This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,





Heriberto Sepulvada,



Filed December 24, 2007

Reversed and remanded

Randall, Judge

Dissenting, Kalitowski, Judge


Lyon County District Court

File No. K8-05-1187


Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

Richard Maes, Lyon County Attorney, 607 West Main Street, Marshall, MN 56258 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


On appeal from conviction of second-degree assault, appellant argues that (1) the district court abandoned its neutrality at trial by raising the issue of impeachment by prior conviction before the prosecution had moved to allow it; (2) the district court erred in failing to rule on the issue before appellant had taken the stand and in failing to allow defense counsel to reopen direct examination to reveal the prior crime; (3) the district court abused its discretion in analyzing the factors for admission of his prior conviction; and (4) the evidence was insufficient to support his conviction.  Because the timing and procedure of the district court’s ruling on the admission of the prior conviction unduly prejudiced appellant’s case, we reverse and remand.


On December 25, 2005, appellant Heriberto Sepulvada was drinking and dancing with a few friends at the Eagles Club Bar in Marshall, Minnesota.  Late in the evening, bar employees noticed appellant and two other men, including appellant’s friend, Mathusalun Castro, talking loudly and pushing each other.  A bouncer at the bar intervened by separating the men.  Shortly thereafter, appellant and Castro again began to argue and the bouncer escorted them out of the bar. 

            Appellant, Castro, and Castro’s girlfriend, Marcela Perez, stood outside the bar while the two men continued their argument.  The dispute escalated and appellant allegedly removed a knife from his right back pocket and stabbed Castro in the stomach.  The bouncer, who continued to periodically monitor the situation outside, noticed that Castro had been stabbed and told bar personnel to call 911.  Appellant reacted by fleeing the scene. 

            Marshall police responded to the bar and found Castro bleeding with a stab wound to his stomach.  In the meantime, an employee at Marshall Municipal Utilities (MMU), who had been listening to a police scanner and heard news of the stabbing, observed a man matching appellant’s description run past the MMU facility.  The employee then called the police.  Upon arriving, the police noticed fresh foot prints in the snow near the facility.  The police followed the prints, which led them to appellant who had climbed a tree nearby to avoid detection.  Although it was a cold winter night, appellant had removed his shirt and hung it in the tree.  The knife allegedly used to commit the assault was not recovered. 

            Appellant was charged with second-degree assault in violation of Minn. Stat. § 609.222, subds. 1, 2 (2004), and third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2004).  Appellant pleaded not guilty and a jury trial was held on the matter.  Prior to trial, the state moved to admit evidence of appellant’s prior conviction of felony aggravated assault with a deadly weapon as Spreigl evidence pursuant to Minn. R. Evid. 404(b).  The district court heard arguments on the motion and some confusion resulted from the disparate arguments of the state and appellant’s counsel regarding the evidentiary rules applicable for admission of the conviction.  The state addressed the applicable factors under Spreigl, while appellant’s counsel addressed admission of the conviction as impeachment evidence under Minn. R. Evid. 609(a).  The court noted the discrepancy in the parties’ analyses and took the motion under advisement.  The court did not reach a decision prior to trial.

            At the close of the state’s case-in-chief, the court again heard arguments for admission of the prior conviction as Spreigl evidence.  After reviewing the applicable Spreigl factors, the court denied the state’s motion.  During appellant’s case-in-chief, the court again considered the admissibility of the prior conviction, but this time as impeachment evidence.  After appellant had taken the stand, and just prior to appellant being cross-examined, and without any motion by the state, the court stated, “it would seem appropriate that we address the State’s request to use [appellant’s] prior conviction for the purpose of impeachment.”  The court considered arguments from both sides before ruling that the conviction was admissible for this purpose.  Consequently, appellant’s attorney requested that he be allowed to reopen his direct examination of appellant before the prosecution began cross examination.  The motion was denied. 

