This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Elliot B. Holly,


Filed August 23, 2005


Minge, Judge


Carlton County District Court

File No. 09-K3-02-1564



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


Thomas H. Pertler, Carlton County Attorney, Paul T. Shaffer, Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.




U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            After a jury trial, appellant was convicted of second- and fifth-degree assault.  Appellant challenges the introduction of evidence of a past conviction of terroristic threats and testimony about appellant’s behavioral history.  We conclude that the district court did not abuse its discretion in admitting the evidence of the past conviction as impeachment evidence when appellant testified.  With one exception, we conclude that testimony regarding appellant’s behavioral history was admissible as rebuttal evidence.  Although the admission of testimony about appellant’s use of weapons was error, because it was harmless error, we affirm.


Appellant Elliot Holly was charged with two counts of second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2002), and two counts of fifth-degree assault, in violation of Minn. Stat. § 609.224, subd. 1(2) (2002).  The incident that is the subject of this action occurred on November 8, 2002, just before lunch was served at the Minnesota Sex Offender Program facility in Moose Lake (Moose Lake).  Appellant had argued with another resident who told him not to use the smoking area because the floor had just been waxed.  Susan Eccles, a staff member, was trying to diffuse the situation.

            According to appellant, he decided to drop the matter and was just standing waiting for lunch, when he was unexpectedly hit by a rolling metal food cart and tackled by Carl Haglund, another staff member.  Appellant claims that he was then attacked by 30-35 Moose Lake staff members and that in desperation and self-defense, he bit and grabbed the hair of his assailants.   

            During the course of the trial, the state presented the testimony of four Moose Lake staff members who were involved in or witnessed the incident.  Their testimony differs dramatically from appellant’s.  Sue Eccles testified that appellant remained agitated after his argument with the other resident, that she cleared the rest of the residents from the room, and that when appellant came towards her, another staffer pushed a cart between them.  Carl Haglund testified he was behind appellant and tried to grab him in a bear hug, but appellant slipped free and grabbed a silverware knife from the cart.  According to staff testimony, Haglund then grabbed appellant from the front, and Haglund, Eccles, and appellant fell to the floor.  Staff testimony indicates that at some point during the struggle appellant bit Haglund and was pulling his hair.  Another staff member, Lori Kangas, testified that while appellant was struggling with Eccles and Haglund, appellant had a knife in his hand, and it appeared that he was directing the knife toward Eccles.  Other staff members arrived and helped subdue appellant and free Haglund.  There was testimony that appellant was yelling and threatening various people during and after the struggle.  The staff called the police, and appellant was transported to the jail. 

Over appellant’s objection, the district court allowed the state to introduce evidence of appellant’s 2003 conviction of felony-level terroristic threats to impeach appellant during the cross-examination.  The conviction was for threatening to stab staff members with a sharp metal object.

            During appellant’s testimony, he claimed that the staff at Moose Lake was racist, routinely made racial slurs, and had unofficial discriminatory policies.  Appellant claimed that he was singled out and that the staff at Moose Lake was trying to get rid of him.  He also testified that as a result of the racism at Moose Lake, the staff falsified reports to prevent investigations of poor treatment of African Americans.

            The state called Debra Konieska, a behavioral analyst at Moose Lake, as a rebuttal witness to respond to appellant’s claims of racism.  This was to be done by summarizing appellant’s record to establish that disciplinary action against him was justified.  Appellant objected to her testimony on various grounds, including undue prejudice and improper Spreigl evidence.  The state asked Konieska, “Mr. Holly characterized himself as being picked on by staff for racial reasons throughout his stay at the facility.  What sort of patient has Mr. Holly been in the behavioral sense?”  The district court overruled appellant’s objection to this question as long as it did not relate to specific incidents, but just gave a general history.  The state asked Konieska to describe appellant’s history since he had come to Moose Lake.  She stated, “Mr. Holly’s behavior since his arrival at the Moose Lake Sex Offender Program has been very problematic and very severe.  He has had numerous episodes of threats, terroristic threats, threats to assault peers, staff and others.”  She further testified that “He has also additionally followed up on many of these threats to the point of assaulting staff, peers and many of these assaults have resulted in physical [injury] to the persons.  Many of the persons that suffered the physical [injury] also required medical attention.”  In response to the state’s question if the assaults involved weapons, she testified:

Yes.  Mr. Holly has frequently used items as weapons.  He has fashioned pieces of metal, pens, things of that nature into what we call shanks.  He has also used items that are commonly available on the living unit such as chairs, silverware during meals.  He has broken CDs and fashioned those into weapons.  He has broken articles that are available in his room such as stereos, T.V.’s, things like that and used pieces of those as weapons.  He has also ripped up bed sheets and used those to fashion weapons or shanks that he has made and also has used strips of bed sheets against himself.


