This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Hennepin County District Court
File No. 04055866
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck,
Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
In this appeal from convictions of two counts of first-degree criminal sexual conduct, appellant Carlton V. Watson argues that the district court erred when it (1) did not sua sponte give the jury a specific unanimity instruction; and (2) admitted evidence of his prior convictions for impeachment purposes. We affirm.
Appellant, age 45, met E.G. in November 2003 and began dating her. In April 2004, appellant began living with E.G. in the home that she shared with her sons and her daughter, A.G. The children had downstairs bedrooms, and E.G. and appellant had a bedroom upstairs. On August 17, 2004, E.G. went downstairs and saw appellant leaving her daughter’s bedroom. She went into A.G.’s bedroom and found A.G. in the closet in a fetal position under a comforter. She asked A.G. what happened, and A.G. said that appellant had touched her. E.G. took A.G. to a hospital where A.G. spoke with a nurse about what had happened to her and said that it had been happening for the last couple of months. At the hospital, A.G. told a police officer about the incidents and said that they had been occurring since June. On August 19, 2004, A.G. was interviewed by staff at Cornerhouse, an interagency child-abuse evaluation center, and told the interviewer that appellant had been touching her since June.
Appellant was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (g) (2004), and a jury found appellant guilty on both counts. This appeal followed.
1. Appellant argues that the district court violated his right to a unanimous jury verdict when it failed to give the jury a specific unanimity instruction. Appellant did not request a specific unanimity instruction and did not object to the jury instructions that were given.
Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial. In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law.
State v. Baird, 654 N.W.2d 105, 113 (
jury need not . . . decide unanimously which of several possible means the defendant used to commit the
offense . . . .” State v. Ihle, 640 N.W.2d 910, 918 (
In Stempf, the defendant was charged with
one count of possessing methamphetamine, but the state introduced evidence that
the defendant possessed methamphetamine at the premises of his workplace and in
the truck in which he was riding when he arrived at work.
Because the state did not elect which act of possession it was relying on for conviction, . . . the trial court’s refusal to give a specific unanimity instruction violated [the defendant’s] right to a unanimous verdict. Some jurors could have believed [the defendant] possessed the methamphetamine found on the premises while other jurors could have believed [the defendant] possessed the methamphetamine found in the truck.
was charged with two counts of first-degree criminal sexual conduct: sexual
penetration with a complainant under age 13 when the defendant is more than 36
months older than the complainant; and sexual penetration with a complainant
under age 16 and the defendant has a significant relationship to the
Citing Stempf, appellant argues that the district court erred when it failed to instruct the jury that in order to find him guilty, it must unanimously agree that he committed a specific act. Appellant contends that because the prosecution introduced evidence of multiple distinct acts, some jurors could have found him guilty based on one alleged act and other jurors could have found him guilty based on another alleged act.
But unlike the
defendant in Stempf, appellant did
not request that the district court give the jury a specific unanimity instruction
or object to the instructions that were given.
Absent an objection to the instructions at trial, we will only review
the instructions for plain error. Baird, 654 N.W.2d at 113. A
required element of the plain-error test is that the error affected substantial
Appellant does not articulate any reason why some jurors would have credited A.G.’s testimony about one of the alleged acts but not about the other alleged acts. In State v. Shamp, 427 N.W.2d 228, 231 (Minn. 1988), the supreme court held that the district court’s failure to instruct the jury that it could not base the conviction on acts of abuse occurring outside the period of the statute of limitations was not prejudicial and, therefore, not plain error. The holding was based on the supreme court’s conclusion that there was no reasonable likelihood that the jury somehow discredited the victim’s testimony relating to abuse occurring within the limitations period but credited her testimony concerning abuse occurring earlier. Shamp, 427 N.W.2dat 231. Here, as in Shamp, there is no reasonable likelihood that the jury would have credited A.G.’s testimony about one of the alleged acts but not about the other alleged acts. Because appellant has failed to establish a required element of the plain-error test, he is not entitled to reversal of his conviction based on the district court’s failure to give a specific unanimity instruction.
argues that the district court erred by admitting evidence of his prior felony
convictions for impeachment purposes. The
district court’s ruling on the impeachment of a witness by prior conviction is
reviewed under a clear-abuse-of-discretion standard. State
v. Ihnot, 575 N.W.2d 581, 584 (
“(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.”
