This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-11

 

State of Minnesota,

Respondent,

 

vs.

 

Kenneth Lee Budreau,

Appellant.

 

Filed November 19, 2002

Affirmed

Harten, Judge

 

St. Louis County District Court

File No. K5-01-600407

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Catherine M. Powell, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Alan Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges his convictions of first-degree burglary, terroristic threats, interference with an emergency call, and fifth degree assault, arguing that the district court erred in ruling that his prior burglary convictions were admissible for impeachment purposes and in failing to give a cautionary jury instruction.  He also argues that there was insufficient evidence for the jury to convict him of first-degree burglary.  Because we conclude that the district court did not abuse its discretion and that the evidence was sufficient for the jurors to reach their verdict, we affirm.

FACTS

            Appellant Kenneth Budreau and Alberta Martin were involved in a romantic relationship from September 2000 to April 2001.  Martin testified that, although appellant stayed at her home “on his days off,” he did not live with her and never paid her rent or utility bills.

When appellant became abusive, Martin attempted to end the relationship.  She repeatedly told appellant to leave her home, but he refused.  By mid-April 2001, appellant had stayed at Martin’s home for at least two consecutive weeks.  Appellant finally left Martin’s home on 16 April after he hit her in the eye during an argument.  Martin reported the incident to the police and obtained an order for protection (OFP) against appellant later that day; the OFP, however, was never served on appellant.

Appellant returned to Martin’s home on 20 April and entered it without knocking.  Martin testified that she “told him he had to leave; I had a restraining order out on him and he had to go.”  She called 911, but appellant took the phone away from her before she could speak to the operator.  The operator returned the call, and Martin said, “I got some guy in here and I got a restraining order out on him, * * * [a]nd he won’t leave.”  Appellant then grabbed Martin, dragged her away from the phone, and threatened her with a knife.  The police arrived and arrested appellant.

            Appellant elected to testify at his trial.  For impeachment purposes, the district court allowed the state to introduce three prior convictions: two for felony burglary in 1995 and one for making a false statement in connection with the purchase of a firearm in 1998.  The jury found appellant guilty of first-degree burglary, terroristic threats, interference with an emergency call, and fifth-degree assault.

Appellant challenges these convictions, arguing that the district court erred when it ruled that his prior burglary convictions were admissible for impeachment purposes and when it failed to give the jury a cautionary instruction about the prior convictions.  He also argues that there was insufficient evidence to support his conviction of first-degree burglary because he had lawful possession of Martin’s home at the time of the incident.

D E C I S I O N

1.         Prior Convictions

            A district court’s ruling on the impeachment of a witness by prior conviction is an evidentiary ruling, reviewed under a clear abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Minn. R. Evid. 609(a) provides that evidence of a prior conviction may be admissible for impeachment purposes if the offense was punishable by imprisonment in excess of one year, and the probative value of admitting the evidence outweighs its prejudicial effect.  Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  When making this determination, courts consider the following 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 (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

 

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).[1]

Appellant challenges only the admission of his prior burglary convictions.  He does not dispute that the second Jones factor is satisfied, but he challenges the other four.

            First, appellant argues that his prior convictions were not useful for impeachment purposes.  Impeachment by prior conviction aids the jury by allowing it to see the “whole person” and better judge the truth of that person’s testimony.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citation omitted).  Even though a prior crime does not involve dishonesty, it is still probative of credibility and truthfulness.  State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979).  Evidence of two felony burglary convictions could have assisted the jury in weighing appellant’s credibility.

            Next, appellant argues that the similarity between his prior convictions and the charged offense rendered the impeachment evidence prejudicial.  Minnesota courts, however, “have been liberal in admitting prior convictions for impeachment even when the prior crime is the same as the crime charged.”  State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986) (citations omitted).  Moreover, any prejudicial effect of appellant’s prior burglary convictions was minimal because the facts underlying his convictions were not put into evidence.  See State v. Vanhouse, 634 N.W.2d 715, 720 (Minn. App. 2001) (stating that prejudicial effect was minimal when facts underlying prior conviction not put in evidence and district court did not admit certified copy of conviction), review denied (Minn. 11 Dec. 2001).

            Finally, the fourth and fifth Jones factors favor admitting appellant’s prior convictions.  If admitting prior convictions prevents a jury from hearing a defendant’s version of the events, it weighs against admitting the convictions.  Gassler, 505 N.W.2d at 67.  Here, the jury heard appellant’s version of the events when he testified.  Moreover, impeachment evidence becomes more important when a defendant’s credibility is central to the case.  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  As appellant admits, “[t]he entire defense consisted of [his] alternate version of the incident.”  The centrality of appellant’s credibility in this case favors the admission of his prior convictions.

We conclude that the district court properly exercised its discretion in ruling that appellant’s prior convictions were admissible for impeachment purposes.

   2.      Cautionary Instruction

Appellant argues that the district court should have cautioned the jury that evidence of his prior convictions went only to his credibility and could not be used as substantive evidence of guilt.  The failure to give such an instruction, however, is not reversible error if the instruction was not requested.  State v. Amos, 347 N.W.2d 498, 503 (Minn. 1984).  Appellant did not request a cautionary instruction.

3.         Sufficiency of the Evidence

            In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore,438 N.W.2d 101, 108 (Minn. 1989).

            Appellant contends that there was insufficient evidence to sustain his conviction of first-degree burglary because he did not enter a building without consent, one element of the crime.  See Minn. Stat. § 609.582, subd. 1(c) (2000).  For purposes of this statute,

“Enters a building without consent” means:

(a)       to enter a building without consent of the person in lawful possession; * * * or

(c)       to remain within a building without the consent of the person in lawful possession.

 

Minn. Stat. § 609.581, subd. 4 (2000).

            Appellant’s rationale is that the state failed to prove that he was not in lawful possession of Martin’s home.  Martin testified, however, that appellant did not live with her, that he did not pay her rent or utility bills, and that she repeatedly told him to leave her home.  We must assume that the jury believed Martin’s testimony and did not believe the contrary testimony given by appellant.  See Moore,438 N.W.2d at 108.  Viewing the evidence in the light most favorable to appellant’s conviction, we conclude that the jury could reasonably have found that he was not in lawful possession of Martin’s home.

            Affirmed.