may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ryan Craig Lewis,
Clay County District Court
File No. K20158
Mike Hatch, Attorney General, Julie A. Leppink, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, LTD., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction of conspiracy to commit first-degree controlled-substance sales, appellant Ryan Craig Lewis argues that the district court abused its discretion by admitting for impeachment purposes a conviction of third-degree criminal sexual conduct. We affirm.
Undercover officer Derek Hill made a drug buy from Rene Garza at the home of a confidential informant (CI) and arranged to buy a pound of methamphetamine from Garza later the same day. Garza and Hill agreed to meet at the CI’s home to complete the sale.
When Hill arrived at the appointed time, Garza did not have the methamphetamine. After making a cell-phone call, Garza told Hill the methamphetamine was on its way. After additional time passed, Garza announced he was going to find out what was taking so long, and he left with the CI.
Garza and the CI drove to the home of Ramiro Gonzalez twice. The CI testified that the first time, Garza entered the home alone, but the second time, she accompanied Garza into the home. The CI testified that appellant was in the home along with Gonzalez, his children, and Alfredo Esquivel. When asked what she observed, the CI testified, “They were splitting up dope.” When asked what appellant was doing, she answered, “I believe they all had their hands in there somewhere.” Appellant testified that the CI never entered Gonzalez’s home that day.
Alfredo Equivel testified that appellant was involved in cutting the methamphetamine and that it was appellant who was to bring the pound of methamphetamine to the CI’s home for Hill. Esquivel also testified that the CI was never in Gonzalez’s home.
Garza and the CI returned to the CI’s home, and Garza told Hill that the drugs would be there within 30 minutes. Garza received a call on a cell phone. After waiting a few minutes, Garza stood up and said, “The stuff’s here,” and went outside. A blue Honda and a blue pickup arrived at the CI’s home at almost the same time. After getting into the Honda, Garza returned to the CI’s home with methamphetamine, and he and Hill completed their transaction. Garza was arrested as he left the area. Appellant was arrested in the blue Honda. He was charged with three controlled-substance crimes.
At trial, appellant testified that he used the blue Honda earlier that day to drive to his probation officer’s office and then left in the same car to buy some beer. Appellant testified that he was later asked to pick up Garza in the blue Honda, but when he arrived at the CI’s home, Garza told him that he no longer needed a ride.
The district court admitted for impeachment purposes appellant’s conviction of third-degree criminal sexual conduct. The conviction related to consensual sex with an underage teenager; appellant was 19 years old at the time of the offense in 1998. The district court gave a cautionary instruction to the jury to consider the evidence only as it related to appellant’s credibility. The jury acquitted appellant on two counts and found him guilty of conspiracy to commit first-degree controlled-substance sales.
D E C I S I O N
Appellant argues that because the probative value of his third-degree criminal-sexual-conduct conviction did not outweigh its prejudicial effect, the district court erred in ruling the conviction admissible for impeachment purposes.
Minn. R. Evid. 609 allows a felony conviction to be admitted for impeachment purposes if ten or fewer years have elapsed since the conviction, and if the probative value of the evidence outweighs its prejudicial effect. The district court’s ruling that the probative value of admitting the conviction outweighs its prejudicial effect must be upheld ‘“unless a clear abuse of discretion is shown.’” State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984) (quoting State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979)). Some of the factors the district court must consider to determine whether the probative value of admitting the conviction outweighs its prejudicial effect are
(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.
State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (citation omitted). Courts must also “consider whether the admission of the evidence will cause the defendant not to testify.” State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).
1. Impeachment value
Appellant argues that the prior conviction had little impeachment value because as a sexual-conduct crime, it has only a modest bearing on veracity or honesty compared to other crimes. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). But the fact that “a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value.” Brouillette, 286 N.W.2d at 707.
[I]mpeachment by prior crime aids the jury by allowing it “to see the ‘whole person’ and thus to judge better the truth of his testimony.”
Gassler, 505 N.W.2d at 67 (quoting Brouillette, 286 N.W.2d at 707) (quotation omitted). Rule 609
clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility.
Brouillette, 286 N.W.2d at 708. Also, the supreme court has affirmed the use of sexual-conduct convictions for impeachment purposes. State v. Ihnot, 575 N.W.2d 581 (Minn. 1998); Brouillette, 286 N.W.2d 702. This factor therefore weighs in favor of admissibility.
