This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Shane Lavern Lokken,
St. Louis County District Court
File No. K601300374
John M. Stuart, Minnesota Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and, Minge, Judge.
Appellant seeks review of his conviction for first-degree criminal sexual conduct, arguing that the trial court abused its discretion by allowing the state to impeach him with his prior conviction for vehicular homicide. Appellant also argues that there was prosecutorial misconduct during cross-examination and closing argument. We affirm.
Appellant Shane Lokken lived in Hibbing with his wife, Darla Lokken, and their two-year-old daughter in the basement of the home of Darla’s parents. Appellant had visitation on alternate weekends with C.L., his daughter from a prior marriage.
In 1999 and 2000, when C.L. was between the ages of ten and eleven, C.L. began objecting to visitation with appellant. In January and February 2001, C.L. missed three consecutive visits. On February 22, 2001, C.L. asked her mother, Sundie Gehrke, whether anyone had ever “monkeyed” with her. C.L. explained that appellant had been touching her in places that she did not like.
The following day, Gehrke and her husband, Rodney Gehrke, arranged for C.L. to be interviewed by a social worker from St. Louis County Social Services. Investigators from the Hibbing Police Department observed the interview. During the interview, C.L. explicitly described multiple sexually abusive acts committed by appellant.
On February 24, 2001, appellant was interviewed by Officer David Johnson and stated that any contact with C.L. that could have been deemed inappropriate would have been incidental and without sexual intent. On March 13, 2001, appellant was interviewed a second time. While again denying any sexual abuse of C.L., appellant stated that he had ordered C.L. to take her pants and underwear off so that he could examine her for signs of sexual activity. C.L. denied appellant ever performed such an examination.
Appellant was charged in St. Louis County District Court with one count of first- degree criminal sexual conduct under Minn. Stat. § 609.342, subd.1(g) (2000). Appellant’s jury trial began October 29, 2001. Prior to trial, appellant moved to prevent the state from impeaching him with any of his prior felony convictions. The district court ruled that appellant could be impeached with his conviction for criminal vehicular homicide. That conviction resulted from a fatal car accident that occurred in September 1993 when appellant was driving while intoxicated. However, the district court decided that allowing appellant to be impeached with the four accompanying convictions for criminal vehicular operation resulting in substantial bodily harm might unfairly prejudice appellant and therefore did not allow evidence of those convictions.
Recognizing that his prior felony would be used to impeach him, appellant nevertheless testified on his own behalf. During direct examination, defense counsel brought out appellant’s prior conviction and the facts of the accident leading to appellant’s conviction. During cross-examination, the prosecutor asked appellant the following questions: whether he had a prior conviction, whether he exercised poor judgment prior to the accident leading to the conviction, and whether anyone was harmed during the incident.
The jury found appellant guilty of first-degree criminal sexual conduct and the district court imposed sentence. This appeal followed.
Appellant argues that the court abused its discretion when it allowed his prior conviction to be used for impeachment purposes. 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). If the prior conviction is less than ten years old, evidence of the conviction may be admissible for impeachment purposes if the offense was punishable by imprisonment for greater than one year and if the probative value of the evidence outweighs its prejudicial effect. Minn. R. Evid. 609. Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).
To determine the probative value of the prior conviction, this court considers the five factors set forth in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). The five factors to be considered are: (1) the prior conviction’s impeachment value; (2) the date of the conviction and the subsequent history of defendant; (3) the similarity of the charged crime to the past crime; (4) the importance of defendant’s testimony; and (5) the centrality of defendant’s credibility. Id.
The first Jones factor to consider is the impeachment value of appellant’s prior conviction. Prior crimes may have impeachment value even if the crimes did not involve dishonesty or false statement. State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (stating that the jurors should be informed about what type of person is asking them to accept his word). By testifying, appellant asks the jury to accept his word. Id. Although vehicular homicide does not involve the type of character flaw that strongly indicates dishonesty or distortion of events in other settings, because it is a serious crime that indicates a serious error in judgment, appellant’s prior conviction has some impeachment value.
The second Jonesfactor evaluates the age of the prior conviction and the subsequent history of the defendant. Prior convictions are admissible if they are less than ten years old. Minn. R. Evid. 609(b); Ihnot, 575 N.W.2d at 584. Here the prior conviction occurred in 1993. The second Jones factor weighs in favor of allowing appellant’s prior conviction as impeachment evidence.
The third Jones factor compares the similarity of the prior conviction with the currently charged crime. A prior conviction can be used for impeachment if there is a low risk the jury would use it to determine guilt in the current case. Ihnot, 575 N.W.2d at 586-87 (stating that it is not prejudicial to introduce a prior conviction when the facts of the two cases are sufficiently different). Here the crimes are not similar and there is a low risk that the jury would use the prior conviction to determine guilt in this case.
The fourth Jones factor evaluates the importance of appellant’s testimony. When an alternative source of evidence exists to prove the defendant’s theory of the case, the court is more likely to allow prior-conviction evidence for impeachment. State v. Kissner, 541 N.W.2d 317, 324 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). Appellant’s testimony is less important when there is other testimony available to support his theory. Id. Appellant’s defense focused on his denial of the alleged actions and an argument that C.L. misconstrued a physical exam he claimed to have performed on her. Appellant’s family members testified that he had never sexually abused C.L. Darla Lokken and one of the investigating officers testified regarding appellant’s physical examination of C.L. Because there were alternate sources of evidence to support appellant’s defense theory, the importance of his testimony is less critical; and the use of his prior conviction for impeachment is favored by this factor.
