This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Howard Neal, petitioner,


State of Minnesota,


Filed December 11, 2001


Crippen, Judge


Ramsey County District Court

File No. K799425


Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)


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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            Citing numerous errors, appellant Howard Neal disputes the trial court’s denial of postconviction relief.  We affirm, concluding that there is no merit in any of appellant’s assertions.


            In October 1999, a jury convicted appellant of one count of kidnapping C.T. and two counts of first-degree aggravated robbery of C.V. and C.T.  Respondent, the state, moved for an upward departure from the presumptive sentences for kidnapping and aggravated robbery of C.T. under the dangerous-offender statute[1] and because of aggravating factors.  The trial court sentenced appellant to (a) the statutory maximum of 40 years for the kidnapping of C.T.; (b) a concurrent sentence of 108 months for the aggravated robbery of C.T.; and (c) a consecutive sentence of 96 months for the aggravated robbery of C.V.  Appellant filed a direct appeal of his conviction to this court but then requested a dismissal of his appeal to determine if it were necessary to supplement the record with the postconviction process.  In July 2000, this court dismissed appellant’s direct appeal without prejudice.

            After abandoning plans for a direct appeal, appellant filed a petition for postconviction relief requesting that the trial court set aside his convictions, vacate his sentence, and grant him a new trial, or in the alternative, a resentencing.  The postconviction court denied appellant’s petition, ultimately with findings of fact clarifying its intent in sentencing appellant as a dangerous offender.  The court found appellant to be a danger to public safety and adopted the aggravating factors briefed and argued by respondent. 


            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  (citation omitted). 


            Appellant claims that the trial court violated his constitutional rights to due process and a fair trial by permitting respondent to introduce evidence of his refusal to participate in a video lineup.  Appellant contends that such evidence was irrelevant and unfairly prejudicial because it led the jury to an “unfavorable inference” that “substantially influenced the verdict.”  Constitutional error “will be found prejudicial if there is ‘a reasonable possibility’ that the error complained of might have contributed to the conviction.”  State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (citation omitted). 

Appellant cites no authority for the proposition that admitting evidence of a defendant’s refusal to participate in a lineup creates a constitutional error.  The only authority on record states the contrary assertion, that evidence of a defendant’s refusal to participate in a lineup is admissible at trial.  People v. Johnson, 842 P.2d 1, 20 (Cal. 1992) (holding that evidence of a defendant’s refusal to participate in a lineup is admissible at trial because it is not protected by self-incrimination privilege).  Even if there was error, it was not prejudicial to appellant.  As respondent suggests, this evidence was not necessarily employed to show that the defendant feared police identification procedures, but was probative of the state’s thorough effort to determine correctly the identification of this offender.  Furthermore, no special attention was drawn to the officer’s testimony that appellant refused to participate in a video lineup.  We have no reason to believe that admission of this evidence prejudiced appellant or contributed to his conviction.  See Larson, 389 N.W.2d at 875 (constitutional error is prejudicial if there is a reasonable possibility it contributed to the conviction).  


            Appellant alleges that the trial court erred when it admitted appellant’s three prior convictions for impeachment purposes.  Whether the probative value of prior convictions outweighs their prejudicial effect is a matter within the discretion of the trial court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The 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). 

The trial court found three of appellant’s prior felony convictions admissible for impeachment if he chose to testify: (1) simple robbery (1993); (2) tampering with a witness in the first degree (1994); and (3) possession of a pistol by a felon (1996).  The trial court ruled that, pursuant to Minn. R. Evid. 609, the three felony convictions had impeachment value and allowed the jury to see the whole person to assist them in weighing appellant’s credibility.

Appellant contends that the trial court’s findings are insufficient.  But the Minnesota Supreme Court has held that impeachment by prior convictions allows the jury to see the “whole person” and to judge better the witness’s credibility.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  If a defendant’s credibility is the central issue in the case and if the jury must choose between the defendant’s credibility and another witness’s credibility, then the need for the impeachment evidence is even greater.  Ihnot, 575 N.W.2d at 587.  Here, appellant’s credibility was central to the case because he had been identified by four witnesses, and he would have been the only witness for the defense.  Appellant also argues that, because the simple robbery and gun possession charge do not involve truth or falsity, they have no bearing on his credibility.[2]  But a crime need not directly relate to truth or falsity to have impeachment value.  Gassler, 505 N.W.2d at 67.

Appellant also contends that the trial court abused its discretion in determining the admissibility of evidence on convictions of simple robbery and possession of a firearm because they are similar to the aggravated robbery charges.  Although the courts recognize a heightened danger that the jury will use the evidence not only to impeach but also substantively, if the crimes are similar, they have also upheld trial court decisions allowing impeachment with evidence of crimes more similar to the charged offense than the prior offenses admitted here.  See, e.g., Ihnot, 575 N.W.2d at 587-88 (affirming a trial court’s determination that the probative value of a prior conviction for criminal sexual conduct in the third degree outweighed prejudice arising from its similarity to the crime charged, criminal sexual conduct in the first degree); State v. Hochstein,623 N.W.2d 617, 625 (Minn. App. 2001) (affirming a trial court’s finding that the probative value of a prior conviction for possession of methamphetamine outweighed prejudice arising from the same crime charged).  In addition, as respondent points out, simple robbery does not involve the use of a gun, and possession of a gun does not imply using it in a robbery.  Taking into account these considerations, the court did not abuse its discretion.


