This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Hector Otoniel Flores,



Filed April 18, 2006


Collins, Judge*


Clay County District Court

File No. K2-03-1988


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


Lisa Borgen, Clay County Attorney, Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for respondent)


Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)


            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N


            In this direct appeal from convictions of attempted second-degree murder, felon in possession of a firearm, and terroristic threats, appellant Hector Otoniel Flores argues that (1) the prosecutor committed prejudicial misconduct; (2) the district court abused its discretion in admitting evidence of a prior robbery conviction to impeach his testimony; and (3) the evidence is insufficient on the element of intent to kill to sustain the conviction of attempted second-degree murder.  We affirm.



            While at a house party after midnight on October 25, 2003, Flores drew a gun from his front pants pocket and pointed it toward Miguel Torres (Miguel).  A shot was fired, hitting Miguel in the hand.  About eight to ten people were at the party that began on the evening of October 24.  They were drinking alcohol in various forms, some smoked marijuana, and some may have used methamphetamine.   Witness accounts of the incident are conflicting.

            According to Miguel, before the shooting, Flores was bragging about money, drugs, and his past.  Miguel thought that Flores appeared paranoid and under the influence of drugs.  When Miguel suggested that Flores go home and take care of his family, Flores became upset.  Miguel testified that he thought Flores was angered because he had been insulted and felt disrespected in front of the women present.  Miguel told Flores to stay away from him. When Miguel turned around after getting a beer from the refrigerator, Flores was holding a gun pointed at Miguel’s chest.  Miguel reacted by reaching out in a vain attempt to knock the gun aside.  The gun went off and Miguel was shot in the hand.  Miguel then ran out of the house.

            Miguel’s brother, Jesus Torres (Jesus), was present and offered a similar description of the incident.  He added that Flores twice pointed the gun at Jesus, first immediately after shooting Miguel, telling Jesus to “get the f - - k out of there” and again after both Flores and he had left the house.

            Other witnesses offered various versions of the events, most of which contradicted Miguel’s and Jesus’ testimony.  Several stated that Miguel was aggressive and either hit or tried to hit Flores before the shot was fired.  But others testified that after the shooting, Flores pointed or waved the gun in a circle while telling everyone to “back off!”

            The essence of Flores’ account of the incident was that Miguel had been boisterous and pointing his finger in Flores’ face; that Miguel hit him; that Flores responded by drawing the gun from his pocket; and that the gun just went off by accident.  He testified that he did not remember waving the gun around thereafter.

            After the shooting, Flores fled the house, ran through the backyard, stumbled into a creek, and wound up sleeping beneath a bridge.  When he awoke, Flores went to his wife’s house to change his bloody and wet clothes.  Knowing that as a prior convicted felon he was prohibited from having a firearm, Flores threw away the gun, but he kept and hid the ammunition clip.

            The next day Flores saw the party’s host and, after apologizing for disrespecting her house, said that he knew he should go to the police.  Within the next day or two Flores called his mother to ask if the police had been looking for him.

            Following a jury trial and return of verdicts, the district court entered judgments of conviction and sentenced Flores to serve concurrent prison terms of 27 months for terroristic threats, 60 months for felon in possession of a firearm, and 183 months for attempted murder in the second degree.  This appeal followed.





            Flores argues that the prosecutor committed misconduct by improperly interjecting race into the judicial proceedings and improperly eliciting testimony regarding the supply and use of methamphetamine.  We disagree.

            This court will reverse based on prosecutorial misconduct only if the misconduct, when considered in light of the whole trial, is so serious and prejudicial that it impaired the defendant’s right to a fair trial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003); State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  There are two distinct standards for determining whether prosecutorial misconduct is harmless error.  Powers, 654 N.W.2d at 678.  “If the misconduct was serious, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.”  Id. (quotations omitted).  In contrast, if the misconduct is less serious, “the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quotations omitted).          

1.         Race

            Flores first argues that he is entitled to a new trial because the prosecutor improperly interjected race into the judicial proceedings by implying that Flores was more likely to commit the crime because he is Hispanic.  “[T]he issue of racial or ethnic bias in the courts . . . is an issue that must be confronted whenever improperly raised in judicial proceedings.”  State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005) (quotations omitted).  Race is improperly raised when it is not relevant to the case.  See id. at 474.

