This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Nathaniel (NMN) Black,


Filed January 27, 1998


Davies, Judge

Hennepin County District Court

File No. 96014719

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

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

Mark D. Nyvold, 1030 Minnesota Bldg., 46 East Fourth St., St. Paul, MN 55101 (for appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.



Appellant Nathaniel Black asks this court to reverse his convictions of criminal sexual conduct in the third degree and receiving profit from prostitution; he also asks for a new trial. We affirm.


After her arrest on February 20, 1996, B.U., a 15-year-old female runaway, told Minneapolis police that appellant had been forcing her to work as a prostitute. B.U. also told police that appellant had had sexual intercourse with her 10 to 15 times during the previous month. Appellant was charged based on B.U.'s statements.

Appellant sought to introduce evidence of B.U.'s prior accusations against other men. The trial court refused to admit the prior allegations or allow appellant to cross-examine B.U. about them, ruling that appellant had not established a likelihood that the allegations were false. The trial court also decided that appellant's 1994 conviction for fourth-degree criminal sexual conduct would be admissible to impeach appellant if he testified.

Appellant was convicted of receiving profit from prostitution and criminal sexual conduct in the third degree. He was sentenced to nine years and two months in prison for the first offense, to be served concurrently with a three-year sentence for the second offense. This appeal followed.



[P]rior accusations of [sexual misconduct] are relevant only to the victim's propensity to be truthful if there has been a determination that the prior accusations were indeed fabricated.

State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Before admitting evidence of prior false accusations, the trial court must determine that a reasonable probability of falsehood exists. Id. If the falsity of the prior allegations is clear, they may be admitted to impeach the accuser's other testimony. Id.

The trial court held that appellant had not shown a likelihood that B.U.'s previous allegations of sexual misconduct had been false. We agree. Appellant offered no evidence tending to show that any of B.U.'s allegations were false. The record, rather, indicates that several of her prior allegations were probably true. The trial court, therefore, did not err by refusing to admit direct or cross-examination evidence of B.U.'s prior accusations of sexual misconduct.


Evidence of a prior conviction is admitted for impeachment purposes only if the trial court determines that the probative value of the prior conviction outweighs its prejudicial effect. Minn. R. Evid. 609(a). The trial court must consider

(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.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). The trial court's decision to admit a prior conviction for impeachment purposes will not be overturned on appeal absent a clear abuse of discretion. State v. Newman, 408 N.W.2d 894, 899 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).

Weighing against admission of appellant's prior conviction are the similarity of the prior crime with the charged crime and the importance of appellant's testimony. See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (close similarity between prior crime and charged crime does not preclude use for impeachment, although it does weigh against admission). Although it was important that appellant have an opportunity to testify, this factor must be balanced against other factors favoring admission of the prior conviction. State v. Larsen, 442 N.W.2d 840, 843 (Minn. App. 1989).

Minnesota Rule of Evidence 609

sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility.

State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979); see also State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (citations omitted) ("While sexual crimes have less bearing on veracity than do many other crimes, impeachment is not improper simply because the prior crime is not directly related to truth or falsity."); State v. Lloyd, 345 N.W.2d 240, 246-47 (Minn. 1984) (in trial for first-degree murder, denial of motion to prohibit use of prior conviction for similar crime was not error even though "the prior conviction in question has a less direct bearing on credibility than crimes involving untruthful conduct"). Weighing in favor of admission were the recent date of the prior conviction and the fact that credibility was a central issue in this case. The trial court did not abuse its discretion by holding that the probative value of appellant's prior conviction outweighed its prejudicial effect.

Appellant argues that the threat to admit his prior conviction effectively prevented him from testifying. It is true that "a judge might exclude even a relevant prior conviction if he determines that its admission for impeachment purposes will cause defendant not to testify." Bettin, 295 N.W.2d at 546. But the trial court's decision did not bar appellant from testifying. Admission of appellant's prior conviction would simply have allowed the jury to consider that conviction when determining the credibility of appellant's testimony. See State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985) (admitting evidence of prior convictions "did not directly prevent [appellant] from testifying. He could have done so, but had he taken the stand and thereby put his credibility at issue, his past crimes, determined relevant to his credibility under the Rules of Evidence, could be used to impeach him."). Minnesota courts have consistently rejected the "chilling" argument. State v. Meech, 400 N.W.2d 166, 168 (Minn. App. 1987). The trial court did not abuse its discretion by deciding that appellant's prior conviction would be admissible for impeachment purposes.


Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Minn. R. Evid. 611(b). We will not reverse the trial court's decision regarding the manner and scope of cross-examination absent a clear abuse of discretion. State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984).

The trial court did not abuse its discretion by allowing the state to cross-examine B.U.'s mother about phone calls in which B.U. stated that she worked as a prostitute for appellant. It would have been manifestly unfair to allow mother to testify that B.U. was not known as a truthful person and then not to allow the state to rehabilitate B.U. by showing that she made several prior statements to mother that were consistent with her testimony at trial. There was no reversible error.


Appellant, in his pro se supplemental brief, argues that his appointed trial counsel provided ineffective assistance. Appellant must show that his counsel's performance was deficient and "`fell below an objective standard of reasonableness.'" Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Appellant must also demonstrate prejudice by establishing a reasonable probability that, but for some unprofessional error by counsel, the outcome of the case would have been different. Hennepin County v. Perry, 561 N.W.2d 889, 894-95 (Minn. 1997) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Appellant has shown neither deficient performance nor prejudice. The record shows that appellant's appointed counsel was competent and aggressive in her advocacy. We therefore reject appellant's claim of ineffective assistance of counsel.