This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 18, 2006
Clay County District
File No. K2-03-1988
Mike Hatch, Attorney General, John B. Galus, Assistant
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN
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)
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
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.
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.
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
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.
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!”
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.
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.
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.
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.
D E C I S I O N
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.
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.
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.
the prosecutor questioned Miguel during the trial about the argument he had
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?
as is [Flores], correct?
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
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.
you say that that would be something that’s more objectionable in your culture?
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
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.
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
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
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
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
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.
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.
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.
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.
of credibility issue
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.
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.
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
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.
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,
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.
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).
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.
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