This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Tony Orlando Smith,



Filed March 25, 2003


Gordon W. Shumaker, Judge


Ramsey County District Court

File No. K8012797


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


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


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


In his appeal from his conviction of possession of a pistol by an ineligible person, Smith challenges the sufficiency of the evidence, the admission of allegedly improper character evidence, and the district court’s departure from the sentencing guidelines.  Because we find no error as to any of the challenged issues, we affirm.


Appellant Tony Orlando Smith was convicted after a jury trial of the crime of possession of a pistol by an ineligible person.  Before trial, Smith stipulated that he was ineligible to possess a firearm.  His possession of the pistol allegedly took place on August 5, 2001, at the home of Smith’s girlfriend, Angel Buechner.

At the trial, Buechner and her 10-year-old son, D. H., testified that they saw Smith with a gun that night.  D. H. said that Smith and his mother had been out on a date and when they returned they were arguing.  At one point, Smith walked onto the porch and returned with a gun in his hand.  Smith then went into Buechner’s bedroom where her other two sons were sleeping, sat on the bed, played with the gun, and then put a bullet in it.

Buechner testified about her argument with Smith and stated that Smith walked onto the porch, and when he came back into the house he had a silver handgun in his hand.  Later, when Smith began to come out of the bedroom, he first stood in the doorway and showed the gun to her.

Police searched Buechner’s house on August 5 and found a .22-caliber silver pistol under the carpet in one of the bedrooms.  There were no identifiable fingerprints on the gun.

Smith testified in his own defense and revealed that he had been convicted of the crimes of attempted aggravated robbery, first-degree aggravated robbery, and first-degree criminal damage to property.  He denied having or ever touching a gun on August 5.  He explained that Buechner was afraid of another resident of the house, Rico Fennell, and that she had requested that Smith ask Fennell to leave.  Smith testified that during discussions with Fennell, the latter’s father pulled a gun on Smith and told him to leave the house.

On cross-examination, the prosecutor asked Smith why Buechner would lie about having seen him with a gun.  He replied:

Out of just being scared, you know, to tell the truth.  I suppose that, you know, she’s in fear that maybe someone would do something to her and her kids.


Then, without objection, the following occurred:

[Prosecutor]   Q.        She is not afraid of you because of your four felony convictions, three of which are involving aggravated robbery?


[Smith]            A.        She knew that before she fell in love with me.


Upon Smith’s conviction, the district court departed durationally upward from the presumptive 60-month sentence and imposed a term of 84 months.


On appeal, Smith contends that (1) the evidence was insufficient to support his conviction, (2) the prosecutor’s reference to his prior felony convictions constituted improper character evidence, and (3) there was no proper basis for a departure from the sentencing guidelines.

Sufficiency of the Evidence

In his pro se brief, Smith argues that the evidence was insufficient to support his conviction.  Our review of that claim is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, is legally sufficient to allow the jury to reach its verdict of guilty.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing 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).  We 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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Smith’s claim is that, because the police did not find him in possession of the pistol and neither eyewitness could positively identify the actual pistol that he had, the evidence does not support his conviction.

Direct evidence of Smith’s possession of the pistol came from Buechner and D. H., both of whom saw the gun in Smith’s hand.  Credibility determinations are left to the jury.  Moore, 438 N.W.2d at 108.  Furthermore, Buechner testified that the pistol received in evidence was the exact gun that she saw in Smith’s hand on August 5, 2001.

We conclude that this evidence, in light of Smith’s stipulation as to his ineligibility to possess a firearm, was sufficient to support his conviction beyond a reasonable doubt.

Evidence of Prior Convictions

Smith argues that the prosecutor’s reference to his four felony convictions was an improper attempt to show his bad character.  Minn. R. Evid. 404(a) prohibits the introduction of evidence of a person’s character “for the purpose of proving action in conformity therewith on a particular occasion * * * .”

Smith himself introduced evidence of his prior criminal record in his own direct examination.  Nevertheless, the prosecutor would not be permitted to argue or to suggest that the jury infer that, because Smith committed crimes in the past, he probably acted in conformity with his criminal proclivities and committed this crime.  See State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (holding that evidence of other crimes is inadmissible to prove that the defendant acted in conformity with his past criminal conduct).  But in addition to revealing his felony record, Smith testified that Buechner was lying about the gun possession, and he explained her motive for lying as her fear of “someone,” that is, someone other than him.  The purpose of the prosecutor’s question was to challenge Smith’s theory of Buechner’s dishonesty and to suggest that, if Buechner had fear, the fear most plausibly was of him rather than of another.  Thus, the prosecutor’s attack was not directed at Smith’s character, which he had already revealed, but at the credibility of Smith’s proposition regarding a witness’s motive for giving certain testimony.  For this purpose, the evidence did not violate the rule 404(a) prohibition.

Even assuming the impropriety of the evidence, Smith failed to object.  “Generally, failure to object to evidence * * * constitutes waiver” of error on appeal.  State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (citation omitted).  But we may review the alleged error if “appellant shows that admission of the evidence was plain error.”  Id.

To establish plain error, Smith must show that allowing the prosecutor’s question was (1) error, (2) that was plain, and (3) the error affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  As we have indicated, the question does not appear to have been error at all, and certainly it is not plainly so because it was a response Smith himself invited by offering an evaluation of the credibility of a witness’s testimony.  Nor is it likely that this single question by the prosecutor, which called attention to a criminal record that Smith had already disclosed, affected Smith’s substantial rights.  The district court instructed on the limited purpose for which the jury could consider evidence of prior convictions.  We do not presume that the jury considered that evidence, if at all, for any other purpose than an evaluation of Smith’s credibility.  See State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998) (stating that “[c]ourts presume that juries follow the instructions they are given.”).  Smith has failed to show plain error.

Sentencing Departure

When reviewing sentencing departures, we recognize the district court’s broad discretion.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  One reason cited for the district court’s upward durational departure from the 60-month presumptive sentence to 84 months was the court’s finding that Smith is a dangerous offender under Minn. Stat. § 609.1095, subd. 2 (2000).  The dangerous-offender statute gives the district court discretion to depart upward from a presumptive sentence to the maximum statutory term when (1) the offender is convicted of a “violent crime” that is a felony that he committed when he was at least 18 years old, (2) he has “two or more prior convictions for violent crimes,” and (3) he is a “danger to public safety” because of his “past criminal behavior.”  Id.   

Smith’s conviction of possession of a firearm by an ineligible person is a violent crime under the statute.  Id., subd. 1(d) (2000).  Smith was more than 18 years of age on August 5, 2001, when he possessed a firearm.  He does not contest that he was previously convicted of three violent crimes: (1) attempted aggravated robbery in 1994 and (2) two counts of aggravated robbery in 1996.  The district court properly found on the record that Smith had two or more prior felony convictions for violent crimes.

Smith argues that, although his present conviction is for a violent crime and he has past convictions for violent crimes, the evidence does not show that he is a danger to public safety.  He contends that he does not have the high frequency of violent crimes that would properly put him into the public-danger category.

The court found that Smith’s past violent crimes occurred within a brief period, that his record on probation has shown violations in the commission of additional crimes, and that most of his adult crimes, including the offense currently sentenced, involved the possession or use of firearms.  The court did not abuse its discretion in finding Smith a danger to public safety or in departing based on the dangerous-offender statute.