This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



James Darin Rosenau,


Filed April 13, 1999


Davies, Judge

Hennepin County District Court

File No. 97095927

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

P. Areanna Coale, 700 St. Paul Bldg., Six West Fifth St., St. Paul, MN 55102 (for appellant) Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.



Appellant challenges his conviction for second-degree assault, arguing that (1) the trial court erred in its decision to admit for impeachment purposes evidence of appellant's five prior felony convictions and (2) the prosecutor committed misconduct during closing arguments by referring to appellant's failure to testify. We affirm.


During a fight, appellant James Darin Rosenau stabbed Joseph Knight in the face and chest. Appellant was arrested and charged with two counts of second-degree assault.

Appellant had prior felony convictions for aggravated robbery (1986), first-degree assault (1986), second-degree assault (1991), attempted theft (1991), and third-degree burglary (1991). At the pretrial hearing, the trial court ruled that, if appellant testified, these five prior convictions could be used for impeachment purposes. Appellant claims he was prejudiced by this ruling because it caused him not to testify.

At trial, the victim and two of his friends testified that appellant had initiated the confrontation and was the aggressor in the fight. Appellant's one witness testified that appellant had been threatened and attacked by the victim. Relying on this evidence, appellant claimed self-defense.

The jury found appellant guilty of both charges and the trial court sentenced him to a 60-month (5-year) executed sentence. This appeal follows.


I. Admission of Prior Convictions

The admission of prior convictions for impeachment purposes is governed by Minn. R. Evid. 609:

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 * * * 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.

Minn. R. Evid. 609(a). "A trial court's evidentiary ruling under [rule 609] must be sustained unless a clear abuse of discretion is shown." State v. Hofmann, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

Appellant's prior convictions did not involve dishonesty or false statement. See State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994) (aggravated robbery not crime of dishonesty or false statement); State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (same for aggravated assault); State v. Ross, 491 N.W.2d 658, 660 (Minn. 1992) (same for burglary). Although theft may involve dishonesty or false statement (e.g., theft by swindle), if the prior conviction was for a crime such as shoplifting, the crime is not viewed as involving dishonesty or false statement. Sims, 526 N.W.2d at 202. Here, appellant was convicted in 1991 for attempting to steal a pickup truck. This crime is more analogous to shoplifting than to swindle and the facts of that conviction do not indicate that appellant used false statements in his attempt to steal the truck.

Thus, appellant's prior convictions were not admissible as being for crimes involving dishonesty or false statement.

But they were punishable by imprisonment for in excess of a year and admissible for impeachment purposes if their admission is more probative than prejudicial. To make such a determination, we consider five factors:

(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 * * *, (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978); see also State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (reaffirming applicability of Jones factors in determining whether, under rule 609, probative value of past convictions outweighs prejudice).

A. Impeachment Value

"[I]mpeachment by prior crime aids the jury by allowing it to `see the "whole person" and thus to judge better the truth of his testimony.'" State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)). Further, a "`lack of trustworthiness may be evinced by [the defendant's] abiding and repeated contempt for laws.'" Id. (quoting State v. Duke, 123 A.2d 745, 746 (N.H. 1956)). Here, if appellant had testified, he would have been asking the jury to accept his word. The evidence of the past convictions would have assisted the jury in weighing his credibility.

B. Date of Conviction

If the later of a witness's prior conviction, or release from confinement for that conviction, occurred more than 10 years before the current offense, evidence of that conviction is not admissible for impeachment purposes. Minn. R. Evid. 609(b). Here, although two of appellant's prior convictions occurred more than 10 years before this offense, his release from confinement for those convictions was within 10 years. Further, "a defendant's history of lawlessness and convictions enhances the probative value of even a stale conviction." Ihnot, 575 N.W.2d at 586 (citing United States v. Holmes, 822 F.2d 802, 804-05 (8th Cir. 1987)).

C. Similarity of Crimes

A similarity between a prior conviction and the present crime is a "key factor weighing against admission" for impeachment purposes. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984); see also Jones, 271 N.W.2d at 538 ("[T]he greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.").

