This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Nicole Star Dunn,



Filed February 11, 2003


Halbrooks, Judge



Cass County District Court

File No. K601845


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


Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484-3000 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant was convicted by a jury of first-degree burglary, second-degree assault, and providing false information to a peace officer.  Appellant argues that (1) the evidence was insufficient to prove lack of consent to enter Howard’s house, (2) the evidence was insufficient to prove that Howard suffered substantial bodily harm, and (3) the trial court abused its discretion by permitting the state to impeach appellant with a prior felony conviction.  Because the jury could weigh the evidence to reasonably conclude that appellant lacked permission to enter Howard’s home and that Howard suffered substantial bodily harm and the trial court did not abuse its discretion in concluding that the probative value of appellant’s prior conviction outweighed the prejudicial effect, we affirm.


            Rosemary Howard hosted a two-day party at her home on July 19-20, 2001.  On the night of July 20, Beejay Smith was assaulted in Howard’s home, resulting in a trip to the hospital and stitches.  Smith was not certain but believed that Howard had assaulted her.  The following afternoon, Smith and several other girls, Simone Fairbanks, Taleeya Laushe (Smith’s sister), Kim Hare, Trista LaDuke, and appellant Nicole Star Dunn gathered and went to Howard’s home.  Smith testified that she wanted to beat up Howard and retrieve her shoes from Howard’s house.  The girls brought weapons to Howard’s home, including bats, a stick, and a cue-ball wrapped in a rag.  When they reached Howard’s home, Howard was sleeping off a blackout from the previous night.  The door was unlocked.  Testimony at trial was inconsistent as to whether or not the door was closed. 

Without knocking or announcing their entry, the group walked into Howard’s home.  When they saw blood stains in the living room, Smith and Hare became more angry, concluding that it was Smith’s blood from the night before.  Appellant slapped Howard to wake her, later testifying that she struck Howard so that the others would not beat Howard while she was asleep.  Appellant did not otherwise touch Howard.  Once Howard was awake, Smith and Hare beat her.  After about ten minutes, the girls left Howard on the floor, covered in blood.

Howard testified that after the assault she walked to her cousin’s house to get help.  She also testified to her injuries, including a concussion and the need for staples in her head and stitches near her eye.  Photographs admitted into evidence depicted the extent of the injuries and bleeding caused by the assault.  The jury deliberated for about 90 minutes and found appellant guilty on all counts.  This appeal follows.


1.         Consent


            Appellant argues that the evidence was insufficient as a matter of law to prove lack of consent to enter Howard’s home, one of the elements of first-degree burglary.  In support, she contends that Howard never testified that the girls lacked permission to enter her home and that the circumstantial evidence was conflicting as to permission. 

In considering a claim of insufficiency of 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, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In fact, when the resolution of a case rests on conflicting testimony, particular deference is given to the jury because weighing credibility is its function alone.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  Moreover, this court must assume that 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 have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

But because this case rested primarily on circumstantial evidence, the conviction requires greater scrutiny.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The evidence must point unerringly to the accused’s guilt rather than give rise to a suspicion of guilt.  Id.

            Minn. Stat. § 609.582, subd. 1 (2000), states that

[w]hoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree * * * if:

(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters * * *;


* * * *


(c) the burglar assaults a person within the building * * * .


In order to obtain a conviction for burglary in the first degree, one element that the state had to establish beyond a reasonable doubt was that appellant entered Howard’s house “without the consent of the person in lawful possession.”  Minn. Stat. § 609.581, subd. 4(a) (2000). 

            The witnesses gave conflicting testimony on the issue of consent to enter Howard’s home.  No one claimed that Howard specifically gave them permission.  To the contrary, Laushe and Hare testified that they did not have consent.  The jury also heard testimony that those attending the party the previous night would come and go.  But even if the girls had consent to enter Howard’s home because they were generally friendly with each other and they had been at Howard’s party the night before, the jury could have concluded that they exceeded the scope of the consent when they went into her bedroom the next day with the intent to assault her.  See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984) (holding that the burglary of a drugstore was complete once defendant exceeded the scope of consent given to him and entered a storage room with intent to reach a locked pharmacy and steal controlled substances).

Credibility of the witnesses, several of whom testified to faulty or partial recollection of the facts due to their impaired states of mind, was a critical issue at trial.  Appellant and Smith both admitted that they had lied to police during the investigation.  Based on the conflicting testimony, the jury could have reasonably concluded that appellant lacked permission to enter Howard’s home. 

2.         Substantial Bodily Harm


Appellant also argues that the evidence was insufficient to prove that Howard suffered substantial bodily harm as a result of the assault for the following reasons:  (1) no medical records were admitted into evidence; (2) there was no expert medical testimony to corroborate her claims of injury; (3) photographs of Howard’s injuries showed only “some” bleeding and lacerations; and (4) Howard was ambulatory, alert, and oriented after the incident.  Minnesota statutes define “substantial bodily harm” as

bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.


