This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-467

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy D. Lydon,

Appellant.

 

 

Filed March 9, 2004

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. K3011265

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

 

Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Timothy D. Lydon challenges his convictions of theft under Minn. Stat. 609.52, subds. 2(11) and 3(3)(d)(v) (2000), and of possession of stolen property under Minn. Stat. 609.53, subd. 1 and .52, subd. 3(3)(d)(v) (2000). He argues the state did not present sufficient evidence that he knew or had reason to know the vehicle was stolen or that he altered the vehicle identification number (VIN), knew it had been altered, or had reason to know it had been altered. He also argues the court committed reversible error when it allowed the state to impeach him with his prior theft conviction and two burglary convictions. We affirm.

FACTS

This case arises from theft reports concerning two Pontiac Bonnevilles that were in fact the same vehicle. In January 2000, Marjorie Turner gave her blue 1988 Pontiac Bonneville, license plate number 189 MEA, to Dan Bedeaux, the owner of Econo Used Cars to sell on consignment. Bedeaux testified that he drove the car home on the night of January 24, 2000, the car was on the lot at the end of the day on January 25, 2000, but the next morning the car was missing. He notified the police at approximately noon on January 26 the car had been stolen. On November 18, 2000, Lydon filed a report with the St. Paul police that his 1987 blue Pontiac Bonneville, license plate number EES 541, had been stolen from the Sears Auto Service Center.

Officer Tom Bergen investigated the theft of Lydon's car. In early December 2000, Bergen went to Lydon's residence to examine the vehicle, which had since been returned to Lydon. Bergen noticed the public vehicle identification number "was covered with glue." Bergen testified that his training and experience led him to believe the car's VIN had been "switched." Bergen testified that the switch is usually accomplished by taking the VIN plate from a donor vehicle and gluing it over the VIN of a the stolen vehicle. The switcher obtains a donor vehicle, then steals a car of the same model and switches the public VIN. The switcher often also removes the other VIN's located on the door, or doorpost, and under the hood. He testified that after having Lydon's car impounded, he also learned that the VIN's had been removed from these other locations as well.

Many cars, however, also have a "confidential secondary number" stamped into the metal of the car. Officers can contact the National Insurance Crime Bureau to learn what VIN corresponds to the confidential number. Bergen testified he located the confidential number on Lydon's 1987 Pontiac, contacted the National Insurance Crime Bureau, and learned that Lydon's 1987 Pontiac was actually Turner's stolen 1988 Pontiac.

Bergen then obtained certified title histories for the VINs associated with the 1988 Pontiac and the 1987 Pontiac, as well as actual copies of the title documents for the 1987 Pontiac. The title documents for the 1987 Pontiac showed that Lydon had purchased the car from Joseph Rivera. Bergen testified the title documents showed the date of transfer as February 8, 1997, a purchase price of $100, and payment of the licensing fee by Lydon on January 24, 2000. Defense counsel questioned whether the $100 price could be a $700; Bergen responded, "In my opinion, no."


D E C I S I O N

1. Lydon argues the state did not present sufficient evidence to sustain his convictions. In considering a claim of insufficient 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, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Lydon was convicted of possessing stolen property under Minn. Stat. 609.53, subd. 1 (2000). Subdivision 1 provides:

Except as otherwise provided in section 609.526, any person who receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery, may be sentenced in accordance with the provisions of section 609.52, subdivision 3.

 

Id.

Lydon does not contest that the vehicle he possessed was actually Turner's stolen 1988 Pontiac. But he argues the state's circumstantial evidence that he knew or had reason to know the 1987 Pontiac he was purchasing was stolen was insufficient to sustain his possession of stolen property conviction.

When a conviction is based on circumstantial evidence a higher level of scrutiny is appropriate. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). A conviction based on circumstantial evidence may stand where the evidence viewed as a whole so directly leads to the accused's guilt that it excludes any other reasonable inference. Id. This standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence . . . [and] determine[] the credibility and weight given to the testimony of individual witness." Id. (quotation and citation omitted).

After reviewing the record in the light most favorable to the verdict, the circumstantial evidence in this case leads so directly to a conclusion that Lydon knew or had reason to know the 1987 Pontiac was stolen that it excludes any other reasonable inference. There was testimony that Lydon paid only $100 for the vehicle. Bedeaux testified the car's retail value was $2,900. Furthermore, on cross-examination Lydon admitted that the car's steering column had been "punched out" and that he purchased the vehicle at a gas station from a person he could only identify as "Joe." Purchasing a car with a punched out steering column for far less than its retail value off a street corner from an unknown person supports only one reasonable inference Lydon knew or had reason to know the car was stolen.

