This opinion will be unpublished and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

C0-00-956

 

State of Minnesota,

Respondent,

 

vs.

 

Jawon Deandra Jarrett,

Appellant.

 

Filed April 10, 2001

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 99112559

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Peterson, Presiding Judge, Randall Judge, and Shumaker, Judge.


U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

Appellant challenges his conviction for terroristic threats, felon in possession of a firearm, and second-degree assault. He argues that the evidence was insufficient to support his conviction because it was circumstantial and the witnesses were not credible. Appellant also argues that the district court abused its discretion by admitting his prior conviction as impeachment evidence. He asserts that it unfairly prejudiced him and violated his constitutional right to testify in his own defense. We affirm.

FACTS

On October 31, 1999, after spending the night with his former girlfriend, L.R.O., appellant Jawon Deandra Jarrett remained at L.R.O.'s apartment for much of the day. L.R.O. and appellant argued throughout the day regarding L.R.O.'s new boyfriend. At one point during the day, L.R.O. left for the mall, leaving her three children with Beverly Robertson, an across-the-hall neighbor. While at the mall, L.R.O. encountered appellant, where the prior argument was renewed. L.R.O. then went home, took her children to a Halloween party, and returned home with them later that evening. When L.R.O. arrived, she found appellant in her home and noted that he was consuming alcohol. She asked appellant to leave, but he refused. The argument was again renewed, beginning verbally and escalating into a physical altercation.

L.R.O. testified that appellant grabbed her around her neck and burned her face with a cigarette. As the argument intensified, L.R.O. and appellant fell to the floor and wrestled. L.R.O. testified that, as she tried to escape from appellant's grasp, he bit her back. L.R.O. then told her six-year-old daughter to go across the hall to Robertson's apartment to call the police. Robertson testified that at some point during the physical altercation she entered L.R.O.'s apartment, observed the argument, and then went back to her apartment to call 911.

According to L.R.O.'s testimony, appellant pulled a handgun either from the couch or out of his pocket. She said that he pointed the gun upward and then lowered it to his side. Both L.R.O. and Robertson testified to hearing appellant say, "I'm going to kill you." Some discrepancy exists, however, as to the timing of his statement. L.R.O said that appellant made the statement before he picked up the gun, and Robertson testified that he was holding the gun when he made the statement. Appellant then left L.R.O.'s apartment.

L.R.O. testified that after leaving her apartment, appellant telephoned her, threatening to shoot through her windows. She stated that, although the caller did not identify himself and a phone number other than appellant's registered on her caller identification, she recognized the caller's voice as appellant's.

L.R.O. approached appellant's attorney at the beginning stages of the case and told him that appellant did not have a gun, that it was instead a piece of metal that had broken off of her couch. She also told appellant's attorney that appellant did not make threats over the telephone, that instead he was calling to apologize. L.R.O. later repeated this story to a defense investigator. At trial however, L.R.O. testified that appellant did in fact have a gun, that he did threaten her over the telephone, and that she had lied to appellant's attorney and the defense investigator because she still had feelings for appellant.

Appellant was charged with making terroristic threats, felon in possession of a firearm, and second-degree assault. Appellant did not testify at trial. A jury convicted appellant of all charges, and the district court sentenced him to 60 months. This appeal followed.

D E C I S I O N

I. Sufficiency of the Evidence

Appellant argues there was insufficient evidence to support his conviction for terroristic threats, felon in possession of a firearm, and second-degree assault.

In considering claims of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

When a conviction is based on a witness's testimony, it is the jury's exclusive function to resolve any conflicts and inconsistencies with that testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Further the jury determines the weight and credibility of a witness's testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

A. Terroristic Threats

Terroristic threats are defined as:

[threats] directly or indirectly, to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror.

 

Minn. Stat. 609.713, subd. 1 (1998).

Appellant argues that the state failed to prove that he threatened a crime of violence and that he had intent to terrorize another or act in reckless disregard of causing terror. All of the state's evidence against appellant came from L.R.O. and Robertson's testimony regarding two separate acts by appellant. First, L.R.O. and Robertson testified that appellant said to L.R.O., "I'm going to kill you." Second, L.R.O. testified that appellant telephoned L.R.O. and threatened to shoot through her windows. Essentially, appellant is asserting that the jury gave too much weight to L.R.O. and Robertson's testimony.

