This opinion will be unpublished and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

CX-00-1595

 

State of Minnesota,

Respondent,

 

vs.

 

Ruben Cruz,

Appellant.

 

Filed June 12, 2001

Affirmed in part, reversed in part, and remanded

Lindberg, Judge*

 

Brown County District Court

File No. K0049

 

 

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

 

James R. Olson, Brown County Attorney, 519 Center Street, Box 428, New Ulm, MN 56073 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.


U N P U B L I S H E D   O P I N I O N

LINDBERG, Judge

            Appellant Ruben Cruz challenges his conviction for assault in the second degree, claiming that the district court erred in permitting the prosecutor to elicit testimony concerning Cruz’s prior shoplifting conviction for the purpose of impeachment.  Cruz also argues that the district court erred in imposing multiple sentences for conduct that constituted a single behavioral incident.  We affirm in part, reverse in part, and remand for re-sentencing.

FACTS

On January 24, 2000, Cruz attempted to steal a car from the parking lot of a store in New Ulm.  After entering a car and breaking the steering column in order to hot-wire the car, Cruz noticed that two people were walking toward the car.  Correctly suspecting that the people were the owners of the car, Cruz exited the car, began walking away for a short distance, and finally started to run away from the scene of the attempted theft. 

            The two people whom Cruz had observed walking toward the car were Gary Rose and his daughter Stephanie.  Rose observed Cruz exiting the car, walking away, and later running away from the scene.  Upon discovering that his steering column had been damaged, Rose entered the car and, with Stephanie in the passenger seat, began to pursue Cruz.  During the ensuing chase, which lasted between 15 and 20 minutes, Cruz darted between houses and ran along streets.  Finally, after pursuing Cruz with his headlights turned off, Rose was able to get close enough to confront Cruz.  Rose exited the car, told Stephanie to stay in the car, and “tackled” Cruz after chasing him on foot for roughly 50 feet.  Rose then pinned Cruz to the ground and held him there until the police arrived a short time later, at which point the police placed Cruz under arrest.  The events that occurred between the “tackle” and the arrest constitute the subject matter of Cruz’s criminal trial and the present appeal.

            Cruz was charged with attempted motor vehicle theft, criminal damage to property in the third degree, and assault in the second degree.  He pleaded guilty to the counts of theft and damage to property, but elected for a jury trial on the count of assault in the second degree. 

            At trial, Rose testified that Cruz was armed with a screwdriver and that when Rose took Cruz to the ground, Cruz swung the screwdriver at Rose’s face.  Rose stated that he then grabbed Cruz’s arm and removed the screwdriver from his hand.  According to Rose, Rose remained on top of Cruz and kept the screwdriver until the police arrived.

Cruz testified on his own behalf.  He conceded that Rose had pinned him and had taken the screwdriver away from him.  However, Cruz denied attacking Rose at any time during the confrontation.  In addition, the following exchange occurred between Cruz and defense counsel:

Defense Counsel:      Mr. Cruz, have you ever been convicted of a crime before?

 

Cruz:                           Yes.

 

Defense Counsel:      Where?

 

Cruz:                           Texas.

 

Defense Counsel:      How about in Minnesota?

 

Cruz:                           Yes.

 

Defense Counsel:      Where?

 

Cruz:                           In Mankato.

 

Defense Counsel:      And when was that?

 

Cruz:                           That was in December of ’99.

 

Defense Counsel:      What was the crime?

 

Cruz:                           Um, shoplifting. 

 

On cross-examination, the prosecutor inquired as the shoplifting conviction.  The following exchange took place between Cruz and the prosecutor:

Prosecutor:    Now, you’ve admitted to being convicted of theft in Blue Earth County?

 

Cruz:               Yes.

 

Prosecutor:    In fact, the day of the offense was December 28, 1999; is that correct?

 

Cruz:               Yes, around. 

 

Prosecutor:    Well, you were sentenced on January 18th; is that correct?

 

Cruz:               Yes, around there.