The final Jones factor considers the centrality of defendant’s credibility at trial. A prior conviction can be used to determine a defendant’s truthfulness. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (stating the need for impeachment evidence is greater when the jury has to decide between the defendant’s credibility and the credibility of one other person). If a cautionary instruction regarding appellant’s prior conviction is given to the jury, then the jury may use information regarding the prior conviction to determine the defendant’s credibility. State v. Heidelberger, 353 N.W.2d 582, 590 (Minn. App. 1984) (stating as long as a cautionary instruction is given regarding a prior conviction, the jury can properly use the conviction to determine truthfulness), review denied (Minn. Sept. 12, 1984). Here the credibility of appellant’s account of events was central to the case. Although there were other possible witnesses, once appellant decided to testify, he was best able to provide that account. His credibility and the credibility of his story were central to the case. The jury had to determine whether to believe appellant or his daughter, C.L.
In sum, under the five Jones factors, we conclude the district court did not abuse its discretion in admitting the prior conviction as impeachment evidence.
Additionally, the state asked this court to follow the holding of a recent decision of the United States Supreme Court construing the federal counterpart to Minn. R. Evid. 609(a)(1). The Court held that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal. Ohler v. United States, 529 U.S. 753, 760, 120 S. Ct. 1851, 1855 (2000). Because we find the court did not abuse its discretion, we need not reach the issue raised by the Ohler case.
Appellant also argues that he should be granted a new trial because of prosecutorial misconduct during both the prosecutor’s cross-examination of appellant and the prosecutor’s closing argument. When a district court overrules a defendant’s objections to a prosecutor’s questions during cross-examination or statements during closing argument, this court may reverse, but only
when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.
State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citation omitted). The test for determining whether prosecutorial misconduct was harmless depends partly on the type of misconduct. In cases involving “unusually serious prosecutorial misconduct,” this court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). In cases “involving less serious prosecutorial misconduct,” the test is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 128, 218 N.W.2d at 200. More recently our supreme court said:
The court’s determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.
State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted). If the claim of misconduct arises out of the closing argument, this court considers the closing argument as a whole rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (citing State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984)).
A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. The reviewing court, however, may reverse despite the defendant’s failure to preserve the issue if the court deems the error sufficient to do so. Wahlberg, 296 N.W.2d at 420.
Appellant argues he was prejudiced during cross-examination because the prosecutor used his prior conviction to show criminal propensity. Here, the prosecutor asked appellant if he harmed people in the 1993 vehicular homicide accident. Upon receiving an affirmative answer, the prosecutor asked, “And you harmed [C.L.] now, didn’t you?” Despite the court sustaining appellant’s objection to the question, appellant argues the prosecutor used the prior conviction to insinuate a propensity by appellant to harm others. In addition, appellant argues the evidence that he had killed someone and permanently injured his wife did not aid the jury in judging appellant’s credibility. Questioning about factual details of a defendant’s prior conviction is permissible where the defendant “opens the door” to such questioning. State v. Edwards, 343 N.W.2d 269, 273 (Minn. 1984) (concluding it was proper for the prosecutor to question defendant about stabbing an off-duty police officer when defendant opened the door to such testimony). Here, appellant opened the door to questioning about his 1993 conviction by choosing to testify about the facts of the accident on direct. The court cautioned the jurors to use the facts of appellant’s conviction only to judge appellant’s credibility. We find no prosecutorial misconduct based on statements made during cross-examination.
Here, appellant argues two of the prosecutor’s statements were misconduct. First, the prosecutor stated that defendant would argue that C.L.’s allegations stemmed from her conflicts with her stepmother. Appellant argues that this statement was intended to show that he may harm C.L. because of a conflict between his wife, Darla Lokken, and C.L. Second, the prosecutor reminded the jury that during jury selection, questions were asked about the jurors’ personal experiences with sexual abuse. The prosecutor reminded the jurors that no one brought up false allegations of sexual abuse. Appellant argues that the prosecutor was asking the jurors to place themselves in C.L.’s shoes to determine whether C.L.’s allegations were false.
Appellant only challenges a few brief comments from the prosecutor’s closing arguments. Appellant did not object to these comments during the closing argument. Because the evidence against appellant was strong, even if the prosecutor’s comments were improper, it is unlikely these comments played a substantial role in the jury’s decision to convict. State v. Washington, 521 N.W.2d 35, 40-41 (Minn. 1994) (recognizing that where evidence against a defendant is strong, it is unlikely that any improper comments by the prosecutor would have influenced the jury). While the prosecutor skated close to the line of misconduct by reminding the jurors no one had mentioned false allegations of sexual abuse as part of their own life experiences, we hold that this did not rise to the level of asking the jurors to put themselves in C.L.’s shoes. Thus, we hold that the prosecutor’s statements did not rise to the level of misconduct.
Appellant argues in his pro se brief that he had ineffective assistance of counsel and that there was insufficient evidence to convict. We conclude his arguments are not meritorious, and therefore we will not disturb the jury’s verdict.