            The jury found appellant guilty of all charges.  This appeal followed.



            The first issue is whether the district court abused its discretion by allowing the state to impeach appellant’s testimony by introducing evidence of a prior conviction for terroristic threats. Evidentiary rulings are within the district court’s discretion, and a decision to admit evidence to impeach a defendant who chooses to testify will not be reversed without a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998); see State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  It is within the district court’s discretion to determine whether the probative value of the prior conviction outweighs the prejudice.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).

            Minn. R. Evid. 609 allows evidence of a prior crime to be admitted in order to attack the credibility of the witness, if the underlying conviction or release is less than ten years old, is punishable by imprisonment for more than one year, and the probative value of the evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a)(1), (b).  Appellant’s prior conviction of terroristic threats was a felony and occurred in 2003; therefore, the only question is whether the probative value of admitting the evidence outweighed the prejudicial effect.  In order to make this probative-value/prejudicial-effect determination, the district court must weigh the five Jones 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).  An examination of the five Jones factors is required to determine whether the district court abused its discretion.


            It is well established in Minnesota that although a crime such as terroristic threats does not directly involve truth or falsity, it still has impeachment value because it allows the jury to see the “whole person” to better judge the truth of his testimony.  See Gassler, 505 N.W.2d at 67; State v. James, 638 N.W.2d 205, 211 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).  Appellant argues that this standard is outdated and does not reflect the reality of how a jury uses the information of a past offense.  Appellant contends that in reality, juries use the evidence of past convictions to convict a defendant for the present crime.  Although appellant points to significant evidence that the use of prior convictions improperly prejudices a jury, the law in Minnesota allows the factfinder to consider whether evidence of past crimes can show a general propensity for dishonesty.  See Gassler, 505 N.W.2d at 67.

Date of conviction

            This factor clearly weighs in favor of admission because appellant’s terroristic-threats offense was committed almost immediately before the events underlying this action.

Similarity of past crime

            The more similar a past crime is to the present crime, the greater the danger that the jury will use the evidence substantively as well as for impeachment purposes. Gassler, 505 N.W.2d at 67.  In this case, there is a reasonable degree of similarity.  The past conviction was for verbally threatening to stab staff members with a sharp metal object, while the current second-degree assault charges resulted from trying to actually stab two staff members with a table knife.  However, the Minnesota Supreme Court has upheld the admission of a prior conviction for attempted murder in a trial for murder and the admission of prior convictions for rape in a trial for first-degree criminal-sexual assault.  Gassler, 505 N.W.2d at 67; State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985).  Based on these decisions, we conclude the district court did not abuse its discretion by admitting the terroristic-threats conviction to impeach appellant despite the factual similarity to the current offense. 

Importance and credibility of appellant’s testimony

            When the central issue in a case is weighing the credibility of the defendant versus the credibility of other testimony, the need for the evidence is greater and therefore there is a stronger reason for admitting impeachment evidence.  See Ihnot, 575 N.W.2d at 587; State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  Appellant’s testimony was central in this case because his guilt depended on whether the jury believed appellant or the staff members at Moose Lake

            The similarity of the charges in this case to the conviction of terroristic threats and the use of a sharp metal object against staff members does raise some issues about the danger of prejudice by admitting the prior conviction.  However, weighing all of the Jones factors together and given past caselaw, we conclude that the district court did not abuse its discretion by allowing the prior conviction to be introduced to impeach appellant’s testimony.  Appellant argues that this rule should be changed.  Given the existing caselaw, that argument should be addressed to the Minnesota Supreme Court.


            The next issue is whether the district court abused its discretion by allowing testimony about appellant’s past behavior at Moose Lake to rebut his claim of racism.  Appellant claims that the testimony of Konieska regarding his past behavior at Moose Lake was improper Spriegl evidence because it was introduced to show that appellant had acted in conformity with that behavior.  See State v. Spreigl, 272 Minn. 488, 495-96, 139 N.W.2d 167, 172 (1965).  Evidence of other crimes or misconduct is usually “not admissible for the purpose of showing that he or she acted in conformity with that character.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998); see Minn. R. Evid. 404(a). 

