This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Terry Lamont Holliday,



Filed ­­January 18, 2005

Affirmed in part, reversed in part, and remanded

Harten, Judge


Martin County District Court

File No. K3-03-351


Terry W. Viesselman, Martin County Attorney, 123 Downtown Plaza, Fairmont, MN 56031; and


Mike Hatch, Attorney General, Kelly O’Neill Moller, 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 State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


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

U N P U B L I S H E D   O P I N I O N




During appellant’s trial on two counts of first-degree criminal sexual conduct, the district court ruled admissible as impeachment evidence appellant’s prior second-degree criminal sexual conduct conviction.  The jury convicted appellant as charged, and the district court used the conviction and three aggravating factors to sentence him to the statutory maximum.  Because the district court properly received impeachment evidence of appellant’s prior conviction but sentenced him in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004), we affirm appellant’s conviction but reverse and remand for resentencing.



The victim spent the evening of 1 May 2003 through the early morning of 2 May 2003 drinking at various Mankato bars with friends.  She estimated that she consumed between 11 and 15 drinks.  As the partying ended, the victim decided to accompany a few acquaintances to a restaurant.  Appellant Terry Holliday offered to drive the victim and a third individual, Anthony Johnson, to the restaurant.  As they approached it, appellant told the victim that he had changed his mind and no longer wanted to drop her off at the restaurant.

            Appellant continued driving toward Waseca.  As the victim expressed her anger at not being dropped off, appellant pulled the car over and told her to shut up.  After stopping by the side of the road for about 30 minutes, appellant continued driving to Waseca.  In Waseca, appellant dropped Johnson off at Johnson’s girlfriend’s car.  The victim asked to use Johnson’s girlfriend’s cell phone but could not because it was in use.  The victim then attempted to walk to the nearest gas station.  Before she reached the station, however, appellant came up behind her, put his arms around her neck, and forced her into his car.  He then told her they were driving to Fairmont.  On the way, they stopped at a gas station where the victim used the restroom.  The victim then voluntarily returned to the car and the two continued on their way.  When appellant drove through the town where the victim lived, she asked him to drop her off, but he refused.

            They arrived at appellant’s Fairmont home at approximately 3:00 a.m.  Once there, appellant told the victim to remove her clothes.  Appellant then struck the victim and forced her to perform oral sex on him.  Appellant did not ejaculate, and he told the victim that she would have to continue sex acts until he did.  The two then engaged in vaginal sex.  Appellant did not ejaculate until the victim again performed oral sex on him.  He then drove the victim to her cousin’s house in Mankato.  That afternoon, the victim reported the incident to police.

A jury convicted appellant of two counts of first-degree criminal sexual conduct.  Because the district court ruled that appellant’s prior conviction was admissible for impeachment purposes, he chose not to testify.  The district court departed upward durationally by sentencing appellant to the statutory maximum of 360 months in prison.  It based the departure on appellant’s prior second-degree criminal sexual conduct conviction and the following aggravating factors: (1) particular cruelty; (2) detrimental psychological impact on the victim; (3) taking advantage of the victim’s vulnerability in her intoxicated state; and (4) appellant’s being on intensive supervised release at the time of the offense.

Appellant challenges his conviction and sentence, alleging that evidence of his prior conviction was improperly ruled admissible for impeachment and that his sentence violated his Sixth Amendment rights under Blakely.



1.         Impeachment Evidence


            Appellant argues that the district court erred by ruling that evidence of his prior conviction was admissible for impeachment.  Evidentiary rulings, such as use of a prior conviction to impeach a witness, rest within the district court’s discretion.  State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).  “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).

Evidence of a prior conviction may be admissible to impeach a defendant’s testimony if the offense is less than ten years old and is punishable by imprisonment for more than one year, and if the district court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a)(1), (b).  To determine whether the probative value of the evidence outweighs its prejudicial effect, the court should consider the following 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, 538 (Minn. 1978).


            a.         Impeachment Value of Prior Crime

            Although prior violent crimes may lack impeachment value regarding truth or falsity, trial courts have broad discretion in admitting them to impeach a witness because “impeachment 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 66-67 (quotation omitted).  Appellant contends that his prior conviction lacks impeachment value because he entered an Alford plea in which he maintained his innocence but acknowledged that the state probably had sufficient evidence to convict him.  Appellant offers no precedential support for this contention.  Moreover, the conviction has impeachment value because it shows that there were sufficient grounds to obtain a conviction on a prior occasion, when appellant decided to plead guilty and accept the resulting conviction instead of going to trial.  The prior conviction helped the jury see appellant as a whole person even though it resulted from an Alford plea.

            b.         Date of Conviction and Subsequent History

            Appellant challenges the admissibility of the conviction because it was not recent.  A prior conviction used to impeach a defendant must have occurred within ten years of the charged offense.  Minn. R. Evid. 609(b).  Here, the prior conviction is clearly within the ten-year period because it occurred in 1999 and the current offense occurred in 2003.  Appellant nonetheless argues that the fact that he only has one prior sexual conduct conviction should weigh in favor of excluding that conviction.  But the conviction shows appellant’s “history of lawlessness” because appellant committed the current offense while on supervised release from his previous conviction.  See State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (citing United States v. Holmes, 822 F.2d 802, 804-05, (8th Cir. 1987) for the proposition that “defendant’s history of lawlessness and convictions enhances the probative value of even a stale conviction”).  The 1999 conviction’s demonstration of appellant’s past lawlessness contributes to its probative value.

            c.         Similarity of Past and Charged Crimes

            Appellant argues that, because the prior offense that resulted in conviction was similar to the instant offense, the district court should have found that the similarity weighed in favor of exclusion.  If the prior conviction is similar to the charged offense, “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.  The similarity of a prior offense to the charged crime weighs against, but does not preclude, its admission.  State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).

