This opinion will be unpublished and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,
Donald James Lilienfeld,
Filed March 6, 2001
Hennepin County District Court
File No. 90040572
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Anderson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
DANIEL F. FOLEY, Judge
A jury found Donald Lilienfeld guilty of one count of arson and two counts of terroristic threats. The district court determined that Lilienfeld’s prior felony convictions could be used for impeachment purposes at trial and, on that basis, he chose not to testify in his own behalf. Lilienfeld now contends that he was prejudiced and also challenges the trial court’s determination to sentence him under Minn. Stat. § 609.1095 (1998), the career offender statute. Finally, Lilienfeld raises pro se challenges as to the sufficiency of the evidence, ineffective assistance of counsel, and the state’s alleged withholding of exculpatory evidence. Lilienfeld appeals his conviction and, alternatively, seeks a presumptive sentence. We affirm.
Appellant Donald Lilienfeld was found guilty of intentionally burning down a house at 3707 First Avenue South in Minneapolis (the house) on April 17, 1999, and of making terroristic threats to two individuals that he would also burn down their homes. Minneapolis Fire Department investigators testified that the evidence at the house indicated arson and that a liquid accelerant was used to start the fire.
The house was vacant from March 1997 until the fire in April 1999. From October 1996 to March 1997, the owner rented the house to Belinda Jenkins (n/k/a Belinda Lilienfeld) and her three young sons. In December 1996, the owner discovered that Donald Lilienfeld was also residing at the house and that he was causing damage within. The owner claims to have provided Jenkins with a written 30-day eviction notice on January 1, 1997, but allowed her to continue to reside there until March. Jenkins disputes ever receiving an eviction notice. In March 1997, the owner enlisted the assistance of Minneapolis housing inspectors to evict Jenkins from the house. Although the house was boarded up after the eviction, the owner called police on two occasions in 1997 upon finding that Lilienfeld and Jenkins had broken into the house.
Roosevelt Owens and Anthony Jarmones, neighbors who lived in a house located directly across the street from the house, testified at trial that they believed that Lilienfeld intended to burn the house down. They testified that, during the summer of 1998, Lilienfeld angrily threatened to burn the house down because the owner had, according to Lilienfeld, taken all of his and Jenkin’s money and then evicted them.
Owens testified that during the morning of April 17, 1999, he saw Lilienfeld walking around the house, and that night saw him sitting on the steps in front of Jarmones’s house smoking a cigarette. Jarmones also testified that sometime between 10:00 and 11:00 p.m. that night, he saw Lilienfeld walk away from the side of the house and cross the street to sit on the steps in front of Jarmones’s house. Jarmones saw a fire in the house and testified that Lilienfeld stated "[m]aybe I did [burn it down]. Maybe I didn’t. And if you tell I did it, I’m going to burn your house down." Jenkins testified, however, that Lilienfeld spent the evening with her and her two sons.
Lilienfeld’s acquaintance, Miamarie Sanchez, also testified that Lilienfeld similarly threatened to burn her house if she failed to repay him money that she owed him. She testified that Lilienfeld stated that he burned the house down with gasoline ignited with a cigarette, and within a day or two after the fire, Lilienfeld broke bottles of gasoline around the outside of Sanchez’s house.
The jury convicted Lilienfeld of one count of arson and two counts of terroristic threats. The district court sentenced Lilienfeld as a career offender. Lilienfeld appeals.
Minn. R. Evid. 609 governs the admissibility of prior convictions for use in impeachment. The critical question is whether, under rule 609(a)(1), the trial court properly ruled that the probative value of admitting the evidence outweighed any prejudicial effect. State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984). The trial court’s ruling must be upheld unless there is a clear abuse of discretion. Id. (quoting State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979)).
Whether the probative value of admitting evidence of prior convictions outweighs any prejudicial effect is determined by evaluating five factors:
(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.
State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). The prior convictions for evaluation in this case are aggravated robbery in 1988, felony theft in 1993, and third degree attempted burglary in 1998. Lilienfeld does not dispute the district court’s admission of evidence of his 1988 forged check conviction. He does challenge the court’s ruling to admit the other crimes, claiming that they are stale and prejudicial. An evaluation of the five factors indicates no abuse of discretion.
First, Lilienfeld’s prior convictions are useful for impeachment purposes. Evidence of a prior conviction is probative of credibility and truthfulness. Brouillette, 286 N.W.2d at 708. The primary purpose behind allowing evidence of prior convictions is to assist the jury “to judge better the credibility of a witness by affording it the opportunity to view that person as a whole.” Lloyd, 345 N.W.2d at 247. Even though a prior crime does not involve dishonesty, it is still probative of credibility and truthfulness. Brouillette, 286 N.W.2d at 708. The probative value of Lilienfeld’s convictions thus favors admitting the evidence.
