This opinion will be unpublished and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
State of Minnesota,
Dena Lyn Hankerson,
Filed April 13, 2004
in part and reversed in part
Goodhue County District Court
File No. K3-02-1092
Stephen Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475; and
Mike Hatch, Attorney General, Steven L. Schleicher, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant Dena Lyn Hankerson challenges her conviction and sentence for first-degree burglary, terroristic threats, and first-degree criminal sexual conduct. She argues that the prosecutor committed prejudicial misconduct in closing arguments by (1) injecting her personal opinion that children do not lie; (2) vouching for the victim’s credibility; and (3) diluting the beyond-a-reasonable doubt standard by arguing that the jury could find appellant guilty if they believed the victim. Appellant also contends that the district court abused its discretion by ruling that appellant’s 1995 conviction for terroristic threats was admissible for impeachment purposes. Finally, appellant argues that because the terroristic threats were made to facilitate the sexual acts, they were part of the same behavioral incident, and a separate sentence cannot be imposed.
Because appellant failed to object to the prosecutor’s closing argument at trial and failed to show that she was prejudiced by the prosecutor’s conduct, and because the decision to admit appellant’s 1995 conviction for terroristic threats was within the district court’s discretion, we affirm on these issues. But because the terroristic threats were made to facilitate the sexual acts and were therefore part of the same behavioral incident, and because the multiple-victim exception does not apply to this case, we reverse and vacate appellant’s sentence for terroristic threats.
Appellant argues that a new trial is warranted because the prosecutor committed prejudicial misconduct by vouching for the victim’s credibility during closing arguments. Appellant, however, failed to object to the prosecutor’s closing argument at trial. A defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). This court may reverse a conviction despite the defendant’s failure to object or seek cautionary instructions “if the prosecutor’s comments were unduly prejudicial.” State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). The test is whether any inappropriate comments “likely played a substantial part in influencing the jury to convict.” State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).
In closing arguments, the prosecutor here asserted that children tend to be blatantly honest because they have fewer life experiences than adults and have fewer motivations to lie. The prosecutor explained that when children do lie, they usually do so to keep themselves out of trouble. Applying that rationale to the case, the prosecutor implied that the victim was credible because she had no motive to lie about the sexual assault.
Appellant contends that by “vouching” for the victim’s credibility and by telling the jury that they could convict if they believed the victim, the prosecutor diluted the standard of proof, thereby depriving appellant of a fair trial. Appellant must show that the inappropriate comments likely played a substantial part in influencing the jury to convict. See Parker, 417 N.W.2d at 647. Because there was a substantial amount of evidence supporting the victim’s testimony, and because the district court gave the standard jury instructions, which state the factors a jury may consider when judging the credibility of the witnesses, we cannot conclude that any inappropriate comments by the prosecutor likely played a substantial part in influencing the jury to convict.
Appellant contends that she was denied a fair trial because the district court improperly allowed her to be impeached with a prior conviction for terroristic threats. A district court’s evidentiary rulings are reviewed under an abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the district court, which will not be reviewed absent a clear abuse of discretion. State v. Graham, 371 N.W.2d 204, 208-09 (Minn. 1985).
When evaluating the probative value and prejudicial effect of a proffered crime that does not involve dishonesty or false statement, the district 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.
State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).
Here, a review of these factors supports the district court’s decision to admit the prior conviction for terroristic threats. Appellant’s prior conviction was useful for impeachment purposes because it assisted the jury in weighing appellant’s credibility. See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (stating that impeachment by prior conviction allows the jury to see the “whole person” and better judge the truth of the person’s testimony). Moreover, the conviction was less than 10 years old. Finally, the importance of appellant’s testimony and the centrality as an issue at trial favored admitting the prior conviction because appellant’s testimony directly contradicted the victim’s testimony. The only factor that weighed against admission of this evidence was the similarity of the crimes. Nevertheless, given the district court’s broad discretion on these issues, we conclude that the court did not abuse its discretion in admitting appellant’s prior terroristic threats conviction.
Appellant argues that because she made the terroristic threats to obtain the victim’s participation in the sexual acts, the threats and sexual acts were part of the same behavioral incident. Minn. Stat. § 609.035, subd. 1 (2002) provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses[.]” Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced on only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). Any multiple sentences, including concurrent sentences, are barred if the statute applies. State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).
Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of a particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). A district court’s finding on whether or not offenses are part of a single behavioral incident will not be reversed on appeal unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).
Here, the state concedes that appellant committed the terroristic threats to accomplish the rape. But the state asserts that the district court imposed a sentence for the terroristic threats conviction based upon the existence of additional victims, namely, the two young children whom the victim was babysitting when the sexual assault occurred. In support of this position, the state cites State v. Johnson, 653 N.W.2d 646, 653 (Minn. App. 2002), which holds that a judicially created exception permits the imposition of more than one sentence for a single behavioral incident when there are multiple victims. The state argues that there were multiple victims because appellant’s threats to the victim included threats of harm to the children she was babysitting.
We disagree. It was inappropriate to consider the children as victims of the terroristic threats when they were not actually threatened by appellant and were never aware they were in danger. Because the children were not affected by the terroristic threats, the multiple-victim exception set forth in Johnson does not apply. The district court abused its discretion, therefore, by imposing a separate sentence on the terroristic threats conviction. We reverse appellant’s sentence for terroristic threats and affirm on all other issues.
Affirmed in part and reversed