may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Leland Perdue,
Filed June 1, 1999
Blue Earth County District Court
File No. K798281
Ross Arneson, Blue Earth County Attorney, P. O. Box 3129, Mankato, MN 56002 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
In an appeal from conviction, Scott Perdue challenges the district court's ruling that 12 of his prior felony convictions would be admissible to impeach him if he chose to testify. The ruling was within the district court's discretion, and we affirm.
A jury convicted Scott Perdue of theft by swindle, theft by false representation, and aiding and abetting theft by check in the purchase of several vehicles through checks written on a closed account. The convictions were based on testimony that Perdue and his girlfriend went to a series of automobile dealerships, negotiated the purchase of used vehicles, arranged for the vehicles to be titled in Perdue's name, and then paid for the vehicles by Perdue's girlfriend writing a check to be drawn from her account. The account was closed when she wrote the checks, and the checks were dishonored when presented for payment.
During the trial on the three charges, Perdue made a motion to prohibit the prosecution from introducing evidence of his prior felony convictions to impeach him if he chose to testify. The court denied the motion. Following conviction, Perdue brought this appeal, contending that the district court's ruling was an abuse of discretion that unfairly prejudiced his defense and requires a new trial.
Evidentiary rulings generally rest within the district court's discretion and will not be reversed absent an abuse of that discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Admission of evidence of convictions to impeach an individual 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).
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)).
Perdue's prior convictions are for defeating security on personalty (1989), second-degree burglary (one conviction in 1989 and one conviction in 1992), third-degree burglary (two convictions in 1989 and four convictions in 1992), aiding and abetting burglary (1992), second-degree arson (1992), and attempted escape (1989). All of the prior convictions occurred less than ten years before the current offenses. See Minn. R. Evid. 609(b).
Evidence of prior convictions may be relevant to issues of credibility and truthfulness. State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979). Even though all of the prior convictions do not involve testimonial dishonesty, they still have potential impeachment value. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993); see State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992) (burglary conviction may be admitted for impeachment under rule 609(a)(1)). None of Perdue's prior convictions are similar to his charged crimes, a point Perdue concedes. See State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (similarity weighs against admitting prior crimes for impeachment).
If the admissibility of prior convictions prevents a jury from hearing a defendant's version of events, this weighs against their admission. Gassler, 505 N.W.2d at 67. To determine the importance of the defendant's testimony, courts examine the other evidence available to support the defendant's version of events. State v. Kissner, 541 N.W.2d 317, 324 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). If another witness presents the defendant's version of events, the defendant's decision to not testify is not necessarily prejudicial. Gassler, 505 N.W.2d at 67. This is especially the case if the defendant does not make an offer of proof that he would have presented additional testimony. Id.
Although Perdue chose not to testify, his girlfriend testified that Perdue did not know the account was closed and that he had only been attempting to help her find reliable transportation. Other witnesses provided testimony that supported Perdue's version of events. Perdue made no offer of proof that he would have provided additional or different testimony. Thus, although Perdue's decision against testifying weighs in favor of excluding the prior convictions, the weight of this factor is minimized by the alternative sources for his account of the events.
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 main distinction between the state's and Perdue's versions of events was whether Perdue knew Owen's checking account was closed when she wrote the checks for the vehicles. Perdue's credibility would have been a central issue for the jury.
Perdue's prior 12 convictions are probative of his credibility, within the ten-year period, dissimilar from his charged crimes, and his credibility was a central issue. The court did not abuse its discretion in ruling that it would admit the prior convictions if Perdue chose to testify.