 

Prosecutor:    And at the time of the sentencing, were you to report to jail?

 

Cruz:               Yes.

 

Prosecutor:    At the time this event occurred were you to report back to jail in Mankato?

 

Cruz:               Yes, I think so.

 

Prosecutor:    Is that the reason you were going to steal the car, so you could drive from New Ulm back to Mankato to report to jail?

 

Cruz:               Yes.

 

            Also, prior to Cruz’s testimony, the following exchange occurred outside the presence of the jury:

Prosecutor:                And then the only other one, and I guess this would depend upon whether or not [defense counsel’s] client takes the stand, I’ve got a certified copy of his conviction for theft back on January 18th.

 

Defense Counsel:      Was that a felony?

 

Prosecutor:                No, misdemeanor.

 

Defense Counsel:      Misdemeanor.  The rule doesn’t –

 

Prosecutor:                Yeah, it does.  Look at the rule.  The rule talks –

 

Defense Counsel:      It says where, where the penalty for the crime is imprisonment for more than 12 months.

 

Prosecutor:                No, you got to read it, or any other crime involving –

 

Court:                         Honesty.

 

Prosecutor:                -- honesty.  Well, you can look at that.  I just want to let the Court know I have those requests.

 

Court:                         Okay.  You’re objecting, or not taking any position?

 

Defense Counsel:      Well, of course what we’re interested in is an instruction by the Court as to what is a weapon.

 

This appears to be the only discussion concerning the admissibility of Cruz’s prior conviction for shoplifting, and the record does not reflect that defense counsel made an objection concerning the admissibility of the shoplifting conviction at any time during Cruz’s testimony. 

            The jury found Cruz guilty of assault in the second degree.  At sentencing, the district court initially adjudged Cruz guilty of attempted theft of an automobile and assault in the second degree.  The district court also found that the offense of criminal damage to property arose out of the same behavioral incident as the attempted automobile theft, and therefore Cruz could not be sentenced for that offense.

The district court sentenced Cruz separately for the charges of attempted motor vehicle theft and assault in the second degree.  The sentencing worksheet for the former charge showed that Cruz had one criminal history point.  The worksheet for the latter charge showed two criminal history points, including one for the motor vehicle theft.  The district court determined that the presumptive sentences for the attempted theft and assault charges were 12 months plus 1 day and 33 months respectively.  Defense counsel argued that the attempted theft and assault were both part of the same behavioral incident, and therefore that Cruz could only be sentenced for one of the crimes.  Defense counsel also suggested that Cruz only be sentenced for the attempted theft charge.

The district court rejected defense counsel’s argument, stating as follows:

 

The Court notes in regard to the motion of defendant * * * the factors to be evaluated in determining whether multiple violations constitute a single behavioral incident are unity of time, place, and their criminal objective.  This case certainly meets the requirements of unity of the time and the place, but does not meet the requirement of a criminal objective in that defendant in regard to the criminal damage to property and attempted theft of the motor vehicle is engaged in the conduct of attempting to steal a motor vehicle while the assault offense arose out of an attempt to get away. 

 

Accordingly, the district court sentenced Cruz to 33 months for the assault conviction and imposed a concurrent sentence of 12 months and 1 day for the attempted theft conviction.  This appeal followed.

D E C I S I O N

 

1.         Cruz claims that the district court erred in permitting the prosecutor to cross-examine Cruz concerning Cruz’s prior conviction for shoplifting. 

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(a).  A trial court’s evidentiary ruling under this rule will be sustained absent a clear abuse of discretion.  State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979).

            Here, defense counsel did not object to the prosecutor’s questions concerning Cruz’s prior convictions.  See State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983) (declining to analyze issue concerning prosecutor’s cross-examination of defendant as to prior convictions and facts underlying convictions where defense counsel did not object until series of questions had already been asked and then did not state grounds for objection).  Cruz, however, argues that we should review the district court’s failure to prevent the prosecution’s line of questioning, as this line of questioning constituted plain error having the effect of denying Cruz his right to a fair trial.  See, e.g., State v. Williams, 525 N.W.2d 538, 544, 549 (Minn. 1994) (reversing conviction where prosecutor’s conduct constituted plain error).  As discussed below, however, this case does not demonstrate plain error. 

