STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1497

State of Minnesota,

Respondent

vs.

Dean Peter Alexander,

Appellant.

Filed April 25, 2000

Affirmed

Anderson, Judge

Hennepin County District Court

File No. 99017933

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Anderson, Presiding Judge, Schumaker, Judge, and Peterson, Judge.

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

ANDERSON, Judge

Appellant Dean Peter Alexander, convicted by a jury of fifth-degree assault, appeals the admission of two prior felony convictions as impeachment evidence. By pro se supplemental brief, appellant alleges ineffective assistance of counsel, and claims that the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt. We affirm.

FACTS

In May, 1998, appellant moved to the north Minneapolis home of his girlfriend, R.B. Both characterized their relationship as “strained,” and arguments escalated into physical violence. Sometimes appellant initiated the fights, but other times R.B. started them. R.B. frequently called the police for assistance.

A January 27, 1999, argument gave rise to the assault that is the subject of this case. R.B. testified that both she and appellant were talking in her house, when appellant learned she hired another man to shovel snow. Appellant became angry about the price of the man’s labor. Without warning, appellant punched her in the face. R.B. ran outside but at some point called 911. When police officers arrived they saw blood in the snow outside the house. R.B., waiting in the dining room, had blood on her face. Officers found appellant sitting at the kitchen table, intoxicated. After listening to R.B.’s version of events, the officers arrested appellant.

The state charged appellant with one count of fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 4(b) (1998). The district court ordered three of appellant’s eleven prior felony convictions admissible for impeachment purposes: an October, 1988, simple robbery conviction (discharged October 31, 1992), a May, 1998, false information to a police officer conviction, and a July, 1998, second-degree assault conviction. At trial, appellant admitted that he hit R.B., but claimed that he acted in self-defense after R.B. spit at and hit him. The jury found appellant guilty.

D E C I S I O N

I.

Appellant argues that the district court committed reversible error by admitting his 1988 simple robbery and 1998 second-degree assault convictions as impeachment evidence. We will not reverse a district court’s rulings on the use of prior convictions for impeachment absent a clear abuse of discretion. State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984).

Minn. R. Evid. 609 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). An assessment of five factors determines whether the probative value of a prior crime outweighs its prejudicial effect: (1) the impeachment value of the prior crime; (2) the date of the conviction and any subsequent conduct; (3) the similarity of the prior crime to the present charge (a greater similarity weighs against admission); (4) the importance of the defendant’s testimony, and (5) the importance of the credibility issue. State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (reaffirming the factors established in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).

Appellant first argues that the district court abused its discretion by admitting his 1988 simple robbery conviction because, he claims, the crime was too remote to have any bearing on his credibility. The sentence for appellant’s 1988 simple robbery conviction ended in October, 1992. In support of its ruling, the district court reasoned that appellant’s discharge from that crime did not occur “so long ago as to unduly prejudice” the jury, and admitting evidence of the conviction allowed the jury to see appellant as a “whole” person. We agree.

The simple robbery conviction had bearing on appellant’s credibility. A prior offense need not directly relate to credibility in order to be admissible for impeachment purposes. State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979). A conviction itself may be valuable as impeachment evidence if it allows the jury to see the witness as a whole person and aids its judgment of the witness’ testimony. See Ihnot, 575 N.W.2d at 586.

Appellant elected to testify, thereby placing the jury in a position to choose between his credibility and that of R.B., as R.B. and appellant alone “witnessed” the assault. The importance of appellant’s credibility warranted the admission of appellant’s simple robbery conviction. See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (explaining that when the jury must choose to believe one of two people, the need for impeachment evidence is greater).

Moreover, the utility of the simple robbery conviction for impeachment purposes did not erode with the passage of time. Generally, prior convictions more than ten years old are not admissible for impeachment. Minn. R. Evid. 609(b). But confinement, including a probationary period, effectively extends the end date of a prior conviction. See id.; Ihnot, 575 N.W.2d at 585. And, a defendant’s history of lawlessness enhances the probative value of even a stale conviction. Ihnot, 575 N.W.2d at 586. Appellant’s 1992 release from confinement for the simple robbery conviction fell well within ten years of the this crime. His extensive criminal history supported the probative value of the 1988 simple robbery conviction. The district court did not clearly abuse its discretion by admitting it as impeachment evidence.

Appellant next argues that the similarity of his 1998 second-degree assault conviction to this crime created a danger that the jury would use the conviction as substantive, and not impeachment, evidence. We agree with the district court that its cautionary instruction served to counter any prejudicial effect.

If a defendant's prior conviction is similar to the charged crime, the similarity weighs against admitting the prior conviction for impeachment purposes. Lloyd, 345 N.W.2d at 247. Appellant’s 1998 second-degree assault conviction is, naturally, similar to the charged crime of fifth-degree assault. 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.

The district court cautioned the jury that appellant’s prior convictions should be considered only for impeachment value. Although the similar nature of the offenses weighs against the admission of the 1998 conviction, the cautionary instruction countered the prejudicial effect, if any, of admission of this evidence. Cf. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (concluding that the district court did not abuse its discretion by admitting a prior conviction for attempted second degree murder in a prosecution for first degree murder); Brouillette, 286 N.W.2d at 707-08 (deciding that admitting a prior conviction for criminal sexual conduct in a prosecution for criminal sexual conduct was not an abuse of discretion). Under these circumstances, the district court did not clearly abuse its discretion by admitting the 1998 conviction for second-degree assault for impeachment.

II.

Appellant, by pro se supplemental brief, alleges ineffective assistance of counsel and challenges the sufficiency of the evidence. A careful review of the record and the relevant law shows that both of these claims lack merit.

Appellant first claims that his attorney failed to call witnesses who, although not witnessing the events germane to this case, would have testified favorably on his behalf. When reviewing an ineffective-assistance-of-counsel claim, we presume that an attorney’s performance “falls within the wide range of reasonable professional assistance." State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Appellant has the burden of proving that his attorney's representation "fell below an objective standard of reasonableness, and that, but for the attorney's errors, the result would have been different." Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998). Choosing witnesses was a matter of trial strategy that was within the discretion of appellant’s attorney. See State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990). Appellant has not met his burden of proving that his attorney erred, let alone shown that but for the errors, the result of appellant’s trial would have been different.

Finally, we turn to appellant’s claim that the evidence was insufficient to support the jury’s verdict. We review the evidence to determine whether, in light of the inferences that can be drawn from the evidence, the jury could reasonably have found appellant guilty beyond a reasonable doubt. See State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997). The state was required to prove that appellant acted with intent to cause fear in R.B. of immediate bodily harm or death, or intentionally inflicted or attempted to inflict bodily harm on R.B. See Minn. Stat. § 609.224, subd. 4(b) (1998).

R.B. testified that appellant became angry and hit her. The police testimony and the recorded 911 call corroborated her story. Appellant admitted that he hit R.B., but claimed to have done so in self-defense. The jury, as it was entitled to do, apparently believed R.B. and disbelieved appellant. See Bliss, 457 N.W.2d at 390 (explaining that the jury determines the weight and credibility of witness testimony). We conclude that the evidence was sufficient for the jury to find appellant guilty of fifth-degree assault beyond a reasonable doubt.

Affirmed.