This opinion will be unpublished and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

A03-1352

 

 

State of Minnesota,

Respondent,

 

vs.

 

Robert James Schroeder,

Appellant.

 

 

Filed July 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Blue Earth County District Court

File No. K903556

 

 

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

 

Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, Post Office Box 3129, Mankato, MN 56002 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Klaphake, Presiding Judge; Schumacher, Judge; and Stoneburner, Judge.

 

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

ROBERT H. SCHUMACHER, Judge

Appellant Robert James Schroeder challenges his convictions of felony driving with a blood alcohol concentration greater than .10 under Minn. Stat.  169A.20, subd. 1(5), .24 (2002), and gross misdemeanor driving after cancellation under Minn. Stat.  171.24, subd. 5 (2002). He argues he was denied a fair trial when the state presented evidence that he invoked his right to counsel, he used a public defender, and the jury was informed his driving privileges had been cancelled. He also argues the trial court erred in ruling he could be impeached with his prior convictions and abused its discretion in sentencing him to the presumptive sentence. He submitted a pro se supplemental brief in which he argues he was denied his right to a fair trial by the state's last minute addition of charges against him. We affirm.

FACTS

In March 2003, Minnesota State Trooper Kevin Killion stopped a vehicle driven by Schroeder, suspecting that he was driving under the influence. Killion eventually administered a preliminary breath test, which showed Schroeder's blood alcohol concentration was .122. Killion arrested Schroeder for driving under the influence and read him the implied consent advisory.

Schroeder agreed to submit to a blood test. Donna Zittel, an employee of the Minnesota Bureau of Criminal Apprehension, tested Schroeder's blood after receiving the sample via United States mail. Zittel concluded that Schroeder had a blood alcohol concentration of .11.

The state charged Schroeder with driving while impaired under Minn. Stat.  169A.20, subd. 1(1) (2002), and gross misdemeanor driving after cancellation under Minn. Stat.  171.24, subd. 5. Prior to trial, the state added a charge of driving with an alcohol concentration above .10 as measured at the time, or within two hours of driving, under Minn. Stat.  169A.20, subd. 1(5). Because Schroeder had three other driving-under-the-influence related offenses since late 1996, the charges under section 169A.20 became felony offenses under Minn. Stat.  169A.24.

Before trial, Schroeder wanted to "stipulate" that he was guilty of driving after cancellation, but the state resisted. Eventually, the parties agreed to stipulate Schroeder's driving privileges were cancelled, but the jury would still be asked to determine whether he was guilty of driving after cancellation. After a one-day trial, the jury found Schroeder not guilty of driving while under the influence of alcohol, but guilty of driving with an alcohol concentration above .10, driving with an alcohol concentration above .10 as measured within two hours of driving, and driving after cancellation.

The court sentenced Schroeder to 72 months in prison for driving with an alcohol concentration above .10 and to a concurrent one-year sentence for driving after cancellation. At the time Schroeder was sentenced, he had a criminal history score of seven. The 72-month sentence was the presumptive sentence for a person guilty of driving with an alcohol concentration above .10 and a criminal history score of six or above. Minn. Sent. Guidelines IV.


D E C I S I O N

1. Schroeder argues that he was denied his right to a fair trial when a state's witness stated Schroeder had invoked his right to counsel and when the same witness referred to his prior driving history. Schroeder did not object to the testimony.

Generally, a defendant is deemed to have forfeited his right to have an error reviewed on appeal if he fails to object to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003). This court will consider an unobjected-to alleged error only if there is error, the error is plain, and the error affects the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997)). To satisfy the third prong, a defendant bears a "heavy burden" of persuasion to show that "the error was prejudicial and affected the outcome of the case." Id. at 741.

Here, responding to the prosecutor's question whether Killion asked Schroeder to submit to a blood test, Killion gave the following response:

I did read and audio record the implied consent advisory to Mr. Schroeder. I believe that was read at 2100 hours. And he said he wanted to talk to an attorney, and then I had called for a tow truck. When the tow truck arrived, I did transport Mr. Schroeder to the LEC in Mankato where a phone was made available to him. When we got into the room where he could use the phone, I gave him the phone, and he had access to a phone book. He told me that he probably wouldn't be able to get a hold of the public defender that he wanted to talk to and that he'd talk to him later. I did, again, turn on the I had a little cassette audio recorder. I did offer him to call another attorney if he wished to, that he had the phone available as well as the phone book to look into for numbers.

If it was error to allow the jury to hear that Schroeder invoked his right to counsel and to hear about his use of a public defender, Schroeder has not met his burden of proof that the error was prejudicial and affected the outcome of the case. See State v. Jaurez, 572 N.W.2d 286, 292-93 (Minn. 1997) (holding that although it was error to admit defendant's statement "I'm gonna have to get a lawyer next," error was harmless); State v. Bonn, 412 N.W.2d 28, 30 (Minn. App. 1987) (holding prosecutor's inadvertent reference to appellant's public defender was harmless error that did not deny appellant fair trial), review denied (Minn. Oct. 21, 1987).

Schroeder also argues he was denied a fair trial because of two reference that his driving privileges were cancelled. The first instance occurred at the end of a videotape played to the jury when Killion asked Schroeder, "Do you know you're cancelled IPS?" The jury did not hear his answer and IPS was never defined for the jury. The second referenced occurred when Killion testified that Schroeder had given him "some paperwork showing him that he was cancelled." Schroeder was charged with driving after cancellation and evidence that his driving privileges were cancelled would be placed before the jury. Schroeder himself testified that his driving privileges had been cancelled. Any error in referring to the status of Schroeder's driving privileges did not affect his substantial rights.