Lydon also challenges his conviction of theft under Minn. Stat. 609.52, subd. 2(11) (2000). Under subdivision 2(11), a person is guilty of theft when,

with the intent to prevent the identification of property involved, so as to deprive the rightful owner of possession thereof, [he] alters or removes any permanent serial number, permanent distinguishing number or manufacturer's identification number on personal property or possesses, sells or buys any personal property knowing or having reason to know that the permanent serial number, permanent distinguishing number or manufacturer's identification number has been removed or altered.

 

Id.

Lydon does not contest that he possessed a vehicle that had its manufacturer's identification number removed with the intent to deprive the rightful owner of the vehicle. Rather, he argues that there was insufficient evidence demonstrating that he knew or had reason to know the VIN had been altered. As with his possession conviction, this final element rests on circumstantial evidence.

After reviewing the record in the light most favorable to the verdict, the circumstantial evidence in this case leads so directly to a conclusion that Lydon either altered the VIN number, knew it had been altered, or had reason to know it had been altered that it excludes any other reasonable inference. Bedeaux testified that he drove Turner's 1988 Pontiac the night of January 24, 2000, that the car was on his lot at the end of the day on January 25, 2000, but it was missing the morning of January 26, 2000. Yet, the title documents to Lydon's 1987 Pontiac show that he transferred the title on January 24, 2000. The only rational inference that can be drawn from the evidence that Lydon transferred the title to the 1987 Pontiac the day before Turner's 1988 Pontiac was stolen is that he altered the VIN himself, he knew that it had been altered, or he had reason to know it had been altered.

2. Lydon also argues the trial court erred in allowing the state to impeach him with his prior convictions because the convictions were too prejudicial. A district court's ruling on the impeachment of an accused 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). On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).


Lydon did not object to the state's use of his prior convictions. Where there is no objection, this court will only consider the alleged error if (1) there is error; (2) the error is plain; and (3) the error affects the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Only after all these factors are satisfied may an appellate court exercise its discretion to correct an unobjected-to error. Id.

Minnesota Rules of Evidence provide:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

 

Minn. R. Evid. 609(a). The prior convictions used to impeach Lydon were felony convictions that were punishable by imprisonment in excess of one year.

In order for this court to exercise its discretion to correct the un-objected alleged error, it must have been plain error for the trial court not to conclude the prejudicial effect of the prior convictions outweighed the convictions' probative impeachment value. When deciding whether the prejudicial effect of an impeachment conviction so outweighs its probative value that its use is plain error, we 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 (analyzing trial court's decision to allow state to impeach defendant with prior convictions over objection) (quotation omitted).

The first two factors weigh in favor of allowing use of the prior convictions for impeachment. Lydon's prior convictions were useful for impeachment purposes. See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (stating impeachment by prior conviction aids jury by allowing it to see whole person and better judge truth of that person's testimony); State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (stating even though prior crime does not involve dishonesty, it is still probative of credibility and truthfulness). Lydon's theft conviction occurred in 2000; his two burglary convictions in 1999. See Brouillette, 286 N.W.2d at 708 (stating recentness of crime enhances it probative value).

As to the third factor, "if the prior conviction is similar to the charged crime, there is a heightened danger that the jury will use the evidence not only for impeachment purposes, but also substantively." Gassler, 505 N.W.2d at 67. Nevertheless, impeachment by prior convictions of similar crimes is allowed. State v. Vanhouse, 634 N.W.2d 715, 720 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001); see also Gassler, 505 N.W.2d at 67 (upholding admission of prior attempted murder conviction in murder trial); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (upholding admission of prior rape convictions in first-degree criminal sexual assault trial); State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (upholding admission of prior aggravated rape conviction in criminal sexual conduct trial after noting "fact that prior crime was basically the same crime with which defendant was charged" weighed against admission).

The final two factors are also satisfied. The jury heard Lydon's version of the events when he testified. See Gassler, 505 N.W.2d at 67 (stating fourth factor precludes admitting prior convictions if admission prevents jury from hearing defendant's version of events). Lydon's credibility was the central issue in this case. See Bettin, 295 N.W.2d at 546 (stating need for impeachment evidence is greater when jury must choose between alternative versions of events). After reviewing the five factors, we cannot conclude the trial court's decision to allow the state to impeach Lydon was plain error.

In a footnote in his brief, Lydon argues he was denied effective assistance of counsel. Because he does not discuss the issue in the text of his argument section, we decline to address it. See In re Application of Olson for Payment of Sers., 648 N.W.2d 226, 228 (Minn. 2002) (holding this court need not address issue raised only "tangentially in one argument heading and in one footnote" but not discussed in text of argument section of appellant's brief).

Affirmed.