Feneis,
Filed February 20, 2001
County District Court
File No. KX991280
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
G. Paul Beaumaster, Rice County Attorney, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
Appellant challenges his conviction and sentence for a first-degree controlled substance offense, contending that the district court abused its discretion when it ruled that the state could impeach him with a prior drug offense conviction. Because his prior offense was so similar to the charged offense, appellant alleges the jury would be unable to limit consideration of the prior conviction to credibility assessment. Additionally, appellant argues that the district court should have imposed a downward durational departure from the presumptive sentence because the police, in arranging several controlled buys, engaged in “sentencing manipulation.” We affirm.
Appellant John Feneis was convicted of a first-degree controlled substance violation after the police arranged cocaine purchases from him on five separate occasions. The first controlled buy occurred on March 16, 1999 when Tony Mata, a convicted felon, called Sergeant Roger Schroeder to tell him that Feneis offered to sell him cocaine. Sgt. Schroeder arranged for Mata to buy cocaine from Feneis. Sgt. Schroeder outfitted Mata with cash and a tape recorder and dropped him at a location one block from Feneis’s residence. Sgt. Schroeder watched Mata enter and leave Feneis’s house. After leaving the house, Mata turned over the tape recorder, a small foil package containing white powder, and $80 in cash to Sgt. Schroeder.
Mata and Officer Pedro Aboytes, an undercover agent for the Drug Task Force, conducted the second controlled buy on May 4, 1999. After Mata and Officer Aboytes entered the residence, Feneis arrived and went inside. When Mata and Officer Aboytes left the residence, they met Sgt. Schroeder and turned over a voice transmitter and a foil packet containing white powder which was obtained in the sale.
On May 9, 1999, Mata and Officer Aboytes again arranged to buy cocaine from Feneis. After meeting with Feneis and completing a cocaine buy, the two met Sgt. Schroeder at an arranged meeting place and returned some money not used, a transmitter, and a foil package.
The fourth buy took place on June 7, 1999. Mata contacted Sgt. Schroeder and told him that he might be able to purchase two “eight balls” (an eight ball is 1/8 oz. of cocaine) from Feneis. Again, Sgt. Schroeder gave Mata $500 and a radio transmitter and dropped him a block away from Feneis’s house. Sgt. Schroeder observed Mata enter and leave Feneis’s house. Following his encounter with Feneis, Mata again met Sgt. Schroeder and turned over a foil package, the transmitter, and $240.
The final buy occurred on July 7, 1999. This time Officer Aboytes went alone to Feneis’s residence. After completing a transaction with appellant, Officer Aboytes turned over a transmitter, unused buy money, and a clear plastic bag containing white powder. A short time later, the police executed a search warrant at Feneis’s residence and recovered digital scales, tinfoil, night vision goggles, and a scanner. No drugs were recovered.
All of the buys were tape recorded, but due to the poor quality of those recordings, only the recording of the buy carried out on May 4, 1999, was admitted into evidence. The Bureau of Criminal Apprehension tested all five packages purchased from Feneis. The drug analysis confirmed that each package contained cocaine in the following amounts: 3 grams, 3.2 grams, 1.5 grams, 3.4 grams, and 2.6 grams, for a total of 13.7 grams.
Following a jury trial, Feneis was convicted on one count of first-degree controlled substance offense, in violation of Minn. Stat. § 152.021, subd. 1(1), and two counts of second-degree controlled substance offense, in violation of Minn. Stat. § 152.022, subd. 1(1). The district court sentenced Feneis to an executed prison term of 98 months on count one, the presumptive guideline sentence for this offense for a defendant with a criminal history score of one. Minn. Sent. Guidelines IV. This appeal followed.
D E C I S I O N
Feneis contends the district court improperly ruled that his prior conviction for a fifth-degree controlled substance violation could be admitted for impeachment purposes. Minn. R. Evid. 609(a), which governs impeachment by evidence of a prior criminal conviction, states:
For the purpose 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.
Minn. R. Evid. 609(b) also mandates that a prior conviction is not admissible if a period of more than ten years has elapsed since the date of that conviction. Feneis’s prior conviction is not stale because his prior offense occurred in 1994 and he was sentenced for it in 1996. Thus, we need only determine whether the district court abused its discretion by ruling the use of Feneis’s 1994 fifth-degree controlled substance conviction could be used for impeachment purposes.
A district court’s decision to admit evidence of a prior conviction for impeachment purposes is accorded great discretion and will not be reversed absent a clear abuse of that discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Furthermore, “[w]hether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court.” State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). A determination of whether the probative value of Feneis’s prior conviction outweighs the risk of unfair prejudice arising from its similarity to the current crime requires a consideration of factors set forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978). See Ihnot, 575 N.W.2d at 586 (concluding that these factors are to be applied despite the fact that Jones was decided before Rule 609 became effective). These factors are:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
Jones, 271 N.W.2d at 538. After reviewing the factors set forth in Jones, it is evident that the district court did not abuse its discretion by holding that Feneis’s prior conviction could be admitted for impeachment purposes.