Regarding the first act, L.R.O. and Robertson both testified that appellant said, "I'm going to kill you." Appellant argues that L.R.O.'s testimony was insufficient because she stated during her testimony that appellant was not "threatening her and causing her terror." In making this reference, appellant seems to be arguing that even if he did say, "I'm going to kill you," his statement did not have the effect of threatening or terrorizing L.R.O.

"The effect of a terroristic threat is not an essential element of the offense." Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn. July 16, 1998). The proper focus should be on appellant's intent, which is "usually established only by reasonable inference from surrounding circumstances." State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (citation omitted). Even though L.R.O. testified that she was not frightened, the circumstances surrounding appellant's statement could allow a reasonable jury to conclude that appellant intended to terrorize L.R.O. or act in reckless disregard of causing terror.

L.R.O. and appellant argued throughout the day. That evening, their arguments escalated into a physical altercation during which time appellant grabbed L.R.O. around the neck, burned her face with a cigarette, and bit her back, resulting in visible injuries. In addition, both witnesses testified that appellant stated, "I'm going to kill you." Given these circumstances, we find that it was reasonable for the jury to conclude that appellant intended to terrorize L.R.O or acted in reckless disregard of causing her terror.

Appellant also asserts that Robertson was not a credible witness because she was impeached by her prior conviction for illegally obtaining public assistance, that her testimony was inconsistent, and she had been drinking that day. But, even with an impeached witness, the jury must resolve credibility issues. State v. Dillon, 529 N.W.2d 387, 394 (Minn. App. 1995). Robertson testified that she observed the argument between L.R.O and appellant and heard appellant tell L.R.O., "I'm going to kill you." Assuming the jury believed the state's witnesses, which they are entitled to, there is sufficient evidence to support the jury's conclusion that appellant was guilty of the charged offense.

As for the second act upon which the state based its terroristic threats charge, L.R.O. testified to receiving a telephone call from appellant threatening to shoot through her windows. Appellant points out that L.R.O.'s earlier statement to his attorney was inconsistent with her testimony, the caller did not identify himself, and the caller's number was not appellant's. But L.R.O. testified that she recognized appellant's voice. If the jury believed L.R.O.'s testimony, then it could have found that appellant's threatening phone call constituted terroristic threats based on appellant's behavior.

Because it is the jury's function to resolve inconsistencies in witnesses's testimony and determine witnesses's credibility, on this record, its reliance on the state's witnesses is not unreasonable. Therefore, the evidence was sufficient to convict appellant of terroristic threats.

B. Felon in Possession of a Firearm

In Minnesota it is unlawful for persons convicted of a violent crime to possess a firearm. Minn. Stat. 624.713, subd. 1(b) (1998). Since both parties stipulated that it would have been illegal for appellant to possess a firearm, the conviction rests on the question of whether appellant actually possessed a firearm. Appellant argues that because no gun was recovered and the state's evidence was circumstantial, it failed to prove beyond a reasonable doubt that appellant possessed an actual firearm.

Contrary to his assertion, appellant's conviction was based on direct evidence, not circumstantial evidence. The testimony of a person who perceived a fact through the senses is direct evidence. 10 Minnesota Practice, CRIMJIG 3.05 (1999) ("A fact is proven by direct evidence when, for example, it is proven by witnesses who testify to what they saw, heard, or experienced * * * ."). L.R.O. and Robertson testified that they saw appellant with a gun. The weight to be given that testimony is for the jury. The fact that the gun (if there was one - the jury question) was missing at the time of trial does not change L.R.O.'s and Robertson's testimony from direct to circumstantial. The fact that the gun was never produced at trial could affect the weight to be given their testimony, but the character of this testimony remains testimonial.

