This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996)




State of Minnesota,



Stonewall Jackson Drain,


Filed November 4, 1997


Schumacher, Judge

Hennepin County District Court

File No. 95103586

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

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Norton, Judge, and

Schumacher, Judge.



Appellant Stonewall Jackson Drain appeals from his conviction for third degree criminal sexual conduct arguing he is entitled to a new trial because the trial court erred in denying his motion to impeach the victim with a prior attempted theft conviction, and the prosecutor improperly referred to the victim's previous sexual conduct during cross-examination of a witness and in closing argument. We affirm.


Drain was charged with third degree criminal sexual conduct after the victim reported that Drain forced her to engage in sexual intercourse in her room at a residential facility where Drain and the victim resided. The jury returned a verdict of guilty and the trial court sentenced Drain to the presumptive prison term of 48 months. Drain's motion for a new trial was denied. On appeal, Drain alleges that errors in the trial court's evidentiary rulings entitle him to a new trial.


1. Drain argues the trial court erred in denying his motion to impeach the victim with a prior attempted theft conviction. In October 1995, the victim, initially charged with check forgery, offering a forged check, and attempted theft after presenting a stolen and forged check to a bank, pleaded guilty to misdemeanor attempted theft pursuant to a plea agreement. Drain claims the attempted theft conviction was admissible in evidence under Minn. R. Evid. 609(a)(2) (1996) as a crime of dishonesty or false statement.

The construction of a rule of evidence is a question of law and is reviewed de novo. State v. Head, 561 N.W.2d 182, 185 (Minn. App. 1997), review denied (Minn. May 28, 1997) (citing Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735-36 (Minn. 1996)). We will sustain a trial court's evidentiary rulings unless the trial court abused its discretion. State v. Hoffman, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). If the trial court erred in excluding evidence at trial, a conviction will be affirmed if the error was harmless beyond a reasonable doubt. Head, 561 N.W.2d at 187 (citing State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)).

Under Rule 609(a)(2), a conviction for a crime of dishonesty or false statement is automatically admissible in evidence to impeach a witness and the trial court has no discretion to exclude it. Head, 561 N.W.2d at 186. In determining whether a prior conviction is admissible under Rule 609(a)(2), the court must consider "not just the type of crime committed, but also * * * the manner in which the crime is carried out." State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992).

A theft offense may involve dishonesty or false statement. State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994). Whether a theft conviction is automatically admissible under Rule 609(a)(2)

depend[s] on what kind of act of thievery was involved: if the prior conviction was based on an act of shoplifting, e.g., then it was not for a crime directly involving dishonesty or false statement, but if, for example, the prior conviction was for the act of swindle, then it was for a crime directly involving dishonesty or false statement.


The trial court, equating the prior attempted theft conviction to a shoplifting offense, held the conviction did not involve a crime of dishonesty or false statement and excluded it. Cf. State v. McDonald, 394 N.W.2d 572 (Minn. App. 1986) (holding shoplifting is not a crime involving dishonesty or false statement), review denied (Minn. Nov. 26, 1986). We disagree.

The facts underlying the victim's conviction indicate the attempted theft was committed in a manner involving deceit. The charge resulted from the victim's act of offering a forged check. We find this act more analogous to an act of swindle than to an act of shoplifting. See also State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993) (holding a conviction for forgery is automatically admissible pursuant to Rule 609(a)(2) because the offense involves deceit). Because the victim committed the attempted theft in a manner involving deceit, the trial court may have erred in denying Drain's motion to admit the conviction for impeachment purposes.

We conclude, however, that the error, if any, was harmless beyond a reasonable doubt. In addition to the victim's testimony, the state presented ample evidence supporting the jury's guilty verdict, including a videotape from a surveillance camera in the residential facility showing the interactions between the victim and Drain immediately before the incident, and the testimony of other witnesses present at the facility during the incident. Moreover, Drain's attorney fully cross-examined the victim. Other evidence reflecting on the victim's truthfulness was introduced. In light of these factors, we are satisfied beyond a reasonable doubt that an average jury would have reached the same verdict if the trial court had admitted the victim's prior conviction and the damaging potential of the evidence had been fully realized. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

2. Drain argues the prosecutor improperly referenced the victim's previous sexual conduct during cross-examination of a witness and closing argument by mentioning a conversation during which the victim stated she might give a potential suitor "a thirty-day trial without sex." Drain claims the trial court permitted these references in contravention of Minnesota's rape shield law, Minn. R. Evid. 412 (1996), which prohibits the introduction of evidence of the victim's previous sexual conduct except under limited circumstances. Id. Because the trial court overruled his objections and denied his motion to present rebuttal evidence, Drain argues he is entitled to a new trial.

A defendant has the burden of showing error and prejudice in challenging the trial court's admission of evidence. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). When the trial court errs in admitting certain evidence, we will reverse a conviction only if there is a reasonable possibility that the evidence significantly affected the verdict. Post, 512 N.W.2d at 102 n.2.

We find no merit in Drain's argument. The victim's statement about a "thirty-day trial without sex," did not concern the victim's previous sexual conduct. At most, this statement was the victim's speculation about her future sexual conduct, evidence that is not within the purview of Rule 412. Moreover, the prosecutor's references to the statement were fleeting. The prosecutor did not argue the inferences to be drawn from the statement or focus on the statement during closing argument. Finally, it is highly unlikely the fleeting references to the statement affected the jury's verdict. The state presented sufficient evidence to support the verdict of guilty and the prosecutor's references to the statement were not inflammatory so as to unfairly prejudice Drain.