This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-1120

State of Minnesota,

Respondent,

vs.

Michael Jerome Buckanaga,

Appellant.

Filed May 4, 1999

Affirmed

Lansing, Judge

Becker County District Court

File No. K7971160

Mike Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Joseph A. Evans, Becker County Attorney, P. O. Box 743, Detroit Lakes, MN 56502 (for respondent)

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

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

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

LANSING, Judge

A jury found Michael Buckanaga guilty of assault in the third degree. Buckanaga appeals his conviction, challenging the district court's decision to admit four prior felony convictions to impeach his testimony. We affirm.

FACTS

A Becker County jury convicted Michael Buckanaga of third degree assault for beating George Libby, Jr., in a confrontation over a debt. Before trial, the state informed Buckanaga that if he chose to testify, it intended to impeach him with his prior felony convictions. The convictions included a 1980 burglary, a 1981 burglary, a 1990 third-degree criminal sexual conduct, and a 1993 attempted third degree assault. Buckanaga objected, arguing the two burglary convictions were stale, the prejudicial value of the criminal sexual conduct conviction outweighed its probative value, and the attempted assault conviction was prejudicial because of its similarity to the charged crime. The district court ruled all four convictions admissible for impeachment.

At trial, Buckanaga testified that not he, but a man who had accompanied him, had assaulted Libby. To impeach his testimony, the state introduced into evidence the four prior convictions. Buckanaga asserts the district court abused its discretion by allowing the state to introduce the prior convictions.

D E C I S I O N

The admission of prior convictions for impeachment purposes is governed by Minn. R. Evid. 609, which provides that prior felony convictions may be admitted for impeachment if the probative value of the prior conviction outweighs its prejudicial effect. Minn. R. Evid. 609(a). The district court's evidentiary ruling applying rule 609 must be sustained unless the ruling was a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998); State v. Hofmann, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

Whether the probative value of a prior conviction outweighs its prejudicial effect is measured by (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 prior crime and the charged crime (the greater the similarity, the greater the reason to not permit use of the prior crime to impeach), (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue. Ihnot, 575 N.W.2d at 586 (reaffirming the use of the factors established in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). We first consider Buckanaga's criminal sexual conduct and assault convictions and then address his burglary convictions.

Criminal Sexual Conduct and Assault Convictions

Impeachment by prior crime allows the jury to see the whole person and aids its judgment of the person's testimony. Ihnot, 575 N.W.2d at 586. Buckanaga argues the impeachment value of his prior convictions was minimal, especially because burglary does not involve testimonial dishonesty. But even if a prior conviction does not involve testimonial dishonesty, that "does not mean it has no impeachment value." State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citation omitted); see State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992) (burglary conviction may be admitted for impeachment under rule 609(a)(1)). Evidence of a prior conviction is probative of credibility and truthfulness. State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979). The probative value of Buckanaga's prior convictions favors admitting the convictions.

The older a conviction, the less probative value it has as to a defendant's truthfulness. Indeed, rule 609(b) generally bars the use of prior convictions over ten years old. Minn. R. Evid. 609(b). Buckanaga's criminal sexual conduct and assault convictions were eight years and five years old, respectively, at the time of the trial. Buckanaga does not assert these convictions are stale, and their probative value favors their admission.

If a defendant's prior conviction is similar to the charged crime, this similarity weighs against admitting the prior conviction for impeachment purposes. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984). Buckanaga's 1993 conviction is the same as his charged crime. But "a cautionary instruction directing the jury to consider the prior conviction only for impeachment purposes" restricts the prejudice resulting from such an admission. Id. at 247. The court gave the jury a cautionary instruction that Buckanaga's prior convictions should be considered only for impeachment value, minimizing any improper prejudicial effect of the prior convictions. Thus, although the identical nature of the offenses weighs against the admission of the 1993 conviction, the cautionary instruction minimizes the prejudicial weight of this factor. See Gassler, 505 N.W.2d at 67 (court did not err in admitting prior conviction for attempted second degree murder in prosecution for first degree murder); Brouillette, 286 N.W.2d at 707-08 (court did not err in admitting prior conviction for criminal sexual conduct in prosecution for criminal sexual conduct).

If the admission of prior convictions prevents a jury from hearing a defendant's version of events, this weighs against the admission of the prior convictions. Gassler, 505 N.W.2d at 67. Buckanaga testified in his own defense. Thus, this factor weighs in favor of admitting Buckanaga's prior convictions.

The centrality of the defendant's credibility is the final factor. The more central a defendant's credibility is to the case, the more important it is the state be allowed to use impeachment evidence. See State v. Gassler, 505 N.W.2d at 67. A stronger case for admitting prior convictions occurs when the jury must choose between the defendant's credibility and the testimony of one other person. Ihnot, 575 N.W.2d at 587. The court's decision to admit Buckanaga's prior convictions for impeachment was based on its belief that credibility was going to be a major issue in the trial. The state presented four witnesses whose testimony supported the state's version of events. Buckanaga presented his own testimony and the testimony of two other witnesses that supported his version of events. Buckanaga and the state both used prior convictions to impeach witnesses. The comparative strength of the competing versions of events made Buckanaga's credibility a significant issue, and therefore this factor favors admitting his prior convictions.

Although Buckanaga's prior conviction for third degree assault is identical to his charged offense, the court limited its prejudice by giving the jury a cautionary instruction. The other factors favor the admission of Buckanaga's criminal sexual conduct and assault convictions. The district court did not abuse its discretion in admitting these convictions to impeach Buckanaga.

Burglary Convictions

Generally, prior convictions over ten years old are not admissible for impeachment. Minn. R. Evid. 609(b). Buckanaga asserts the court erred in admitting his 1980 and 1981 burglary convictions because both are over ten years old. The court found the 1981 conviction came within the ten-year period based on the ten-year probationary period Buckanaga received as part of his sentence. The court made this finding a month before the supreme court issued its opinion in Ihnot, which explicitly stated that probationary periods do not toll the ten-year period. See 575 N.W.2d at 584 n.2.

The ten-year limit is not an impermeable barrier. If a prior conviction is over ten years old, it may be admitted for impeachment if it retains probative value. Minn. R. Evid. 609(b) (allowing use for impeachment if 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"). While the court found the 1980 conviction went to the probative value of Buckanaga's veracity, it failed to find that the probative value of the convictions outweighed their prejudicial effect. Therefore, the court erred in admitting these convictions to impeach Buckanaga.

Although the court erred in admitting the 1980 and 1981 burglary convictions for impeachment, the error does not require reversal if the error was harmless. Harmless-error analysis requires this court to examine "whether the error reasonably could have impacted upon the jury's decision." State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). Factors in this analysis include (1) the strength of the evidence of the defendant's guilt, (2) whether the defendant testified, (3) the testimony of other witnesses, and (4) whether the jury knew through other testimony that the defendant had been involved in prior incidents. State v. Leecy, 294 N.W.2d 280, 282 (1980).

The evidence of Buckanaga's guilt was strong, and the court's ruling did not keep Buckanaga from testifying in his own defense. Buckanaga's testimony was contrary to four witnesses presented by the state whose testimony supported the state's version of events. Unlike the circumstances in Leecy, the jury did not know about the defendant's prior incidents from other testimony. But an additional consideration, not present in Leecy, is that Buckanaga's two other prior convictions were properly admitted. See Ramon v. State, 399 N.W.2d 138, 141 (Minn. App. 1987). In light of the evidence and the admissibility of the other two prior convictions, we conclude, as in Ramon, that it is not reasonable to believe the error had an impact on the jury's decision.

Affirmed.