            Appellant was found guilty of one count of second-degree assault with a dangerous weapon, but was acquitted of all other charges.  Appellant was sentenced to 33 months in prison.  This appeal followed.  


Appellant contends that the procedure followed in admitting his prior conviction violated his due process rights because the district court abandoned its impartiality by raising the issue sua sponte.  Due process entitles a criminal defendant to an impartial and disinterested tribunal.  McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998).  A judge must have no actual bias against the defendant.  Id. When evaluating arguments challenging the impartiality of the tribunal, appellate courts consider whether the district court’s conduct prejudiced the outcome.  State v. Sime, 669 N.W.2d 922, 928 (Minn. App. 2003).  In doing so, this court must presume that the district court executed its duties properly.  McKenzie, 583 N.W.2d at 747.

Here, it is unclear what precipitated the court’s mid-trial decision to hear arguments on the admission of the conviction.  Nothing in the record indicates that appellant or the state requested a ruling on the impeachment issue prior to the court initiating arguments after direct examination of appellant.  It is possible that the confusion surrounding the pretrial motion hearing may have influenced the court’s actions.  We conclude there is no evidence that the court held any prejudice toward appellant. 

Appellant argues that the district court’s sua sponte consideration of the prior conviction and its subsequent refusal to reopen direct examination constitute reversible error.  Evidentiary rulings rest within the trial court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).  The party challenging the evidentiary ruling has the burden of establishing that the district court’s decision represents an abuse of discretion that resulted in prejudice.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). 

Appellant claims that he would not have testified had he known that the prior conviction would be admitted. At the very least, appellant argues he should have been allowed to reopen his direct testimony.  After reviewing the record, we agree that the timing of the decision to consider arguments resulted in error and prejudiced appellant’s case.  There is no indication in the record that the state intended to introduce the prior conviction for impeachment purposes, and the state’s motion to admit the conviction as Spreigl evidence at the close of the state’s case (before appellant had to make his final decision whether to testify or not) was denied.  In deciding whether to testify, appellant should have been entitled to rely on the court’s ruling that the prior conviction would be inadmissible.  If the court believed it necessary to consider appellant’s prior conviction for impeachment purposes, the appropriate time for such a determination would have been at the close of the state’s case, concurrent with the Spreigl motion, and prior to appellant taking the stand.  The error that resulted from the unprovoked consideration of appellant’s prior conviction for impeachment purposes was compounded by the court’s denial of the motion to reopen direct examination.  In doing so, the court deprived appellant of the opportunity to introduce the conviction in a more favorable fashion.  

The state contends that no error occurred and argues that appellant should have made a motion in limine to preclude the admission of the conviction.  The state relies on the comments to Minn. R. Evid. 609 to suggest that the burden is on appellant to seek a ruling on the admissibility of the conviction.  The comments state that “[c]ontrary to the practice in federal courts, the defendant can preserve the issue at a motion in limine and need not testify to litigate the issue in post trial motions and appeals.”  Minn. R. Evid. 609(a) 1989 comm. cmt., subd. a.  Similarly, the Trial Handbook for Minnesota Lawyers provides that “a party opposing the use of prior convictions should make a motion in limine and seek a hearing . . . regarding the admissibility of the conviction.”  23 Ronald I. Meshbesher, Minnesota Practice § 28.13 (2007).   

Finally, the state cites State v. Reed, 737 N.W.2d 572, 588-89 (Minn. 2007).  In Reed, at the conclusion of the state’s case-in-chief, the state informed the court that it reserved the right to offer the defendant’s prior conviction as Spreigl evidence if the defendant chose to testify.  737 N.W.2d at 588.  Shortly thereafter, the defendant indicated that he would waive his right to testify because he believed that the court would allow admission of the prior conviction under Spreigl.  737 N.W.2d 588.  In response to the defendant’s assertion, the court clarified that it had not decided whether to admit the conviction, but articulated that its decision on admission of the conviction would depend on the evidence presented in defendant’s case-in-chief.  Id.  The defendant ultimately did not testify and claimed that it was error for the court to reserve its ruling.  Id