The first Jones factor, the impeachment value of the prior conviction, is satisfied despite Feneis’s argument that the dangers of allowing a defendant to be impeached by evidence of a prior conviction outweigh the value of admitting such evidence. The dangers cited by Feneis are addressed by the rule’s requirement that such evidence only be admitted when its probative value outweighs its prejudicial effect. Furthermore, when a defendant decides to testify, the jury is entitled to judge credibility, and “impeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citations omitted). Here, evidence of past criminal conduct, particularly that involving controlled substances, could have assisted the jury in weighing Feneis’s credibility.
Under the second Jones factor, the date of the conviction and the defendant’s subsequent history are examined to ensure that the prior offense has “not lost any relevance by the passage of time.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). Minn. R. Evid. 609(b), which mandates that a prior conviction is not admissible if a period of more than ten years has elapsed since the date of that conviction, also addresses the concern that the passage of time may cause the prior conviction to lose its relevance as it pertains to a defendant’s credibility. Here, only five years had passed between the date of conviction for the prior offense and the date of Feneis’s alleged criminal acts. This amount of time does not weigh in favor of finding the admission of the prior conviction more prejudicial than probative.
Because both offenses are controlled substance offenses, the third Jones factor requires that we determine whether the facts underlying each charge are “sufficiently different to minimize any prejudicial effect of admission of the earlier conviction.” Ihnot, 575 N.W.2d at 586. Admitting the two offenses in this case does not present an impermissible risk of prejudice, especially in light of the admission of prior convictions for impeachment purposes in other cases. See id. at 586-87 (admission of a third-degree criminal sexual conduct conviction for impeachment in a trial for first-degree criminal sexual conduct did not amount to an abuse of discretion by the trial court); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming trial court’s decision to allow use of two prior rape convictions for impeachment purposes in a trial for first-degree criminal sexual conduct). The two crimes here are not so similar in nature that allowing Feneis’s prior conviction would result in undue prejudice.
Feneis claims that his version of the events was central to his defense, but he chose not to testify at trial. There was no offer of proof as to what his testimony would have been had he testified. Because we lack any knowledge of the substance of any testimony that Feneis would have offered, we cannot evaluate the fourth Jones factor to determine the effect of any abuse of discretion in this area.
A defendant’s credibility is central if “the issue for the jury narrows to a choice between defendant’s credibility and that of one other person.” Bettin, 295 N.W.2d at 546. Where credibility is a central issue then “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” Id. Despite the fact that Feneis did not testify, it may be inferred that he intended to testify to a version of the events that differed largely from that recounted by Mata, Sgt. Schroeder, and Officer Aboytes, making Feneis’s credibility a central issue favoring the admission of his prior conviction for impeachment purposes.
Finally, Feneis argues that the district court abused its discretion when it ruled that the prior conviction was admissible. Feneis contends that the district court arbitrarily decided that his prior conviction was inadmissible as Spreigl evidence, but admissible for the purpose of impeachment. The district court did not abuse its discretion when it made these two evidentiary rulings.
Under Minn. R. Evid. 404(b), evidence of other crimes is inadmissible to prove the accused’s character in order to show that he acted in conformity therewith in the present case. But such evidence is admissible “to establish motive, intent, absence of mistake or accident, identity or common scheme or plan.” State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990) (citing State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965)). In evaluating whether to admit Spreigl evidence, the district court must determine how crucial the evidence is to the state’s case. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).
Here, the district court decided not to allow Feneis’s prior conviction to come in as Spreigl evidence, that is, as evidence showing lack of mistake, because the state had a very strong case without its admission. As such, it was not crucial to the state’s case. Thus, the district court did not, as Feneis suggests, find his prior conviction more prejudicial than probative as Spreigl evidence, and sufficiently probative to outweigh any prejudicial effect for the purpose of impeachment. The district court’s decision to admit this evidence did not constitute an abuse of discretion.
Feneis argues that the district court abused its discretion when it refused his request for a downward durational departure from the presumptive guideline sentence. A district court is “accorded broad discretion in deciding whether to depart durationally based on conduct which was significantly less serious than that typically involved in the commission of the crime in question.” State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993) (citation omitted), review denied (Minn. Oct. 19, 1993). Because a decision to depart from the sentencing guidelines rests within the district court’s discretion, we will not reverse such a decision absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Furthermore, something may constitute a factor supporting a downward departure only if it tends “to excuse or mitigate the offender’s culpability for the offense.” State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985).