Minnesota courts have, however, repeatedly affirmed impeachment by evidence of prior convictions that are similar to the charged offense. See, e.g., State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (trial court did not abuse discretion in admitting prior conviction for attempted second-degree murder in prosecution for first-degree murder); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (prior conviction for sexual assault; prosecution for first-degree criminal sexual conduct); Lloyd, 345 N.W.2d at 247 (prior conviction for second-degree murder; prosecution for first-degree murder); Brouillette, 286 N.W.2d at 708 (prior conviction and prosecution for criminal sexual conduct); State v. Schwab, 409 N.W.2d 876, 879 (Minn. App. 1987) (both for criminal sexual conduct). The similarity of appellant's prior assault convictions does not prohibit admitting those convictions for impeachment purposes.

D. Importance of Testimony

If the admission of prior convictions prevents a jury from hearing a defendant's version of events, this weighs against admission of these convictions. Gassler, 505 N.W.2d at 67. This factor is the crux of appellant's argument. But the presentation of a defendant's version by other witnesses supports a trial court's decision to admit the impeachment evidence. Id. Here, appellant's testimony at trial was important both for his self-defense claim and to counter the testimony of the victim and his two friends. But the admission of appellant's prior convictions did not prevent the jury from hearing evidence to support his claim of self-defense or his version of the facts. His witness testified that the victim, not appellant, instigated the confrontation and fight. In addition, the trial court gave a self-defense instruction, indicating to the jury that the state had the burden of proving appellant did not act in self-defense. Although this ruling may have inhibited appellant from testifying, it did not prevent the jury from hearing appellant's version of the facts and this factor does not prevent admission of appellant's prior convictions.

E. Credibility

Had appellant testified, his testimony would have directly contradicted the testimony provided by the victim and his two friends. The credibility of his testimony would, therefore, have been a significant issue. See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (if defendant's credibility is central issue, then need for impeachment evidence is greater). This weighs in favor of admission.

Based on the Jones factors, the district court did not abuse its discretion by ruling that appellant's prior convictions were admissible for impeachment purposes.

II. Prosecutorial Misconduct

In her closing argument, the prosecutor stated:

We don't know how the defendant felt. There is no testimony as to how the defendant felt.

* * * *

We don't know about the defendant. We don't know how often the defendant fights or what his disposition is.

Defense counsel did not object to these statements or seek a curative instruction from the court. But an appellate court can review the propriety of statements made by a prosecutor during closing arguments, even though the defendant failed to preserve the error. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).

The prosecutor's implied references to the fact that appellant did not testify might constitute misconduct. See State v. Williams, 363 N.W.2d 911, 913 (Minn. App. 1985) (prosecutor should not allude to appellant's failure to testify), review denied (Minn. May 1, 1985). An adverse comment on a defendant's failure to testify

is per se reversible error [1] when the comment is extensive, [2] when an inference of guilt from silence is stressed to the jury as a basis for conviction, and [3] when there is evidence that could have supported acquittal.

State v. Naylor, 474 N.W.2d 314, 321 (Minn. 1991) (amended opinion). Without these factors, however, the error may be harmless. Id.

Here, the comments were not extensive, comprising only four sentences in a 24-page transcript of the closing argument. They may have even been justified in the context of a self-defense claim. In addition, the district court instructed the jury that the burden of proving guilt was on the state, the defendant had no obligation to prove himself innocent, and the defendant had a privilege not to testify in his own defense. The court also cautioned the jury not to draw any inferences from the fact that the defendant did not testify. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (jury instructions relevant in determining whether jury was unduly influenced by improper comments).

Finally, although the prosecutor's indirect reference to the fact that appellant had not testified could be viewed as inappropriate, any error was harmless. Although appellant's witness offered evidence supporting his acquittal when he testified that appellant was attacked by the victim and one of his friends, this testimony was countered by the state's witnesses who testified that appellant was the aggressor in the fight. Further, there was no dispute that appellant was the person who stabbed the victim in the face and chest. There was also testimony that appellant was the only one of the five with a weapon.