This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-819

State of Minnesota,

Respondent,

vs.

Richard Allen Ihnot,

Appellant.

Filed February 24, 1997

Reversed

Willis, Judge

Anoka County District Court

File No. K69511844

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, Minnesota 55303-2265 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 95 Law Center, University of Minnesota, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Richard Ihnot challenges the district court's ruling that his prior conviction for criminal sexual conduct would be admissible for impeachment purposes if he testified at trial. We reverse.

FACTS

Ihnot lived with his girlfriend, T.D., and T.D.'s daughter, A.D., who was born October 21, 1987. A.D. reported that Ihnot began sexually abusing her when she was in kindergarten and that the abuse included various acts of vaginal and anal penetration and oral sex, continuing for more than two years.

On September 13, 1995, A.D.'s custody was transferred to T.S., A.D.'s biological father, who lived with his wife, L.S., and their children. Concerned about A.D.'s health and suspecting that she had been sexually abused, L.S. made an appointment for A.D. to see a physician. L.S. explained to A.D. that the doctor would be able to tell if anyone had touched her inappropriately. This prompted A.D. to discuss the abuse.

The sexual abuse was reported to Anoka County Social Services, which notified the Anoka County Sheriff's Office. A.D. described the instances of abuse to investigator Robert J. Bredsten with the aid of anatomically correct dolls. A.D. told the investigator that Ihnot warned her not to tell anyone or Ihnot and she would get into trouble.

Kimberly A. Martinez, a pediatric nurse practitioner who specializes in child sexual and physical abuse, interviewed A.D. and gave her a physical examination. The results of A.D.'s genital examination were normal, but Martinez explained that this is common in sexually abused girls because there are no signs of abuse unless the examination is conducted immediately after the abuse occurs. In Martinez's opinion, A.D. had been sexually abused.

Ihnot was arrested on October 9, 1995, and was charged with four counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342. Ihnot pleaded not guilty, and the matter was set for a jury trial.

At a pretrial hearing, the district court granted the state's motion to allow into evidence for impeachment purposes Ihnot's 1984 conviction for third-degree criminal sexual conduct. Because of that ruling, Ihnot chose not to testify at trial. After deliberating for two hours, the jury convicted Ihnot on all four counts. Ihnot was sentenced to a 244-month prison term, and this appeal followed.

D E C I S I O N

The district court has broad discretion in determining whether to allow prior conviction evidence to impeach a defendant. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). A court's decision to allow such evidence will not be reversed absent a clear abuse of discretion. State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985).

Ihnot argues that the district court abused its discretion in ruling that the state could use his 1984 criminal sexual conduct conviction for impeachment purposes because a period of more than 10 years had elapsed since that conviction. We agree.

Minn. R. Evid. 609 provides, in part:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

(b) Time Limit. Evidence of a conviction under this rule 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.

In 1984, Ihnot was convicted of third-degree criminal sexual conduct and was sentenced to 18 months stayed and 6 years' probation. While the 1984 conviction did not involve dishonesty or false statement, it was a crime punishable by imprisonment in excess of one year.

In granting the state's motion to admit the 1984 conviction for impeachment purposes, the district court found that the similarity of that conviction to the current charge was not complete, because the earlier conviction was in the third degree, not the first degree, and the victim of the 1984 offense was a 14-year-old baby sitter, not, as here, a child between five and seven years old. The district court then concluded "that the probative value outweighs the prejudicial effect of allowing this in."

The district court also determined that Ihnot's 1984 conviction was "not stale in that he was released from probation in 1990." Release from probation is not, however, release from "the confinement imposed for [the] conviction," within the meaning of rule 609(b). While a conviction may be admitted for impeachment purposes even if more than 10 years has elapsed since the date of conviction or the release from confinement, in such a circumstance admissibility is predicated on a finding by the district court "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Minn. R. Evid. 609(b) (emphasis added). Because the district court did not make such a finding here, it abused its discretion by admitting Ihnot's 1984 conviction.

We cannot conclude that the district court's decision to admit Ihnot's 1984 conviction was harmless error. It is not clear from the record before us that the probative value of the 1984 conviction would substantially outweigh its prejudicial effect, and it appears that Ihnot's decision not to testify in his own defense was the result of the district court's decision that the 1984 conviction was admissible.

Ihnot's right to testify in his own defense is protected both by the Due Process Clause of the United States Constitution and by Minnesota law. Gassler, 505 N.W.2d at 67. Although Ihnot was not prevented from testifying, his decision not to testify resulted from the district court's ruling on the admissibility of appellant's 1984 conviction for criminal sexual conduct. Because that ruling was not supported by a finding that the probative value of the conviction substantially outweighs its prejudicial effect, we conclude that Ihnot's right to testify was infringed by the threat of that impeachment evidence. See id. at 68 (stating that when a district court has abused its discretion under rule 609(a)(2) a defendant's right to testify may be infringed by the threat of impeachment evidence).

Because of our disposition of the admissibility issue, we need not address the other matters raised by Ihnot.

Reversed.

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