            Cruz correctly observes that a prior conviction for misdemeanor shoplifting does not constitute a crime involving dishonesty within the meaning of Minn. R. Evid. 609.  State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982).  Further, when cross-examining a witness, a prosecutor generally may not elicit testimony concerning the facts underlying prior convictions used to impeach a defendant’s credibility.  State v. Edwards, 343 N.W.2d 269, 273 (Minn. 1984).  One notable exception arises when the defense counsel “opens the door” to such testimony by asking questions on direct which lend themselves to some exploration of the underlying facts of the prior convictions.  Id.  For example, if defense counsel raises the subject of a defendant’s prior convictions on direct examination in an attempt to minimize his role in the prior offenses, the prosecutor is justified in conducting a limited exploration of the facts underlying the prior conviction.  State v. McDaniel, 534 N.W.2d 290, 293-94 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995).

            Here, during direct examination of Cruz, defense counsel elicited Cruz’s testimony concerning the prior shoplifting conviction.  Defense counsel elicited this testimony immediately before delving into the subject of Cruz’s attempt to steal Rose’s car.  The apparent motivation behind this strategy was to draw the sting out of an expected attack by the prosecutor, or perhaps to attempt to show that Cruz is a petty thief and not the type of person who would normally commit an assault.  The prosecutor did not inquire as to the specifics of Cruz’s shoplifting conviction, but merely reiterated that Cruz admitted to the crime.  Thus, defense counsel “opened the door” to a limited inquiry concerning the shoplifting conviction.  At worst, given the prosecutor’s actual inquiry, the prosecutor elicited cumulative evidence.  Moreover, defense counsel did not object to the prosecutor’s questions and therefore we need not further scrutinize the prosecutor’s questions on cross-examination. See Abraham, 338 N.W.2d at 266.

2.         Both Cruz and the state agree that the district court erred in imposing separate sentences for the attempted automobile theft and second-degree assault charges.

Subject to certain enumerated exceptions,

if a person’s conduct constitutes more than one offense * * * the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.  All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

 

Minn. Stat. § 609.035, subd. 1 (2000).  “If section 609.035 applies, multiple sentencing is prohibited, including the imposition of concurrent sentences.” State v. O’Hagan, 474 N.W.2d 613, 622 (Minn. App. 1991) (citing Langdon v. State, 375 N.W.2d 474, 476 (Minn.1985)), review denied (Minn. Sept. 25, 1991). 

For the purposes of section 609.035, whether multiple offenses were part of the same behavioral incident is a factual determination that will not be reversed on appeal unless clearly erroneous.  State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996) (citing Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986)), review denied (Minn. Dec. 17, 1996).

Among the factors to be considered in determining whether two offenses arose out of a single behavioral incident are the singleness of purpose of the defendant and the unity of time and of place of the behavior.

 

State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (citation and quotation marks omitted).

Therefore, to determine if the offenses arose from a single behavioral incident, we generally consider the factors of time and place and whether a defendant is motivated by a single criminal objective in committing two intentional crimes.

Id.

As the state points out, it is well-established that that

multiple sentences may not be used for two offenses if the defendant, substantially contemporaneously[,] committed the second offense in order to avoid apprehension for the first offense.

 

State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991) (citations omitted).  Because attempts to evade apprehension generally constitute the same behavioral incident as the underlying crime and because there is no evidence of any other motive for Cruz’s actions, the district court erred in imposing separate sentences for the attempted theft and the assault.  We vacate the sentence imposed for attempted automobile theft and remand for re-sentencing on the assault charge, pursuant to the sentencing guidelines in effect at the time of the conviction.

Affirmed in part, reversed in part, and remanded.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.