Appellant questions the credibility of L.R.O. and Robertson's testimony regarding appellant's possession of a gun. He points to the inconsistency between L.R.O.'s earlier statement to his attorney and her trial testimony. In addition, appellant points to Robertson's prior conviction, inconsistencies in her testimony, and her alcohol consumption on the day of the incident to argue that her testimony was not credible. "Inconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal." State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000) (citation omitted). Both witnesses testified that they saw appellant holding a gun. Although the gun was not recovered, L.R.O. and Robertson's testimony provided sufficient evidence to support appellant's conviction for felon in possession of a firearm. See Bakken, 604 N.W.2d at 111 (stating that where evidence is principally testimonial, there is no basis for reversal where jury hears conflicting testimony and finds resolution).

C. Second-Degree Assault

Appellant also challenges his second-degree assault conviction. Second-degree assault is assault with a dangerous weapon.[1] Minn. Stat 609.222, subd. 1 (1998). Appellant again argues that the state failed to prove beyond a reasonable doubt that appellant actually possessed a gun. Appellant further argues that even if the evidence was sufficient to prove that appellant possessed an actual gun, the state provided no evidence that he used the gun to assault L.R.O., since appellant did not "threaten [L.R.O.] with [the gun]" or "display the gun in any way that made [L.R.O.] frightened." Essentially, appellant asserts that because the testimony shows he never pointed the gun at L.R.O. and a deadly weapon was not used, there was insufficient evidence for a second-degree assault conviction.

The state relied on L.R.O. and Roberton's testimony to prove appellant had a gun. As discussed above, their testimony provides sufficient evidence on which the jury could rely. L.R.O. and Robertson both testified that they saw appellant with a gun. As for appellant's argument regarding his use of the gun, although he did not point the gun at L.R.O., the crime does not require a "pure pointing." The totality of the circumstances would allow a reasonable jury to believe that he handled it in such a way as to threaten her. Implicit in picking up a gun in the midst of a physical argument with an unarmed person is its use, regardless of whether specific threatening gestures are employed. Although there is some discrepancy as to the timing of appellant's statement "I'm going to kill you," both of the of the state's witnesses agree that the statement was made in close proximity to appellant picking up the gun. When combined with the circumstances surrounding appellant's possession of the gun, we conclude it was not unreasonable for the jury to conclude that he used the gun to cause L.R.O. imminent fear of bodily harm. Thus, there was sufficient evidence to support appellant's conviction for second-degree assault.

II. Prior Conviction

Appellant argues that the district court abused its discretion by admitting his prior conviction for simple robbery to be used as impeachment evidence. He further argues that, because the impeachment evidence was admitted, his constitutional right to testify was violated.

A. Admission of Prior Conviction

Appellant asserts that his prior conviction was inadmissible because it was more prejudicial than probative. A district 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).

Prior convictions may be used for impeachment purposes if the crime

was punishable by death or imprisonment in excess of one year * * *, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

 

Minn. R. Evid. 609(a)(1). Also, a conviction generally must be less than ten years old to be admissible. Minn. R. Evid. 609(b). Whether the probative value of admitting evidence of prior convictions outweighs any prejudicial effect is determined by evaluating five factors commonly referred to as the Jones 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.

 

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).

We conclude that the district court did not abuse its discretion in admitting appellant's prior conviction. Appellant was convicted in July 1999 for simple robbery, a crime punishable by imprisonment in excess of one year. An evaluation of the five Jones factors shows that the district court did not err in determining that the probative value of admitting appellant's prior conviction outweighed any possible prejudicial effect.

1. Impeachment Value of the Prior Crime

The first Jones factor addresses the impeachment value of the prior conviction. Appellant argues that his prior conviction for robbery is not a crime of dishonesty and thus has little value in impeaching his testimony. A crime need not be one of dishonesty to have probative value in allowing the jury to assess the credibility of a witness. See State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (recognizing that even though crime is not directly related to truth or falsity does not mean that evidence of conviction has no impeachment value). Admitting appellant's conviction for robbery, while not a crime of dishonesty (although not that far from dishonesty), was a judgment call for the district court judge, and we cannot conclude it was error.