            Here, the prosecutor questioned Miguel during the trial about the argument he had with Flores.  Miguel testified that he told Flores to leave the party and go home to his family, after Flores had been bragging about his past.  Miguel stated that he believed that Flores became agitated enough to shoot him because Miguel made his remarks in front of the women at the party.  The prosecutor then engaged Miguel in the following exchange:

Q.        Right.  Would it be fair to say, Mr. Torres, you’re from Hispanic origin, correct?


A.        Yes.


Q.        And as is [Flores], correct?


A.        Right.


Q.        And would it be fair to say that disrespecting another male in the presence of females that he perhaps has a relationship or whatever, is not really acceptable?


A.        No, it’s not.


            [DEFENSE COUNSEL]:      I’m going to object to that.  Not only is it irrelevant, Your Honor, but it’s assuming facts that aren’t in evidence.  There’s no evidence to indicate that anybody was there with any girls.


THE COURT:            Overruled.  He may answer.


Q.        Would you say that that would be something that’s more objectionable in your culture?


A.        Yes, it is.


            Flores argues that the questions regarding Hispanic culture improperly introduced racial bias into the case.  But the prosecutor neither suggested that Flores was more likely commit a crime because he is Hispanic, nor implied that Flores was more aggressive or hot-tempered because he is Hispanic.  Instead, the legitimate race-neutral  purpose was to establish the reason why, under the circumstances, Miguel’s comments would have insulted and upset Flores enough to intend to kill.  Thus, we conclude that the prosecutor did not commit misconduct by improperly interjecting race into the judicial proceedings.

            2.         Methamphetamine

            Second, Flores argues that he is entitled to a new trial because the prosecutor improperly elicited testimony regarding the use and supply of methamphetamine.  But the methamphetamine evidence was relevant to the issues of Flores’ state of mind and conduct.  Several witnesses testified about their experiences with methamphetamine to explain the effects of the drug.  And Miguel testified that before Flores shot him, Flores appeared paranoid and exhibited behaviors associated with being under the influence of drugs.  We conclude that this evidence was relevant to the state’s theory as to why Flores became agitated enough to intentionally shoot Miguel.

            The prosecutor did imprudently ask two witnesses whether Flores had ever supplied them with methamphetamine or other drugs.  But the district court properly sustained the timely objection in one instance, and the other witness was quick to answer in the negative.  Thus, while the questions were improper, we conclude that there was no prejudicial effect, and Flores’ right to a fair trial was not impaired.



            Flores contends that the district court abused its discretion by admitting evidence of his 1999 conviction of simple robbery for impeachment of his testimony.  We disagree.

            This court reviews a district court’s ruling on the impeachment of a witness by prior conviction under a clear-abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998); State v. Graham, 371 N.W.2d 204, 208-09 (Minn. 1985).  District courts may admit evidence of a prior crime to impeach the defendant’s testimony if the underlying conviction is less than ten years old, 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).  To determine whether the probative value of the evidence outweighs its prejudicial effect, the court must consider the following factors that the Minnesota Supreme Court enumerated in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978):  “(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 . . . , (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.”

            Here, the district court’s failure to explicitly discuss the Jones factors on the record impedes our review of the district court’s ruling.  We stress that the Jones-factor analysis is important for meaningful appellate review, but we will affirm when the district court could have admitted the conviction after proper application of the factors.  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            1.         Impeachment value of prior crime

            First, we must consider the impeachment value of the prior crime.  Jones, 271 N.W.2d at 538.  The Minnesota Supreme Court has stated that “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.”  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted).  Although theft crimes do not directly involve dishonesty, Minnesota courts have recognized that prior convictions of theft crimes have impeachment value.  See, e.g., State v. Ross, 491 N.W.2d 658, 659-60 (Minn. 1992) (concluding that burglary conviction was admissible under rule 609(a)(1)); State v. Yates, 392 N.W.2d 30, 32 (Minn. App. 1986), review denied (Minn. Sept. 22, 1986); see also Gassler, 505 N.W.2d at 67 (“[T]he fact that a prior conviction did not directly involve truth or falsity does not mean it has no impeachment value.”).  Because Flores’ 1999 robbery conviction contributed to the jury’s view of the whole person in assessing the truthfulness of Flores’ testimony, we determine that the conviction had impeachment value.

            2.         Date of conviction and subsequent history

            Second, we consider the date of the conviction and the defendant’s subsequent history.  Jones, 271 N.W.2d at 538.  Here, Flores was convicted of robbery in 1999, less than five years before the October 25, 2003 incident and less than six years before trial.  Under Minn. R. Evid. 609(b), evidence of a conviction is not admissible if more than ten years have elapsed since the date of conviction.  Thus, convictions that have occurred within the ten-year period are presumptively not stale.  Gassler, 505 N.W.2d at 67. 