Second, the prior convictions are not stale. Minn. R. Evid. 609 states that the current conviction needs to have occurred within 10 years from the date of the prior conviction or from the release of confinement, whichever is later. In this case, the state asserts that Lilienfeld was released within the last 10 years from the 1988 conviction, and thus the 1993 and 1998 convictions are timely.
Minn. R. Evid. 609(b) nonetheless allows the trial court to admit as impeachment evidence a conviction occurring more than 10 years ago if its probative value outweighs its prejudicial effect. Lilienfeld’s consistent and extensive criminal history further substantiates the validity and probative value of admitting evidence of his prior convictions. See Ihnot, 575 N.W.2d at 586 (subsequent convictions and “fairly old” conviction illustrate pattern of lawlessness indicating that passage of time has not made older conviction irrelevant). “[A] defendant’s history of lawlessness and convictions enhances the probative value of even a stale conviction.” Id. (citing United States v. Holmes, 822 F.2d 802, 804-05 (8th Cir. 1987)). The district court noted that Lilienfeld’s extensive criminal history began as a juvenile, and that he has seven prior adult felony convictions and numerous adult misdemeanor convictions. The record thus favors inclusion of the prior conviction evidence.
Third, the prior convictions for robbery, theft, and burglary are dissimilar to arson and terroristic threats, a fact not disputed by Lilienfeld. In general, a factor weighing in favor of admitting evidence of prior convictions occurs when the prior convictions and the current charged offenses are dissimilar. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). In this case, therefore, the dissimilarity of the prior convictions and current offenses favors admission.
Fourth, if the admission of prior convictions prevents the jury from hearing a defendant’s version of events, this weighs against admission of the prior convictions. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). A defendant’s choice not to testify because a trial court would allow impeachment evidence if the defendant testified does not necessarily implicate his constitutional right to testify in his own defense. Id. It is not uncommon for a defendant to choose not to testify because of the potential damage that prior convictions could inflict on their credibility. Id. at 68. Although Lilienfeld chose not to testify in this case because of the district court’s ruling, the jury nonetheless heard his version of the facts through the testimony of Jenkins, his girlfriend. See Lloyd, 345 N.W.2d at 246 (jury heard defendant’s version of what happened from police officer testifying about defendant’s statement).
Finally, the centrality of Lilienfeld’s credibility favors admitting evidence of his prior convictions. Impeachment evidence becomes more important when a defendant’s credibility is more central to the case. Gassler, 505 N.W.2d at 67. Had Lilienfeld chosen to testify, his credibility would have been a central issue. See Ihnot, 575 N.W.2d at 587 (defendant testifying places credibility at center of issue). Lilienfeld’s testimony would have required the jury to determine, on the contradictory evidence presented, whose testimony was more credible. We conclude, therefore, that the trial court did not abuse its discretion in authorizing admission of evidence of Lilienfeld’s prior convictions for impeachment purposes.
Lilienfeld contends that the trial court erred by imposing a 216-month sentence for his arson conviction, arguing that his prior felony convictions did not create a pattern of criminal conduct. A district court has broad discretion in sentencing, and will not be reversed unless a clear abuse of discretion is shown. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Additionally, the decision to depart from the sentencing guidelines rests within the district court’s sound discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996).
Under the career offender statute, the district court is authorized to depart durationally from the presumptive sentence by imposing a sentence up to the statutory maximum when an “offender has five or more prior felony convictions and * * * the present offense is a felony that was committed as part of a pattern of criminal conduct.” Minn. Stat. § 609.1095, subd. 4 (2000). “Pattern of conduct” is defined as criminal acts that are “similar to the present offense in motive, purpose, results, participants, victims or other characteristics.” State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). The statutory language also necessarily implies that “the convictions may span over one’s lifetime.” State v. Worthy, 583 N.W.2d 270, 280 (Minn. 1998).
The trial court noted at sentencing that Lilienfeld had seven prior felony convictions, thus meeting the criteria to sentence him under the career offender statute. Lilienfeld’s prior convictions for offering a forged check, aggravated robbery, controlled substance crime in the third degree, felony theft, and third-degree attempted burglary, coupled with the present offense of arson, evidence a pattern of criminal conduct, specifically, a pattern of committing property crimes. See, e.g., id. (finding pattern of criminal conduct in burglary offense with prior convictions for possession of dangerous weapon, possession of controlled substance, twice receiving stolen property, and attempted third-degree burglary). Because Lilienfeld’s current offense of arson was particularly serious due to the potential harm to human life, his crimes also follow a pattern of increasing dangerousness. See State v. Flemino, 529 N.W.2d 501, 504 (Minn. App. 1995) (career offender’s pattern is one of "increasing dangerousness"), review denied (Minn. May 31, 1995). The statute targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality. Id. at 503.