            “In general, rebuttal evidence is evidence that explains, contradicts, or refutes evidence elicited by the defense.”  State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003).  The determination of whether or not something is appropriate rebuttal evidence rests “almost wholly” within the discretion of the trial court and will only be reversed upon a showing of a clear abuse of discretion.  State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993) (quoting State v. Eling, 355 N.W.2d 286, 291 (Minn. 1984)).  Evidence that is not otherwise admissible may be admissible as rebuttal evidence.  Gutierrez, 667 N.W.2d at 435. 

            In the present case, appellant claimed that the staff was racist, that he was being singled out for mistreatment, that the staff wanted him out of Moose Lake, and that staff had falsified reports of his misbehavior to prevent investigation.  In response to this testimony, the state called Konieska to testify about appellant’s behavioral history at Moose Lake.  She testified that appellant had made many threats, some of which he had followed up on, to assault the staff and other patients.  She further testified that during these assaults he had frequently used weapons fashioned out of available objects such as pieces of metal, pens, and broken CD’s. 

            Konieska’s testimony countered appellant’s claim that he was disciplined for racist reasons.  It also responded to appellant’s challenge to the credibility of the state’s witnesses by providing evidence that actions taken against appellant were justified by appellant’s threats and assaults against staff members and other patients.  By claiming past discrimination against appellant by staff members based on racism, appellant “opened the door” for testimony regarding the reason for actions taken against appellant.  With one exception, we conclude that the district court did not abuse its discretion by admitting Konieska’s testimony. 

            The exception is Konieska’s detailed testimony that appellant had used weapons fashioned out of items found at Moose Lake.  This rebuttal testimony concerned conduct similar to conduct for which he was on trial.  This would be highly prejudicial and has little additional value in refuting appellant’s testimony about past discrimination based on racial prejudice.  Because of the similarity, it created a risk that the jury would think that appellant acted in conformity with this earlier behavior or that even if appellant did not do the specific act for which he was on trial, he had done this act before and deserved to be punished.  For this reason, the district court abused its discretion by allowing Konieska to testify with specificity regarding the use of weapons fashioned out of things appellant found at Moose Lake.         


            The third issue is whether allowing Konieska’s testimony regarding appellant’s use of weapons in past assaults was harmless error.  A conviction can stand if the error was harmless beyond a reasonable doubt.  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  When examining whether harmless error occurred, an appellate court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).   The proper consideration is not whether the jury could have convicted the defendant without the erroneous testimony, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to the testimony.”  King, 622 N.W.2d at 811 (quoting State v. Jaurez, 572 N.W.2d 286, 292 (Minn. 1997)).  In evaluating the impact of the district court’s error, a reviewing court should look at the record as a whole.  State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).  The stronger the evidence of guilt, the more likely the error was harmless; but the more serious the error, the more likely the error was prejudicial.  Id. 

            There was strong evidence of appellant’s guilt.  Four staff members testified to the events that occurred at Moose Lake.  All of their testimony indicated that appellant assaulted Eccles and Haglund.  The primary issue in this case was whether the jury believed appellant or the Moose Lake staff.  Konieska’s testimony had the potential to be fairly prejudicial because it alleged that appellant had committed virtually the same offense before.  Although the jury could have been swayed by Konieska’s testimony regarding prior use of weapons and afforded appellant’s testimony less credence, given the circumstances and the strength of the state’s case there is no reasonable possibility that Konieska’s testimony regarding the use of weapons significantly affected the verdict.  This conclusion is reinforced by the fact that questions regarding appellant’s conviction for terroristic threats were admitted for impeachment purposes and included appellant threatening staff members with a sharp metal object.  This admissible evidence gave the jury access to evidence very similar to that of Konieska’s offending testimony.  Therefore, the admission of this testimony was harmless error.   


            The final issue regards appellant’s claims in his pro se supplemental brief that he has been mistreated and tortured at Moose Lake and that the staff is racist and discriminates against him because he is African American.  None of these accusations is related to the current charge.  To the extent that the appellant claims that prejudice of the staff caused them to lie about the events giving rise to his conviction, these issues of credibility have been decided by the jury, and this court will not disturb the jury’s decisions about the credibility of witnesses.  See State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).