            Flores concedes that any impeachment value of his prior conviction had not lost its relevance.

3.                  Similarity of past and charged crimes

Next, we must consider the similarity of the past and charged crimes.  Jones, 271 N.W.2d at 538.  “[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.”  Grassler, 505 N.W.2d at 67.  But Minnesota courts have been liberal in admitting prior convictions for impeachment purposes even when the crime is similar to or the same as the charged crime.  State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986).

            Flores argues that his prior conviction of robbery is similar to charges for which he was being tried in that they are crimes of violence against persons, defining robbery essentially as theft accomplished by means of an assaultive act.  But the Minnesota Supreme Court has upheld the admission of past convictions far more similar in their elements to the charged crime than the similarity presented here.  See, e.g., State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming district court’s admission of prior rape convictions in sexual assault trial).  We conclude that the argued similarity of the past and charged crimes in this case does not weigh significantly in favor of excluding the prior conviction.


4.         Importance of appellant’s testimony

            Fourth, we turn to consideration of the importance of Flores’ testimony.  Jones, 271 N.W.2d at 538.  If the admission of a defendant’s prior conviction would cause him to refrain from testifying, 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).  But here, the impending introduction of the prior conviction, tempered by the proper limiting jury instruction to be given by the district court, did not discourage Flores from testifying.  Thus, we conclude that this factor does not weigh in favor of excluding the past conviction.

            5.         Centrality of credibility issue

            Finally, we must consider whether Flores’ credibility is a main issue in the case.  Jones, 271 N.W.2d at 538.  The need for the evidence of the past conviction is greater when the jury must choose between the credibility of the defendant and that of another person.  Ihnot, 575 N.W.2d at 587.

            A central issue is whether Flores intended to shoot Miguel.  Flores and another witness testified that the shooting was an accident.  But the prosecutor presented circumstantial evidence of Flores’ intent.  That evidence depicts a scene of Flores pointing his loaded and ready-to-fire gun at Miguel’s chest within close range, shooting, and then waving the gun in the circle of others in a menacing manner before fleeing. Because that evidence and reasonable inferences conflict with Flores’ testimony on the intent element, we determine that Flores’ credibility was crucial to the case and weighs in favor of admitting the prior conviction.  See id.

            Based on consideration of the five Jones factors, we hold that the district court did not err in concluding that the probative value of the robbery conviction outweighed its prejudicial effect and did not abuse its discretion by admitting the prior conviction for impeachment purposes.



            Flores further contends that the evidence is insufficient to sustain his conviction of attempted second-degree intentional murder because the state did not prove beyond a reasonable doubt that he acted with the intent to kill Miguel.  We disagree.

            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 jury to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  And we will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            A person is guilty of second-degree intentional murder if he “causes the death of a human being with intent to effect the death of that person or another, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (2002).  Intent exists when the defendant “either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2002).  Intent may be proven by circumstantial evidence, including inferences drawn from the defendant’s conduct, the character of the assault, and the events occurring before and after the crime.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).

            Here, assuming that the jurors believed the state’s witnesses and disbelieved contrary evidence, Flores’ actions before and after he shot Miguel provided ample evidence for a reasonable jury to find that Flores intended to kill Miguel.  See Moore, 438 N.W.2d 108.  According to Miguel’s testimony, Flores and he were having a conversation that escalated to argument.  Flores appeared paranoid, so Miguel told Flores to stay away from him.  When Miguel turned back after momentarily turning away, Flores had a gun in his hand pointed at Miguel’s chest.  Miguel may not have been close enough to reach the gun, but he reacted by sweeping his arm out in an attempt to block or knock the gun aside when he was shot.  The bullet struck bone in Miguel’s hand and may have thus been deflected from entering his chest.  Believing that Miguel was not close enough to touch Flores or the gun, a reasonable jury could conclude that Flores did not shoot Miguel in defense of himself; rather than believe that Flores would carry a loaded gun in his front pants pocket cocked and ready to fire, a jury could reasonably conclude that Flores disengaged the safety and cocked the weapon after pulling it from his pocket.

            Jesus, albeit Miguel’s brother, corroborated the events from which those inferences could reasonably be drawn.  In addition, Jesus offered testimony about Flores’ behavior immediately after the shooting and while fleeing the scene, suggesting Flores’ guilty state of mind. 

Because the jury was able to assess the credibility of the witnesses, free to accept the state’s version of the events, and permitted to reject Flores’ alternative theories of self-defense or accident, we conclude that it was reasonable for the jury to infer from Flores’ conduct and the surrounding circumstances that he acted with the intent to kill Miguel.


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.