2. Date of the conviction and subsequent history
Appellant’s prior conviction occurred in May 1999, well within the ten years required under Minn. R. Evid. 609(b). Appellant appears to argue, however, that unlike cases such as Bettin, in which the court found that the passage of time did not make the prior conviction stale because the offender was imprisoned during the time between offenses, his conviction is stale because he has not been imprisoned and has abided by the terms of his probation. But appellant cites no authority for his argument that remaining law-abiding for a period that is less than one-fourth of the ten-year period in the rule makes the conviction stale. Appellant’s good behavior during this relatively small amount of time does not mean that his prior conviction has no probative value.
3. Similarity of crimes
Appellant concedes that there is little similarity between third-degree criminal sexual conduct and conspiracy to commit first-degree controlled-substance sales. This factor weighs in favor of admitting the evidence for impeachment purposes.
4. Importance of appellant’s testimony and the centrality of the credibility issue
Citing State v. Kissner, 541 N.W.2d 317, 324 (Minn. App. 1995), review denied, (Minn. Feb. 9, 1996), appellant argues that the absence of other evidence to support his defense theory weighs against admitting his prior conviction. In Kissner, the defendant chose not to testify, and this court acknowledged that when evaluating the importance of a potential witness’s testimony, courts should consider the availability of other evidence that supports the defendant’s theory of the case. Id. When admitting impeachment evidence prevents a jury from hearing a defendant’s account of the events, it weighs against the admission of the prior convictions. Gassler, 505 N.W.2d at 67.
A portion of appellant’s theory of the case was presented by Alfredo Esquivel, who testified that the CI was never in Gonzalez’s home and, therefore, contradicted the CI’s testimony that appellant was involved in cutting the methamphetamine. But Esquivel also testified that appellant was involved in cutting the methamphetamine. Appellant’s testimony was the only evidence that could support his theory that he was not involved in preparing the methamphetamine for delivery and that he was at the CI’s house to pick up Garza, not to deliver methamphetamine, but Garza told him that he no longer needed a ride. This would weigh against admitting appellant’s prior conviction for impeachment purposes.
But, there is an additional factor that affects the decision to admit a prior conviction when the defendant’s testimony is the only evidence that supports the defendant’s theory of the case. Generally, if the issue for the jury narrows to a choice between defendant’s credibility and that of another witness, the need for admitting the impeachment evidence is greater. Bettin, 295 N.W.2d at 546.
Appellant argues that this factor should not weigh in favor of admitting the conviction because the strength of the state’s case did not rely solely on the credibility of one witness. Appellant contends that the state had at least two witnesses that contradicted each element of his theory. Appellant cites no authority for his argument. In Bettin, the supreme court explained that the need for admitting impeachment evidence is greater when the jury is faced with believing either the defendant or one other witness; the court did not hold that it is error to admit impeachment evidence when more than one witness contradicts a defendant’s testimony. Bettin, 295 N.W.2d at 546. If the testimony of two witnesses contradicts the defendant’s testimony, the jury is still faced with determining whether to believe the defendant or the other witnesses. The additional witness does not make the defendant’s credibility less significant. Consequently, when more than one witness contradicts the defendant’s testimony, the district court still must weigh the importance of appellant’s testimony against the jury’s need to judge appellant’s credibility.
The district court gave a cautionary instruction directing the jury to consider appellant’s prior conviction only as it relates to his credibility. A cautionary instruction “adequately protects [appellant] against the possibility that the jury would convict him on the basis of his character rather than his guilt.” Brouillette, 286 N.W.2d at 708.
Appellant argues that a criminal-sexual-conduct conviction is unfairly prejudicial by its nature and should be admitted under only “the most unusual circumstances.” But appellant cites no authority indicating that a criminal-sexual-conduct conviction should be treated differently from a conviction of another offense. Although the supreme court has acknowledged the potential for prejudice in allowing criminal-sexual-conduct convictions to be introduced for impeachment purposes, it has affirmed the admission of criminal-sexual-conduct convictions for impeachment purposes. Ihnot, 575 N.W.2d at 586; Bettin, 295 N.W.2d at 546; Brouillette, 286 N.W.2d 702.
Under the existing case law, the district court’s ruling that the probative value of admitting appellant’s conviction did not outweigh its prejudicial effect was not a clear abuse of discretion.
 Appellant does not explain why Garza’s testimony could not have been used to support his theory that he was at the CI’s house to pick up Garza.