But appellant’s prior offense differed from the incident at issue.  In the prior offense, appellant entered the victim’s residence and threatened her with a hammer, while in this incident the victim was transported against her will to appellant’s home and, although she was hit and threatened with violence, the assailant did not use any object to do so.  Moreover, Minnesota courts have upheld the admission of similar crimes for impeachment purposes.  See, e.g., Inhot, 575 N.W.2d at 588 (no abuse of discretion for admitting third-degree criminal sexual conduct conviction to impeach during trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (no abuse of discretion for admitting two prior rape convictions during trial for first-degree criminal sexual conduct); State v. Vanhouse, 634 N.W.2d 715, 720 (Minn. App. 2001) (no abuse of discretion for admitting evidence of conviction of second-degree criminal sexual conduct during trial on a first-degree criminal sexual conduct charge), review denied (Minn. 11 Dec. 2001).  Here, the situation is identical with that in Vanhouse because appellant’s prior conviction for second-degree criminal sexual conduct was ruled admissible for impeachment at his trial for first-degree criminal sexual conduct.

            d.         Importance of Appellant’s Testimony

            Appellant contends that his testimony was critically important to his case because he would have presented a consent defense.  Because the district court ruled appellant’s prior conviction admissible to impeach him, he chose not to testify.  If the admission of a defendant’s prior conviction would cause him not to testify, the importance of having the jury hear the defendant’s version of the case might weigh in favor of excluding the prior conviction.  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  Thus, the importance of appellant’s testimony might have favored excluding his prior conviction.

            e.         Centrality of Credibility

            Finally, appellant contends that his credibility would have become the central issue because only he and the victim witnessed the incident.  If the parties’ credibility is the central issue, and the defendant attacks the plaintiff’s credibility when only he and the plaintiff witnessed what happened, a greater case can be made to admit, rather than exclude, the evidence for impeachment purposes.  Ihnot, 575 N.W.2d at 587; Bettin, 295 N.W.2d at 546; Vanhouse, 634 N.W.2d at 720.  Thus, the district court could have reasonably concluded that the impeachment evidence was necessary due to the centrality of the credibility issue.

Because four of the five Jones factors weigh in favor of admitting the prior conviction, we conclude that the district court did not abuse its discretion by determining that the impeachment evidence was more probative than prejudicial.

2.         Appellant’s Sixth Amendment Rights Under Blakely

Even if this court upholds the validity of his conviction, appellant argues that his sentence violated his Sixth Amendment rights under Blakely.  Generally, this court will not disturb the district court’s sentence absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But we review de novo constitutional challenges such as the Blakely argument.  See, e.g., State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. 20 July 1995).

Blakely held that the statutory maximum sentence is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of any fact that increases the sentence.  Id. at  2543.  This court has held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), pet. for rev. filed (Minn. 10 Nov. 2004).  Thus, a defendant has a right under Blakely to a sentence based exclusively on either the jury’s findings or the defendant’s admissions.  A defendant’s admissions supporting an aggravating factor must be accompanied by a corresponding waiver of a jury determination on that aggravating factor to satisfy BlakelyState v. Hagen, ___ N.W.2d ___ (Minn. App. 28 Dec. 2004).

Here, the district court sentenced appellant using an upward durational departure based on appellant’s prior conviction and three aggravating factors.  The judge, not the jury, independently found the facts supporting the aggravating factors.  Appellant neither made factual admissions supporting the aggravating factors nor waived his right to a jury determination on any of the factors.  Blakely was decided after appellant was convicted and sentenced, so appellant was likely not asked to make any such waivers.  Appellant was not informed that he had a right to a jury determination on any fact used to support an aggravating factor, and he could not have waived a right unknown to him.  See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (defendant’s waiver of his jury-trial rights must be knowing, intelligent, and voluntary).  This court determined that Blakely may under some circumstances apply to defendants who were sentenced before Blakely was decided because new rules of criminal procedure apply to a pending appeal.  See Conger, 687 N.W.2d at 641 (granting the parties leave to file supplemental briefs on Blakely because it was announced while the direct appeal was pending); see also O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (new rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced).  Appellant filed his notice of appeal on 5 February 2004 and Blakely was released on 24 June 2004.  Thus, Blakely applies here.  The district court’s use of aggravating factors found by the judge and not the jury violated appellant’s jury-trial rights under Blakely.  Thus, we affirm appellant’s conviction but reverse and remand for resentencing in accordance with Blakely.

Affirmed in part, reversed in part, and remanded.