This opinion will be unpublished and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

C4-01-1750

 

State of Minnesota,

Respondent,

 

vs.

 

Matthew Luke Magney,

Appellant.

 

Filed September 10, 2002

Affirmed

Kalitowski, Judge

 

Stearns County District Court

File No. K8002118

 

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

 

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

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

 

            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Matthew Luke Magney appeals from his conviction of third-degree criminal sexual conduct, arguing (1) that the district court abused its discretion in admitting evidence of appellant’s failure to contact police as requested before he was arrested; (2) that the court erred in ruling that appellant could not impeach the juvenile victim with evidence of her admission to theft charges; and (3) that the cumulative effect of the errors denied him a fair trial.  We affirm.

D E C I S I O N

 

            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            Appellant contends that the district court erred by admitting evidence that appellant had failed to contact the police as requested before he was arrested.  Appellant argues that his failure to talk to police did not, as the district court found, constitute evidence of flight.

            Over appellant’s relevance objection, the district court admitted evidence by the investigating officer that he attempted to contact appellant on five occasions, and on two of those occasions he heard people (who were not identified) behind the door at appellant’s residence, but no one answered.  The district court allowed this evidence after respondent argued it was admissible as evidence of flight. 

            Regardless of whether the evidence constitutes evidence of flight the district court has broad discretion in determining what constitutes relevant evidence.  See id. (stating district court has broad discretion in evidentiary rulings).  Relevant evidence is evidence

having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 

 

Minn. R. Evid. 401. 

Generally, all relevant evidence is admissible, Minn. R. Evid. 402, but may be excluded if the danger of unfair prejudice or confusion substantially outweighs the evidence’s probative value.  Minn. R. Evid. 403.  Here, the evidence was relevant to whether appellant was trying to avoid talking to the police, which could provide some circumstantial proof of guilt.  Moreover, the prejudicial effect of this evidence is negligible, since, as appellant argued at trial, there could be many reasons for not wanting to talk to the police.  Thus, we conclude the district court did not abuse its discretion in determining the evidence was relevant. 

            And even if the district court abused its broad discretion in admitting the evidence, we conclude that any error was harmless.  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

            In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)). 

Here, the victim, B.R., and appellant’s daughter, A.G., both testified that appellant engaged in sexual intercourse with B.R.  Additionally, both witnesses’ testimony was generally consistent with earlier statements.  Because this evidence was sufficient in and of itself to convict appellant, we conclude that even if the admission of the so-called flight evidence was error, it was harmless.      

II.

            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).  Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The district court’s decision will not be reversed absent a clear abuse of discretion.  Id. at 209.

            Appellant contends that the district court abused its discretion by not allowing appellant to impeach B.R. with evidence of two juvenile thefts.  We disagree.  Generally, Minn. R. Evid. 609(a) governs impeachment by evidence of a conviction of crime.  But Minn. R. Evid. 609(d) governs impeachment by juvenile adjudications and states, “[e]vidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by state or federal constitution.” 

            The district court noted that if B.R. committed the theft offenses as an adult there would be a stronger argument for allowing them for impeachment, but found that the thefts were not convictions under Minnesota law, and similarly were not crimes of dishonesty so they could not be used for impeachment. 

            Appellant contends that his confrontation clause rights required that he be allowed to impeach B.R. with evidence of her juvenile thefts.  We disagree.  In State v. Spann, the Minnesota Supreme Court determined that “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.”  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998) (quoting Davis v. Alaska, 415 U.S. 308, 319, 94 S. Ct. 1105, 1112 (1974)).  But the Spann court noted that cases following Davis have ordinarily not allowed the use of juvenile adjudications for general impeachment of credibility.  Id.  The Spann court concluded:

In the absence of a specific challenge to a juvenile’s credibility demonstrating a clear motive to falsify testimony, the interest protected in Rule 609(d) should not be subordinated to the defendant’s right of confrontation.

 

Id.  In Spann, the record failed to indicate a specific basis for a challenge to the juvenile’s credibility, so the juvenile offenses were properly excluded.  Id.

            Here, appellant argues that because of her juvenile record, B.R. was on probation and, thus, had a motive to fabricate an incident explaining why she was out almost all night.  But B.R.’s testimony did not indicate that she was forcibly kept out all night, so it does not excuse or shift blame away from her for her lateness.  Thus, we conclude the record fails to provide a specific basis for attacking B.R.’s credibility, and the district court was within its discretion in not allowing the impeachment evidence. 


III.

            Appellant contends that the cumulative effect of the errors denied him a fair trial.  We disagree.  Here, at most we concluded the district court may have abused its discretion and committed harmless error in admitting as evidence of flight, evidence that appellant failed to contact police as requested.  Thus, there is no cumulative effect of errors, and appellant was not denied his right to a fair trial. 

            Affirmed.