N.W.2d at 586 (quoting State v. Jones,
271 N.W.2d 534, 537-38 (
Before trial, the
state declared its intention to impeach appellant with his prior felony
convictions if he chose to testify at trial.
The prior felony convictions were for (1) residential burglary in
A. Impeachment Value
that his prior convictions do not involve dishonesty, and, therefore, they have
little true impeachment value. But in State v. Brouillette, 286 N.W.2d 702, 708
“The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth. What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. . . . Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey . . . though the violations are not concerned solely with crimes involving ‘dishonestly and false statement.’”
Here, the district court noted “that when anyone testifies, that jurors need to be able to know that whole person.” Appellant argues that the “whole person” rationale runs counter to a growing body of knowledge about how a jury actually uses evidence of prior convictions. But knowledge that a jury may improperly use evidence of a prior conviction does not permit us to disregard supreme court precedent. Under Brouillette, appellant’s prior convictions are probative of credibility.
B. Date of Conviction and Subsequent History
Under this factor,
we evaluate the date of a conviction and appellant’s subsequent history to
determine whether the conviction has lost its relevance over time. Vanhouse,
634 N.W.2d at 720 (citing State v. Bettin,
295 N.W.2d 542, 546 (
Evidence of a conviction . . . is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
Appellant argues that this factor weighs against admitting the 1989 residential-burglary conviction because he was released from confinement imposed for that conviction in 1993, which was more than ten years before the current offense. But in Vanhouse, this court determined that because the witness’s criminal record included two driving-after-revocation offenses and a misdemeanor theft that occurred after a criminal-sexual-conduct conviction, the continuing misconduct prolonged the probative value of the otherwise stale criminal-sexual-conduct conviction. 634 N.W.2d at 718, 720; see also Bettin, 295 N.W.2d at 546 (finding that aggravated-rape conviction did not lose relevance over time because defendant was in prison between offenses). As in Vanhouse, appellant’s continued misconduct could reasonably prolong the probative value of the 1989 residential-burglary conviction.
C. Similarity of Crimes
“The danger when the past crime is similar to the charged crime is that the likelihood is increased that the jury will use the evidence substantively rather than merely for impeachment purposes.” Bettin, 295 N.W.2d at 546. The greater the similarity, the greater the reason for not permitting use of the prior crime to impeach. Jones, 271 N.W.2d at 538. Appellant acknowledges that his prior convictions were not for offenses that are similar to the current offenses, but he argues that there is always the potential for jurors to view a defendant dimly because of a criminal record and to conclude that the defendant is a bad person in spite of the dissimilarity of the offense. This argument, however, is simply an argument that prior convictions should not be admitted for impeachment purposes; it does not meaningfully address the fourth Jones factor. Because appellant’s prior convictions were not for offenses that are similar to the current offense, this factor favors admission of the prior convictions.
D. Importance of Appellant’s Testimony
the admission of prior convictions prevents a jury from hearing a defendant’s
version of events, this weighs against admission of the prior convictions. State
v. Gassler, 505 N.W.2d 62, 67 (
E. Centrality of Appellant’s Credibility
[T]he general view is that if the defendant’s credibility is the central issue in the case—that is, if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person—then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.
Bettin, 295 N.W.2d at 546.
testified and denied A.G.’s allegations, his credibility would have been
central to the case. The jury would have
had to decide whether to believe appellant or A.G. “If credibility is a central issue in the
case, the fourth and fifth Jones
factors weigh in favor of admission of the prior convictions.”
State v. Swanson,707
N.W.2d 645, 655 (
We conclude that after a proper application of the Jones factors, evidence of appellant’s prior convictions could have been admitted for impeachment purposes. Therefore, the district court’s failure to explicitly address the five Jones factors is harmless error, and the district court did not clearly abuse its discretion by admitting evidence of the prior convictions.
 Appellant does not dispute that evidence of the forgery conviction was admissible under Minn. R. Evid. 609.