2. Date of Prior Convictions

The second Jones factor addresses the relevance of the prior conviction by examining the date of the conviction and appellant's subsequent history. See Ihnot, 575 N.W.2d at 586 (stating that prior convictions can show pattern of lawlessness indicating offense has not lost relevance over time). Appellant's conviction for robbery was in July 1999, and he was charged with the current crimes in November 1999.  Accordingly, appellant's prior conviction was not irrelevant for staleness.

3. Similarity Between Past Crime and Charged Offense

The greater the similarity between a prior crime and current offense, the more prejudicial the prior conviction is for impeachment purposes. Ihnot, 575 N.W.2d at 586. Thus, the dissimilarity between simple robbery and appellant's charged offenses in this case again constitutes a judgment call for the district court. We cannot find abuse of discretion. Although robbery is a crime of violence, its elements are distinguishable from the elements of the current charges. Id. (determining no error in admission of prior third-degree criminal-sexual conduct conviction for impeachment purposes where facts were sufficiently different to distinguish it from defendant's current first-degree criminal-sexual conduct charge).

4. Importance of Defendant's Testimony/Centrality of Credibility

Applying the fourth and fifth Jones factors to this case, had appellant testified, appellant's testimony and his credibility would have been central to this case.

[T]he general view is that if the defendant's credibility is the central issue in the case that is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other person then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.

 

Ihnot 575 N.W.2d at 587(quotation omitted).

Appellant made no offer of proof regarding what his testimony would have been had he testified, supporting the district court's decision to admit appellant's prior conviction. See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (concluding that defendant's lack of offer of proof supported district court's decision to admit prior conviction for impeachment purposes). Further, we know that we can assume the essence of his testimony would have been to deny the allegations of the charged offenses. See Ihnot, 575 N.W.2d at 587 (stating an assumption that defendant who did not make offer of proof would have denied allegations against him). The bulk of the evidence used to convict appellant came from the testimony of two eyewitnesses. Because the case before the jury was based on witness credibility, appellant's prior conviction, had he taken the stand, was relevant to a central issue, that of credibility under the fourth and fifth criteria of Jones.

We understand the dilemma for appellant and appellant's counsel. If appellant took the stand, he would have been subject to impeachment by his prior conviction.[2] This was a pure credibility case. With appellant on the stand, exposing himself to possible damaging cross-examination by the state, the jury would have heard from "the real eyewitness" to the case rather than hear about something in appellant's past that happened months before (his prior conviction), and something to which they were neither consulted on nor privy to. But based on the rules of evidence, we conclude that the district court did not abuse its discretion.

We find that the district court fairly weighed the factors in determining that appellant's prior conviction was more probative than prejudicial and did not abuse its discretion.

B. Right to Testify

Appellant argues that admitting his prior conviction for robbery to be used as impeachment testimony violated his constitutional right to testify on his own behalf. We can only state that appellant was not prevented from testifying. Instead, appellant made a tactical decision not to testify based on his prior conviction's potential damage to his credibility.

It is only when a [district] court has abused its discretion [by admitting the impeachment evidence] that a defendant's right to testify may be infringed by the threat of impeachment evidence.

 

Gassler, 505 N.W.2d at 68.

Because the district court did not abuse its discretion in ruling on the admissibility of appellant's conviction, we find no violation of appellant's constitutional right to testify.

Affirmed.



[1] "Assault" is defined as "[a]n act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. 609.02, subd. 10 (1998). "Dangerous weapon" is defined as "any firearm, whether loaded or unloaded." Minn. Stat.  609.02, subd. 6 (1998).

[2] It would have been just as fair for the district court to rule in appellant's favor and prevent the impeachment evidence from coming in if appellant took the stand as it was for the district court to rule for the state and allow the impeachment evidence in if appellant took the stand. On close calls in criminal cases, the rule is firm. Penal statutes are construed strictly against the state and in favor of the defendant. "[W]here doubt exists as to legislative intent of a penal statute, doubts must be resolved in favor of the defendant." State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987) (citing State v. Haas, 280 Minn. 197, 200, 159 N.W.2d 118, 121 (1968)).