Minn. Stat. § 609.02, subd. 7a (2000).  While few Minnesota cases specifically define substantial bodily harm, we employ common, ordinary usage in defining the term “substantial” as a “considerable size or amount.”  State v. Williams, 451 N.W.2d 886, 890 (Minn. App. 1990). 

            While it might be helpful to a jury, there is no evidentiary requirement that the state corroborate the victim’s testimony concerning physical injuries with an expert’s opinion or corresponding records of medical treatment.  Here, Howard herself testified and the jury was given copies of photographs taken of Howard by both the sergeant who spoke with her at the hospital and the investigator who met with her once she returned home.  The investigator’s photographs showed the injuries on Howard’s face and head and the blood in her bedroom.  While appellant contends that not all of Howard’s injuries in the photographs resulted from the assault, that was a subject of cross-examination at trial.  In addition, the jury heard appellant’s argument that Howard was not substantially harmed based on the undisputed fact that she walked first to her aunt’s house and then to her cousin’s in order to get help.  Both houses were proximate to Howard’s.

Based on the high degree of deference we give to the jury to determine the weight and credibility of witness testimony, we conclude that a jury could have reasonably determined that Howard suffered substantial bodily harm.  See Folkers, 581 N.W.2d at 327 (stating that it is the exclusive role of the jury to determine the weight and credibility of witness testimony).

3.         Impeachment


            Appellant’s third argument is that the trial court abused its discretion in permitting the state to impeach her with a prior felony conviction because (1) the conviction was not probative of untruthfulness, (2) the court ruled that the nature of the felony could not be disclosed to the jury, and (3) it was important that appellant testify at trial.  A trial court’s ruling on the admissibility of a prior conviction for impeachment purposes is reviewed under an abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Trial courts have considerable discretion when determining whether or not to admit impeachment evidence.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  

            Evidence of a prior conviction is admissible to impeach a witness when the probative value of the prior conviction outweighs the prejudicial effect.  Minn. R. Evid. 609(a)(1).  In balancing these competing interests, the trial court must consider five 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, 537-38 (Minn. 1978)).  The trial court “should demonstrate on the record that it has exercised the discretion accorded by Minn. R. Evid. 609(a)(1) after considering and balancing the [Jones] factors.”  State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991). 

            Here, the trial court did not specifically address each of the Jones factors on the record, but the court followed the reasoning expressed in Jones, stating that it would permit evidence of a prior assault in order to “give a full picture of the character of the defendant for purposes of impeachment.”[1]  While recognizing that courts should admit evidence of a recent prior conviction only after careful scrutiny, the trial court noted the valid role of the prior conviction in this case because credibility was a significant issue.  The trial court determined that it would not cause undue prejudice to permit evidence of appellant’s prior felony conviction of assault, when the court restricted testimony as to the nature of the crime.

As to the first Jones factor, appellant argues that admitting evidence of her prior felony conviction had no value because the prior conviction did not implicate her propensity for truthfulness.  But the fact that a prior conviction does not implicate truth or falsity does not strip it of impeachment value.  Gassler, 505 N.W.2d at 67; see also State v. Zernachel, 304 N.W.2d 365, 366 (Minn. 1981) (concluding that as long as the evidence of the prior felony does not unduly prejudice the defendant, a prior felony that has little bearing on the truth-seeking process of credibility is admissible).  Admitting evidence of a felony conviction has probative value because it enables the jury to view the complete person and to better judge her testimony.  Gassler, 505 N.W.2d at 67.

            Second, we must examine the defendant’s subsequent history of criminal acts and the date of the conviction “to determine whether the prior offense has lost its relevance over the passage of time.”  State v. Vanhouse, 634 N.W.2d 715, 719-20 (Minn. App. 2001) (citation omitted), review denied (Minn. Dec. 11. 2001).  Here, appellant was convicted of assault in the second degree on October 22, 2001.  The underlying assault occurred approximately one month prior to the assault in this case.  The proximity of the crimes suggests relevance.  Because the defense elicited testimony that appellant had only one prior felony and the date of the conviction, appellant’s concern that the jury would believe that she had an extensive criminal history was reduced.  Third, the similarity of the prior conviction would ordinarily raise the possibility of prejudice addressed in the third Jones factor.  But the court addressed that issue by its ruling that the nature of the prior felony was not admissible. 

            Fourth, if admitting impeachment evidence would cause a defendant not to testify, the evidence can be excluded.  Gassler, 505 N.W.2d at 67.  But if a defendant’s credibility is the central issue of a case, “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).  Here, the jury heard conflicting testimony from numerous witnesses, all describing the same incident.  The importance of appellant’s testimony and credibility are apparent.  Allowing reference to appellant’s prior felony did not foreclose her testimony.  In addition, the court instructed the jury to consider appellant’s prior conviction only as it affected her credibility.  Based on this record, we conclude that the trial court did not abuse its discretion by allowing evidence of appellant’s prior conviction.



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

[1] Even when the trial court fails to make a record on the Jones factors, the reviewing court may apply the factors and satisfy the test.  Lund, 474 N.W.2d at 172.