2. Schroeder also argues the trial court committed reversible error when it ruled he could be impeached with his prior convictions. A district court's ruling on the impeachment of an accused by his prior convictions 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, an appellant has the burden of establishing that the trial court abused its discretion and that the appellant was thereby prejudiced. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

The ability to impeach a witness with his prior bad acts is controlled by Minn. R. Evid. 609 (2000), which provides:

(a) General rule. 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.

 

Here, the trial court allowed Schroeder to be impeached with his six prior burglary convictions and one prior conviction of unauthorized use of a motor vehicle. The oldest convictions occurred in 1987; the most recent, a third-degree burglary conviction occurred in 1998.

On appeal, Schroeder does not claim his convictions fall outside the time limit under Minn. R. Evid. 609(b) or that any of his convictions was punishable by imprisonment for less than one year. Thus, the only issue before this court is whether the probative value of his convictions outweighs the prejudicial effect. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

When deciding whether the probative value of an impeachment conviction outweighs its prejudicial effect, 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.

 

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).

Here, the trial court did not make explicit findings on these five factors. Rather, the trial court stated, that after analyzing the "probative value of the [prior convictions] versus its prejudicial effect . . . [the court] determine[d] that the prejudicial effect does not outweigh the probative value of the impeachment evidence." Although it is error for a trial court not to include analysis of the five Jones factors on the record, the error is harmless if this court determines the impeachment evidence could have been admitted after a proper analysis. State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). Thus, we conduct an independent analysis to determine if the evidence should have been excluded.

Under the first Jones factor, impeachment by prior conviction aids the jury by allowing it to see the whole person and better judge the truth of that person's testimony. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Even though a prior crime does not involve dishonesty, it is still probative of credibility and truthfulness. State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979). Evidence of multiple felony burglary convictions would assist the jury in weighing appellant's credibility.

Under the second factor, the dates of the convictions that are offered to impeach the defendant and his subsequent history are considered. Although Schroeder's oldest convictions occurred in 1987, his most recent conviction occurred in 1998 and he was convicted of five other felonies during the intervening time span. The supreme court in Ihnot concluded that a defendant's subsequent convictions showed a "pattern of lawlessness that indicates the 'the [prior] offense had not lost any relevance by the passage of time.'" Ihnot, 575 N.W.2d at 586 (alteration in original) (quoting State v. Bettin, 295 N.W.2d. 542, 546 (Minn. 1980)). Schroeder's multiple felony convictions demonstrate a pattern of lawlessness such that this factor weighs in favor of admitting even his otherwise "stale" convictions. See Ihnot, 575 N.W.2d at 586 (noting with approval holding of Eighth Circuit that history of lawlessness "enhances the probative value of even a stale conviction").

Under the third factor, the court is concerned with prior convictions that are very similar to the present offense.

[I]f 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. Here, the trial court allowed Schroeder to be impeached with his prior convictions of burglary and of unauthorized use of a motor vehicle. These convictions are not similar to his current offenses and therefore the danger that the convictions will be used substantively is reduced.

Under the fourth factor, use of the prior convictions should not be allowed if it prevents the jury from hearing a defendant's version of the events. Id. Here, the jury heard Schroeder's version of the events when he testified.

Under the fifth factor, the need for the impeachment evidence is greater when the defendant's credibility is a central issue in the case. Bettin, 295 N.W.2d at 546. Here, Schroeder's credibility was at issue because he argued he had not consumed a sufficient amount of an alcoholic beverage to reach a blood alcohol concentration of .10 or greater.

After analyzing the five Jones factors, we conclude the trial court was within its discretion to allow Schroeder to be impeached with his prior conviction. The trial court's failure to include the analysis of these five factors on the record was harmless error. See Vanhouse, 634 N.W.2d at 719.

3. Schroeder also argues the trial court erred in sentencing him to the presumptive 72-month commitment to prison because it was disproportionate to the severity of his offense. "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). Further, where there are no reasons stated on the record to support a departure, the departure will not be allowed. State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).

Here, the record contains no evidence of mitigating factors. In fact, at the sentencing hearing Schroeder's trial counsel only requested that the

Court follow the recommendations on the PSI. You know, certainly there's the option; however, I think 72 months for a DWI, with conditional release certainly seems, you know at some point, I guess, we're at overkill; and I guess that's what I would say it is. I think probation has treated this as one course of conduct, and I think that's really what it boils down to.

 

Because there is no evidence of mitigating factors, the trial court had no discretion to impose anything less than the presumptive sentence.

Further, the presumptive sentence Schroeder received was based in large part on his prior criminal history. Had Schroeder had zero criminal history points, his presumptive sentence would have been a 36-month commitment to prison. Minn. Sent. Guidelines IV. His claim that 72 months is a disproportionate sentence because he was a "relatively innocuous" drunk driver is without merit.

4. In a pro se supplemental brief, Schroeder argues he was not provided adequate notice of the crimes with which he was being charged. The state initially charged Schroeder with a felony driving while impaired under Minn. Stat.  169A.20, subd. 1(1), .24, and a gross misdemeanor driving after cancellation under Minn. Stat.  171.24, subd. 5. At a conference held the day before trial, the prosecutor stated: "I do need to make the motion to amend the complaint to include a charge of [driving with a blood alcohol content] over .10." When the court asked Schroeder's counsel for a response he stated: "Nothing I can do about that."

The trial court is "relatively free to permit amendments to charge additional offenses before trial is commenced." State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). Here, Schroeder did not request a continuance and his trial counsel was well aware that the amendment to include the lesser charge would be coming. The trial court did not err in allowing the state to include the charge of driving with a blood alcohol content over .10 as measured at the time or within two hours of driving.

Affirmed.