This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Herman NMN Page,


Filed January 28, 1997


Foley, Judge


St. Louis County District Court

File No. K6-95-600700

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Cedar Street, St. Paul, MN 55101; Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, No. 501, Duluth, MN 55802 (for Respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Harten, Judge, and Foley, Judge.


FOLEY, Judge

Appellant Herman Page challenges his conviction of third-degree criminal sexual conduct, alleging that the trial court improperly admitted evidence of prior crimes. Appellant also alleges pro se that he was denied effective assistance of counsel, that the trial court improperly failed to require the victim to undergo a psychiatric examination, and that the verdict was motivated by racial bias. We affirm.[1]


The 16-year-old victim, described as a "painfully shy" girl, was particularly vulnerable due to depression and emotional problems. Appellant, a 39-year-old man, preyed on her vulnerability. The morning of the offense the victim left her home to run errands. While at the St. Vincent DePaul store, the victim encountered appellant, who was there with his friend and his friend's family. Appellant commented to his friend that the victim looked "good" and that he was going to "kick it" (speak) with her. Appellant then struck up a conversation with the victim and showered her with flattering remarks. The victim, believing that appellant was friendly, gave him her telephone number.

Later that day, appellant telephoned the victim from his friend's house. Because of loud music in the background, appellant told the victim that he would call her back from a nearby gas station. After speaking on the telephone for a period of time, appellant asked the victim if he could visit her at her home. The victim agreed but purposely gave him the incorrect address. By the time she had hung up the telephone, however, she felt guilty about deceiving him and ran out to intercept him. After the victim intercepted appellant on the street, the two of them walked back to her house together. The victim claims that appellant forcefully raped her on her mother's bed. Appellant, however, claims that they had consensual intercourse. Immediately after the incident, appellant left the house and the victim called her therapist to inform him that she had just been raped. Her therapist advised her to call the police, which she did immediately. By the time the police arrived, the victim was crying hysterically.

An examining doctor found slight bruising to the victim's vagina and concluded that her condition was consistent with forced intercourse, but also consistent with consensual intercourse. After appellant had been apprehended by police, he made several conflicting statements before finally admitting that he had intercourse with the victim. During trial, the state introduced impeachment evidence indicating that appellant previously had been convicted of aggravated robbery and theft. Although appellant's legal custody ended more than 10 years before the date of his testimony, his "confinement" allegedly ended more than 10 years before he testified. As such, appellant claims that introduction of the aggravated robbery conviction for impeachment purposes violated Minn. R. Evid. 609(b) and that the introduction of both the aggravated robbery conviction and the theft conviction did not meet the standard for admissibility required by State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). Appellant also claims in his pro se supplemental brief that he was denied effective assistance of counsel, that the trial court erred in not requiring the victim to undergo psychiatric examination, and that the jury's verdict was motivated by racial bias.


I. Admissibility of Prior Convictions

Whether to admit or exclude evidence rests within the broad discretion of the trial court and will not be reversed absent an erroneous view of the law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). The party alleging an improper evidentiary ruling is not entitled to a new trial without showing prejudicial error. Id. The trial court permitted the state to introduce evidence that appellant had been convicted of aggravated robbery in 1983 and theft in 1995 for the purpose of impeachment.

Appellant first claims that the trial court's admission of evidence of the aggravated robbery offense was improper on the basis that he was allegedly "released from confinement" more than ten years before he testified in the present case. Evidence of prior felony convictions for the purpose of impeachment are ordinarily inadmissible where the witness had been released from confinement more than ten years before trial. Minn. R. Evid. 609(b). The trial court may admit such evidence, however, where it finds that the probative value of the evidence substantially outweighs the prejudicial impact of having it admitted. Id. According to the record, the trial court found that both convictions satisfied the time limits of Rule 609(b) and that both convictions had probative value. Furthermore, appellant's attorney did not object to the admission of the aggravated robbery conviction on the basis that it was time-barred, raising the issue for the first time on appeal.

Although the trial court found that the probative value of the evidence outweighed its prejudicial impact, appellant points to State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (listing factors) for the proposition that the trial court erred in its finding. Nevertheless, most of the Jones factors weigh in favor of the admissibility of the evidence. Under the circumstances, the trial court did not abuse its discretion in admitting evidence of the prior felony offenses. Finally, an overview of the evidence and transcript indicates that any error on the part of the trial court was harmless. A party alleging an improper evidentiary ruling is not entitled to a new trial absent that party's ability to demonstrate prejudicial error. Uselman, 464 N.W.2d at 138.

II. Ineffective Assistance of Counsel

To succeed on a claim of ineffective assistance of counsel, appellant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

All of appellant's claims of ineffective assistance of counsel are based on questions of trial tactics. Whether to attack a victim's mental state and what specific questions to ask on cross-examination are questions of trial tactics. Weaver v. State, 408 N.W.2d 200, 202 (Minn. App. 1987) (questions on cross examination), review denied (Minn. Aug. 12, 1987); State v. Danielski, 374 N.W.2d 322, 324 (Minn. App. 1985) (whether to raise issue of mental state), review denied (Minn. Dec. 13, 1985). Appellant's attorney was in the best position to evaluate proper trial tactics, and may have chosen not to attack the victim's character so as not to inflame the jury. There is no indication that trial counsel's representation fell below an objective level of reasonableness. Based on the totality of the evidence presented by the state, there is no indication that but for defense counsel's choice of tactics the result would have been any different.

III. Victim Psychiatric Examination

Appellant claims that the trial court erred by failing to order an examination of the victim sua sponte to determine whether her depression or other psychological problems could have caused her to be incompetent to testify. Minn. Stat. § 595.02 (1996) does not require the trial court to submit the victim to a psychiatric examination. Whether a witness is competent to testify is a matter for the trial court's discretion. State v. Johnson, 256 N.W.2d 280, 286 (Minn. 1977) (citation omitted). Furthermore, the trial court has discretion to order adverse psychological examinations in criminal cases, but the discretion should be used "judiciously and in a balanced way." State v. Elvin, 481 N.W.2d 571, 574 (Minn. App. 1992) (examination of a victim), review denied (Minn. Apr. 29, 1992). There is nothing to indicate that the trial court abused its discretion by failing to order the victim to undergo a psychiatric examination. Indeed, the jury had an opportunity to consider the victim's emotional and psychological problems and properly take them into consideration.

IV. Racial Bias

Finally, appellant alleges that the jury's verdict was racially biased due to the fact that he is a 39-year-old black man and the victim was a 16-year-old white girl. In alleging jury misconduct, however, appellant fails to point to any specific instances of juror misconduct, instead relying on a blanket assertion that the jury was racist.

In an appeal based on juror bias, an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant.

State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Here, appellant has done none of the above. Furthermore, the trial court is in the best position to determine whether jurors can be impartial. State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). The trial court in the present case made no findings bearing on the jury's partiality. A blanket assertion that the jury was racially biased, without any objective indication that it was, is insufficient as a matter of law.

Affirmed. Motion to strike granted.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1The motion of the state to strike certain portions of appellant's pro se supplemental brief and appendix is granted. The items referred to in the motion play no part in the consideration or decision of this case.