Appellant argues that he was denied his constitutional rights to due process and a fair trial because the jury was told that appellant had been arrested before and because the jury was shown a photo array with appellant in jail clothing revealing a second prior arrest.  Appellant contends that these facts were prejudicial because they informed the jury of his criminal history. 

Trial courts should use caution in admitting mug shots of the defendant and should admit them only if their probative value substantially outweighs their prejudicial effect.  State v. McAdoo, 330 N.W.2d 104, 107 (Minn. 1983).  The danger in admitting mug shots is that jurors might infer from them that the defendant has committed other crimes.  State v. Craig, 359 N.W.2d 70, 73 (Minn. App. 1984); State v. Hatton, 389 N.W.2d 229, 235 (Minn. App. 1986).  Even if appellant’s counsel did not object to the evidentiary ruling on the mug shot, appellant is not precluded from seeking relief on this issue.  State v. Gluff, 172 N.W.2d 63, 65 (Minn. 1969).  When appellant’s counsel fails to object to admission of evidence, this court reviews whether the admission constituted plain error.  State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998).  Appellant must show that the ruling was plain error and substantially affected the outcome of the case.  State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).

            The photos used here were cropped to eliminate booking data and other indicia that the photos were taken in connection with an arrest.  But appellant argues that the pictures are still prejudicial because they clearly depict appellant in jail garb.  To the contrary, the picture depicts appellant wearing a red shirt, and it is not obvious, as appellant proposes, that he is in jail clothing.  Neither the words nor the characterization of the pictures clearly indicated an error.


Appellant argues that respondent failed to follow the procedural rules in amending the original complaint, and thus his sentence should be vacated.  The trial court has sound discretion to allow amendments to complaints and will not be reversed absent abuse of that discretion.  Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).  A criminal complaint may be amended before verdict if no additional or different offenses are charged and if substantial rights of the defendant are not prejudiced.  Minn. R. Crim. P. 17.05.  Prior to a trial, the court is free to allow an amendment charging additional offenses in a criminal complaint.  State v. Guerra, 562 N.W.2d 10, 12 (Minn. App. 1997).  After trial has begun and jeopardy has attached, an amendment is permitted only if it does not prejudice substantial rights of the defendant.  Id. at 12-13.

Before the trial commenced, respondent amended the complaint to include the charges of kidnapping and attempted aggravated robbery in the first degree of C.T.  The original complaint referred to the robberies of both victims, but did not contain any details with regard to C.T.  Based on the file and the original complaint, the trial court found probable cause for the amended complaint.  Because respondent amended the complaint before the trial began, appellant had notice of the change and had time to prepare a defense.  He has not shown that his rights were substantially prejudiced. 

            Appellant further argues that respondent violated the Minnesota Rules of Criminal Procedure by having the same individual sign the complaint as both the complainant and the prosecutor.  Minn. R. Crim. P. 2.01 (requiring a complaint to be sworn by complainant); Minn. R. Crim. P. 2.02 (requiring a complaint to be approved by a prosecutor before filing).  But appellant’s counsel did not object at the trial court to signing of the amended complaint.  Moreover, because appellant does not take issue with the amendment itself, but with the manner in which the prosecutor amended the complaint, respondent’s conduct can be characterized as a technical error that did not affect appellant’s substantial rights.  Pursuant to Minn. R. Crim. P. 31.01, respondent’s actions constitute harmless error that can be disregarded. 

            Appellant also argues that respondent improperly amended a count of attempted aggravated robbery to a completed aggravated robbery charge because (1) the prosecutor did not file a written amendment; (2) the complainant did not sign the amendment; (3) the judge did not make a finding of probable cause; and (4) the prosecutor did not approve the charge.  Before trial, respondent realized that C.T.’s testimony would support a charge stating a completed robbery, and thus sought to amend the original complaint, which stated an attempted robbery.  Because respondent amended the charge before the trial began, appellant had notice of respondent’s intention to proceed on a completed robbery charge and was not prejudiced by the amendment.  Cf. Guerra, 562 N.W.2d at 13.  The trial court found that the new information from C.T. warranted the amendment.  The record shows no prejudice to appellant from respondent’s procedural actions.  See Minn. R. Crim. P. 31.01.


Appellant argues that the trial court’s sentence was improper because: (1) the court did not make findings of public dangerousness; (2) the departure to the statutory maximum was not justified by substantial and compelling reasons; and (3) the consecutive sentences unfairly exaggerated his crime.  The decision to depart from the sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Appellant cites no authority for his contention that a trial court cannot supplement its findings with respect to a sentence imposed under the dangerous offender statute.  It does not follow that, because the trial court further articulated its findings in a supplemental order, those facts were not present at the time of sentencing.  Moreover, appellant provides no authority or factual analysis to support his contention that the consecutive sentences imposed here unduly exaggerated the criminality of his acts.  Because this issue was not briefed or argued, it is not properly before this court.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (issues not briefed on appeal are waived) review denied (Minn. Aug. 5, 1997).



[1]Minn. Stat. § 609.1095, subd. 2 (2000).


[2] Here, tampering with a witness is clearly a crime of dishonesty and comes in to impeach.