Lilienfeld’s criminal history began as a juvenile adjudicated delinquent in 1978 for theft and has continued throughout his adult life, thus illustrating that his criminal activity has not been temporary or sporadic. See id. (finding no indication of temporary or sporadic criminal activity where defendant’s criminal history began as juvenile and continued regularly into adulthood). Because of the criminality apparent in Lilienfeld’s lifestyle, as evidenced by his prior convictions, we conclude that the trial court did not abuse its discretion in sentencing him as a career offender.
In his pro se challenge, Lilienfeld contends that the evidence is circumstantial and insufficient to support a conviction. When evaluating the sufficiency of the evidence supporting a conviction, this court’s review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). The evidence is viewed in the light most favorable to the verdict, and it is assumed that the jury believed the state’s witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994). In reviewing a conviction based on circumstantial evidence, a jury normally is in the best position to evaluate circumstantial evidence, and their verdict is entitled to due deference. State v. Morris, 606 N.W.2d 430, 437 (Minn. 2000).
In this case, two witnesses testified to Lilienfeld’s possible motive for arson, placed him at the house immediately around the time of the fire, and testified as to his statements at that time. Conflicting testimony from Jenkins must be viewed as a credibility issue to be determined by the jury. See id. (jury determines credibility and weight given to testimony of individual witnesses). Viewed in the light most favorable to the verdict, we must assume that the jury believed the evidence presented by Owens and Roosevelt and disbelieved Jenkins, and that the jury believed the witnesses when they testified regarding Lilienfeld's terroristic threats. On the evidence presented, a jury could reasonably have concluded that Lilienfeld was guilty of the charged offenses.
Lilienfeld further contends that he could not have made statements to Owens and Roosevelt in the summer of 1998 regarding burning down the house because he claims to have been at the Lino Lakes Minnesota Correctional Facility during that time. There is nothing in the record to support his claim, and the evidence is sufficient to convict him of the crimes charged. See State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995) (even if conviction rests on circumstantial evidence, court must uphold verdict so long as reasonable inferences from evidence are consistent only with defendant’s guilt).
A defendant claiming ineffective assistance of counsel must show by a preponderance of the evidence that counsel’s representation "fell below an objective standard of reasonableness" and that counsel’s error so prejudiced defendant at trial that, but for the error, there would have been a different outcome at trial. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Whether representation fell below an objective reasonableness standard requires a determination as to whether the representation was "reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989) (citation omitted). A strong presumption exists that counsel’s representation fell within the range of reasonableness. King v. State, 562 N.W.2d 791, 795 (Minn. 1997).
Lilienfeld argues that his trial counsel was ineffective because he chose not to make an opening statement and he did not obtain certain records. Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal, because a postconviction hearing provides the trial court with necessary facts to explain counsel’s decisions, thus allowing for a proper consideration of counsel’s performance. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).
Counsel’s choice not to make an opening statement is a strategic decision that should be left to his or her discretion and that is not for this court to second-guess, thus allowing counsel flexibility when representing a client. King, 562 N.W.2d at 795 (counsel must have discretion to determine trial strategy and should have flexibility in representing clients). In addition, the jury was told that defense counsel could make an opening statement, could wait until later on during trial, or need make no opening statement at all.
Before trial, defense counsel also addressed issues regarding the discovery and production of Housing Inspection Department records and a 1998 Notice of Unlawful Occupancy. Counsel stated at that time that he did not plan to produce these records as evidence at trial. What evidence to present to the jury represents counsel’s determination of trial tactics, which lie within the proper discretion of trial counsel and will not be reviewed later for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). We conclude, therefore, that Lilienfeld’s ineffective assistance of counsel claim is without merit.
Finally, Lilienfeld argues that the state withheld exculpatory evidence by failing to disclose the existence of a fire at the house in June 1998. A due process violation occurs when the prosecution withholds material evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). The evidence withheld must be "material to either guilt or to punishment." Id., 83 S. Ct. at 1197.
Lilienfeld has submitted a letter from the Minneapolis Housing Inspection Services dated September 28, 2000, stating that the house in question sustained a fire in June 1998. But Lilienfeld fails to reveal how evidence that a fire occurred in June 1998 is relevant and material to the fire in April 1999, except by stating that it would give credibility to his argument that someone else started the April 1999 fire. See State v. Williams, 593 N.W.2d 227, 235-36 (Minn.), cert. denied, 528 U.S. 874 (1999) (finding no reversible error when evidence not material).
Under Minn. R. Evid. 404(b), a defendant may seek to introduce evidence that a third person, not the defendant, committed the crime of which defendant is accused. State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997). This evidence may include a “third person’s motive to commit the crime, threats made by the third person, or other facts tending to prove the third person committed the crime.” Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000) (citation omitted). Before such evidence can be introduced, however, a defendant must provide a foundation with evidence tending to connect the other person with committing the crime. Id.
Defendant has not shown how the additional information is material and relevant, nor has he provided a foundation to show that a third person set the fire.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.