Feneis contends that the district court should have imposed a sentence with a downward durational departure from the presumptive sentence, arguing that the state engaged in sentencing manipulation to gather sufficient evidence to charge him with a first-degree controlled substance offense. Presumably Feneis contends that the existence of sentencing manipulation is a substantial and compelling circumstance warranting a downward durational departure. See Minn. Sent. Guidelines II.D (the court shall impose the presumptive sentence unless the case involves substantial and compelling circumstances).
The sentencing manipulation doctrine was first set out as a separate doctrine in United States v. Shepard, 4 F.3d 647, 649 (8th Cir. 1993),cert. denied, 510 U.S. 1203, 114 S. Ct. 1322 (1994). The court in Shephard recognized that police may legitimately
continue to deal with someone with whom they have already engaged in illicit transactions in order to establish that person’s guilt beyond a reasonable doubt or to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy.
Id. at 648 (quotation omitted). The court also recognized that situations might exist where law enforcement “engages in continuing undercover or sting transactions for the sole purpose of ratcheting up a sentence under the guidelines.” Id. at 649.
The Minnesota Supreme Court reviewed the doctrine of sentencing manipulation in State v. Soto, 562 N.W.2d 299 (Minn. 1997). The supreme court in Soto did not, as the state suggests, wholeheartedly dismiss the doctrine. Instead, the court stated:
We further decline to adopt the doctrines of sentencing entrapment and sentencing manipulation in the absence of egregious police conduct that goes beyond legitimate investigative purposes.
Id.at 305. The court simply found that there was no “egregious police conduct” that went beyond the bounds of “legitimate investigative purposes” in the case before it to require the doctrine’s adoption. Here, Feneis has failed to meet his burden of establishing that the state acted egregiously and engaged in sentencing manipulation.
In support of his argument that the state engaged in sentencing manipulation, Feneis contends that the last two controlled buys were unnecessary and that their sole purpose could be nothing more than to increase the amount and weight of cocaine he sold to the undercover agents so that he could be charged with a first-degree controlled substance violation. Feneis contends that after the third sale had been completed, the state had established a pattern and had two witnesses who could testify against Feneis.
The distinguishing factor between a first, a second, and a third-degree controlled substance offense is the cumulative weight of the controlled substance sold by the defendant. A first-degree offense can be charged when a person sells ten or more grams of cocaine within a 90-day period, Minn. Stat. § 152.021, subd. 1(1); a second-degree offense with the sale of three or more grams of cocaine, Minn. Stat. § 152.022, subd. 1(1); and a third-degree offense when a quantity that amounts to less than three grams is sold. Minn. Stat. § 152.023, subd. 1(1).
Feneis could only be charged with a second-degree offense after the first three buys. Another controlled buy in amount of at least 2.3 grams was necessary to charge Feneis with a first-degree controlled substance offense. The question then is whether any legitimate investigative purposes were served by executing a fourth buy.
Feneis acknowledges that it may have been necessary for the state to undertake the second sale because Mata executed the first alone. Mata was a convicted felon and his testimony, without another witness to corroborate his account of the sale, might have been insufficient to convict Feneis. This problem, Feneis contends, was remedied during the second sale because Officer Aboytes accompanied Mata.
Additionally, Feneis claims that the sales he made evidenced his status as a “typical street dealer, who sells drugs to support his habit” as opposed to a drug wholesaler. Feneis argues the statute intends to punish the drug wholesaler as a first-degree controlled substances vendor, and that his sentence should be reduced to more accurately reflect his culpability.
But this allegation supports the argument that Feneis was subjected to sentencing entrapment rather than sentencing manipulation. Under the doctrine of sentencing entrapment, a defendant bears the burden of demonstrating that “he was predisposed only to sell smaller amounts of cocaine and that he had neither the intent nor the resources for selling the larger amount he was entrapped into selling.” Soto, 562 N.W.2d at 304.
Feneis has not met his burden of demonstrating that the police engaged in egregious conduct motivated solely by a desire to increase his sentence. Feneis only claims the record is void of any evidence that the fourth and fifth buys were necessary to discover his supplier. This bare assertion is insufficient to overcome the burden of showing that no investigative purposes were furthered by the accomplishment of the fourth and fifth controlled buys. No affirmative evidence exists that those buys were executed solely to increase the offense with which Feneis could be charged.
 Feneis was charged with one count of a first-degree controlled substance violation for the first four controlled buys. He was also charged with two second-degree controlled substance violations for the fourth and fifth controlled buys.
 The rationale behind this differential is that different classes of dealers can be distinguished based on the weight of the controlled substance. For instance, “the weight-based cutoff for third-degree sales [is] consistent with the amount that a street-dealer would sell, whereas the weight-based cutoff for first-degree sales was consistent with what a wholesale dealer would sell.” Soto, 562 N.W.2d at 303 n.7.