In reviewing the district court’s action, the supreme court held that the decision to reserve the issue did not constitute error.  Id. at 589.  The supreme court explained that if the defendant was apprehensive about the potential damage that might result from admission of the conviction, he could have asked for a ruling on its admissibility, and if the court declined, the defendant “could have put on his defense and, if the conviction were ultimately admitted, challenged that admission on appeal.”  Id   

            Reed, like the other authority relied upon by the state,indicates that a defendant who is vacillating about whether to testify in the face of a threat by the state to move for admission of damaging evidence should request an in limine evidentiary ruling before testifying.  Appellant did just that by arguing against its admission before trial.  Had the state moved or communicated an intent to introduce the conviction as impeachment evidence before appellant testified, we agree that Reed would be persuasive.  This case is distinguishable in that the state neither moved nor threatened to move for admission of appellant’s prior conviction under Minn. R. Evid. 609(a), and the Spreigl motion for admission that was made prior to appellant choosing to testify was denied.  The time for ruling on the conviction’s admission as impeachment, if the court wanted to raise that issue sua sponte, would have been before the defendant made his decision to take the stand or not.  The timing of the court’s ruling on Spreigl was proper and fair to appellant – the court’s timing on its ruling on impeachment evidence was not.

            We agree with the state’s assertion that, based on defense counsel’s arguments at the pretrial motion, appellant had notice that the court might revisit the admissibility of the prior conviction for impeachment purposes.  But the court simply waited too long to “revisit” the issue.  The timing of the court’s ruling interfered with appellant’s constitutional right to testify on his own behalf.  By waiting until after appellant had already taken the stand to consider the admissibility of the prior conviction for impeachment purposes, the district court compromised appellant’s right to make a knowing, informed decision about the risks involved in testifying.  Prejudice attached. This was error.

            We reverse and remand on the above issues.  Appellant also challenges the sufficiency of the evidence supporting the conviction.  On this issue, after a careful review of the record, we conclude the record contains sufficient evidence to sustain the conviction.

            Reversed and remanded.


KALITOWSKI, Judge (dissenting)

            I respectfully dissent.  The district court properly exercised its discretion in applying the Jones factors and determining that appellant’s 2004 conviction of second-degree assault with a deadly weapon was admissible.

            In addition, neither the timing nor the procedure employed by the district court constituted error.  The record indicates that (1) at a pretrial hearing arguments regarding admission of the conviction as both Spreigl evidence and Minn. R. Evid. 609(a) impeachment evidence were presented to the district court; (2) the court did not issue a decision on the admissibility of the convictions as either Spreigl or impeachment evidence at that time; (3) appellant failed to seek a ruling on the conviction’s admissibility prior to the start of the trial; (4) notwithstanding appellant’s failure to get a ruling on admissibility, defense counsel stated in his opening statement:  “Now, you’re also going to hear from my client himself”; (5) because the issue of impeachment evidence had been raised before trial, the district court properly raised the issue prior to the state’s cross-examination of appellant; and (6) the district court properly sought additional arguments from both counsel concerning the admissibility of the evidence outside the presence of the jury.

            Moreover, even if the district court erred in either the procedure, timing, or substance of its ruling allowing admission of appellant’s prior conviction for impeachment purposes, the error was harmless.  Any error did not substantially influence the jury’s decision because (1) the evidence against appellant was strong, including eyewitness testimony and evidence of flight by appellant; (2) the impeachment evidence offered by the state was not improperly emphasized, but consisted only of a single sentence: “Mr. Sepulveda, isn’t it true that you were convicted of Aggravated Assault with a Deadly Weapon, a second degree felony, in Hidalgo County, Texas, on March 11, 2004?”; and (3) the district court properly instructed the jury that it could not consider the prior conviction as evidence of appellant’s guilt.

            On this record I would affirm the district court.