This opinion will be unpublished and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
Filed January 9, 2007
Hennepin County District Court
File No. 04069430
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Mike Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Worke, Judge, and Ross, Judge.
Whyte appeals from his conviction for kidnapping and first-degree criminal
sexual conduct and from his sentence. Appellant
argues that the district court abused its discretion by admitting for
impeachment purposes evidence of his prior felony convictions of burglary and
controlled-substance crime, and Spreigl evidence
of his 1993 criminal sexual conduct conviction.
Appellant also argues that the prosecutor committed prejudicial
misconduct in closing argument by repeatedly using first-pronoun prefatory
phrases such as “I submit” and “I will submit to you.” Finally, appellant challenges his enhanced
sentence, arguing that the district court lacked authority to impanel a
sentencing jury to comport with Blakely. Because we conclude that the district court
did not abuse its discretion by admitting appellant’s prior convictions for
impeachment purposes and that the prosecutor did not commit misconduct, we
affirm the conviction. And because under
the supreme court’s recent decision in State
v. Chauvin, 723 N.W.2d 20 (
D E C I S I O N
of a prior conviction may be admitted to attack the credibility of a witness
when the conviction is less than ten years old, the offense is punishable by
imprisonment for more than one year, and the probative value of the evidence
outweighs its prejudicial effect.
Appellant was impeached with evidence of two convictions, a 1998 burglary conviction and a 2004 controlled substance conviction. Although neither is a conviction for an offense involving dishonesty, both convictions were punishable by imprisonment in excess of one year and occurred within ten years of the present offense, satisfying the basic requirements of Minn. R. Evid. 609.
Furthermore, after considering the other Jones factors, we conclude that the probative value of this evidence outweighed its prejudicial effect.
the more similar a past crime is to the current offense, the greater is the
danger that the jury will use the evidence not only for impeachment but also
substantively. State v. Gassler, 505 N.W.2d 62, 67 (
Second, both offenses, as well as the date of release from confinement for the offenses, were within ten years of the current offense, and although appellant had no convictions between 1998 and 2003, he was under supervision during that time; the controlled substance conviction occurred within a year following his release from supervision. This is sufficient to show a “pattern of lawlessness” that enhances the probative value of the conviction. Ihnot, 575 N.W.2d at 586.
Third, courts are encouraged to exclude impeachment testimony if use of such evidence would cause a defendant not to testify and prevent a jury from hearing the defendant’s version of events. See Gassler, 505 N.W.2d at 67. Despite admission of the impeachment evidence, appellant did testify.
the probative value of impeachment testimony is enhanced when the defendant’s
credibility is a central issue in the case.
State v. Bettin, 295 N.W.2d
542, 546 (
evidence aids the jury by allowing it to see the “whole person” and thereby
better assess the truth of the defendant’s testimony. State
v. Flamino, 721 N.W.2d 326, 328 (
of prior bad acts, generally known as Spreigl
evidence, is inadmissible to prove that a defendant acted in conformity with
his or her character but is admissible to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.
Spreigl evidence is admissible if (1)
the state gives notice of its intent to introduce the evidence; (2) the state clearly
indicates what the evidence is offered to prove; (3) there is clear and
convincing evidence that the defendant participated in the prior offense; (4)
the evidence is relevant and material to the state’s case; and (5) the
probative value of the evidence is not outweighed by its prejudicial
effect. Angus v. State, 695 N.W.2d 109, 119 (
Spreigl evidence is relevant and
material when there is a sufficiently close relationship between the Spreigl evidence and the charged offense
in terms of time, place, and modus operandi. State v. Kennedy, 585 N.W.2d 385, 390 (
Here, the Spreigl offense, a 1993 sexual assault conviction, is markedly similar to the current first-degree criminal sexual conduct offense. In both offenses, appellant confronted the victim on the street, threatened her at knifepoint, and sexually assaulted her while holding two knives, later asserting that both victims engaged in sex in exchange for money or drugs. The Spreigl offense and the charged offense are thus substantially similar in modus operandi.
At trial, appellant testified that the victim had fabricated events. The supreme court has consistently upheld the admission of Spreigl evidence to establish that an act occurred and to refute a defendant’s allegation that the victim’s testimony was fabricated. See, e.g., Kennedy, 585 N.W.2d at 391 (holding Spreigl evidence of subsequent sexual assault relevant to jury’s determination of whether defendant sexually assaulted victim, as victim testified, or whether victim’s testimony was fabrication); State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (stating that Spreigl evidence was “highly relevant” in rebutting defense that victim was fabricating or imagining the occurrence of sexual contact); State v. Anderson, 275 N.W.2d 554, 555-56 (Minn. 1978) (upholding admission of Spreigl evidence to refute defendant’s allegation that victim’s testimony was fabricated); State v. Shuffler, 254 N.W.2d 75, 76 (Minn. 1977) (stating that Spreigl evidence was “directly relevant” to determination of defendant’s claim that the victim’s testimony was fabricated). Thus, the Spreigl evidence was relevant to show a lack of consent and to rebut the claim that the victim had fabricated her testimony.
relevant evidence may be excluded if its potential for unfair prejudice
substantially outweighs its probative value.
In the absence of objective forensic findings, the district court concluded that the evidence of sexual penetration and lack of consent was weak. The Spreigl evidence bolstered this evidence by showing a common plan or scheme, as well as calling into question appellant’s claim that the victim consented to sexual penetration. Under these circumstances, the district court did not abuse its discretion by admitting the evidence.
defendant who fails to object to prosecutorial misconduct generally waives the
right to have the issue considered on appeal.
State v. Sanders, 598 N.W.2d
650, 656 (
may not interject their personal opinions into a case, in order to prevent
“exploitation of the influence of the prosecutor’s office.” State
v. Blanche, 696 N.W.2d 351, 375 (
of the supreme court’s recent decision in State
v. Chauvin, 723 N.W.2d 20 (
conclude that the district court exercised its inherent authority to conduct a
bifurcated trial and to ask the jury to make factual findings on aggravating
sentencing factors in compliance with the procedure set forth in Chauvin, we affirm the upward departure from the presumptive sentence.