This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2494

State of Minnesota,

Respondent,

vs.

James Wayne Frye,

Appellant.

Filed January 24, 2006

Affirmed

Dietzen, Judge

Hennepin County District Court

File Nos. 03066495; 03066005

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Theodore D. Sampsell-Jones, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Peterson, Judge.

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

DIETZEN, Judge

Appellant challenges his conviction of first-degree burglary, arguing that the district court erred in its evidentiary rulings admitting (a) evidence of appellant’s prior robbery convictions; (b) testimony that appellant may have violated a no-contact order by returning to the apartment building in question; and (c) hearsay testimony from the investigating officer about what he was told by others during his initial investigation. Because the district court did not err in its evidentiary rulings regarding appellant’s prior robbery convictions and the no-contact order; and the admission of the officer’s hearsay statements was harmless error, we affirm.

FACTS

Sarah Schema and her boyfriend lived on the 7th floor of an apartment building located in Hopkins, Minnesota. Lindsey Ryan lived in the apartment next door and shared a balcony with Schema. Ryan allowed appellant James Wayne Frye to stay at her apartment on occasion.

In September 2003, Ryan gave her apartment keys to appellant, and arranged for appellant to drive her to work and pick her up following her overnight shift. When appellant did not pick her up from work the next morning, she found another ride home and obtained another key from her landlord to enter her apartment. Upon gaining entrance to her apartment, Ryan discovered “some stuff laying around” that did not belong to her, that the screen door to the balcony was completely shut, and that a green folding chair had been placed up against a short patio wall separating the balcony between Ryan’s and Schema’s apartments.

That morning, police officers responded to a report of damage to a vehicle occurring at a grocery store parking lot. The responding officer arrived at the scene and observed appellant standing next to a car using a “slim-jim” type device to unlock the car door. Upon investigation, the officer discovered that the device being used by appellant was a car antenna broken off from a nearby vehicle. The officer arrested and searched appellant; and the officer discovered that appellant had possession of Schema’s driver’s license and checkbook. Responding to questions from the officer, appellant stated that he found the driver’s license and checkbook in the parking lot. The police then notified Schema what they had found in appellant’s possession and arranged to interview her.

At the same time, Schema’s boyfriend discovered that the front door to Schema’s apartment had been unlocked during the night. And Schema noticed that some items were missing from her apartment, including her purse and cell phone. After speaking with Schema, the police contacted Ryan at her apartment next door. Ryan pointed out items on her living room floor that were not hers, including a green purse, latex rubber gloves, a phone brochure, a dish towel, and a rose-colored bra. An officer also noticed a stone for a ring on the coffee table.

The police investigator showed these items to Schema, and she confirmed that the items belonged to her. Schema also noticed a ring that belonged to her, but the ring was missing the stone. The investigator returned to Ryan’s apartment and located the stone on Ryan’s coffee table. Schema identified the stone as that which went with the ring. Appellant was charged with one count of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a).

Prior to trial, the state sought to introduce evidence of appellant’s five prior robbery convictions from 1993 for the purpose of impeaching appellant’s testimony. Appellant’s convictions were for “simple” robberies committed without a firearm. Appellant was released for these crimes “at least a couple of years” after his conviction in 1993. The state argued that the convictions were necessary for the jury to determine the credibility of appellant, which it argued was central to the case. Appellant objected to the introduction of the prior convictions, arguing that the evidence unduly prejudiced appellant given their age and similarity to the present charge. The district court allowed the state to present evidence of three of the robbery convictions.

At trial, the police investigator was permitted to testify, over appellant’s hearsay objection, that Schema identified the items found in Ryan’s apartment that belonged to her. The state also asked the investigator about his conversation with Ryan. Over appellant’s hearsay objection, the investigator testified that Ryan identified some items on her living room floor that did not belong to her. The state later called Schema and Ryan to testify, and both witnesses confirmed the investigator’s earlier testimony as to what they had stated to him.

Appellant testified on direct examination that he pleaded guilty to three robberies, at which point the court instructed the jury that the evidence was for the jury’s consideration only in deciding whether appellant was telling the truth in this case, not as evidence of appellant’s character or conduct. Appellant admitted to possessing the stolen items, but testified that he found the items taken from Ms. Schema’s apartment in a downstairs hallway of the apartment building. Appellant testified that after he was arrested for the burglary, he returned to the apartment building and identified a roof access door in one of the stairwells. Appellant apparently wanted to demonstrate that there could have been another point of access to the victim’s seventh-floor patio apartment. Over appellant’s objection, the prosecutor was allowed to ask appellant if he was aware that he was subject to a no-contact order, which required that he stay at least one block away from the apartment building.

The jury found appellant guilty of first-degree burglary, and appellant was sentenced. This appeal follows.

D E C I S I O N

Appellant challenges three evidentiary rulings made by the district court. The evidentiary rulings of a district court lie within its sound judgment and will not be reversed absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). The appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced. Id. We address each ruling in turn.

First, appellant contends that the district court erred in allowing the state to impeach appellant with evidence of appellant’s three prior robbery convictions. A district court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).

Appellant argues that evidence of his prior robbery convictions should not have been admitted against him because it was unduly prejudicial. The state counters that the district court did not abuse its discretion in determining that the evidence’s probative value outweighed its potential for prejudice. Minn. R. Evid. 609 governs the admissibility of evidence of past convictions for the purpose of attacking the credibility of a witness. Evidence of past felony convictions is admissible if the court determines that the probative value of admitting such evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1). In balancing these factors, the district court must consider:

(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.

State v. Jones, 271 N.W.2d 534, 537–38 (Minn. 1978).

Appellant argues that each of the Jones factors weighs in favor of excluding the evidence of his past robbery convictions. First, citing to authority from foreign jurisdictions, appellant argues that the prior crimes evidence has little or no impeachment value. But the Minnesota Supreme Court has previously determined that prior crimes evidence can aid the jury in making credibility assessments, reasoning that it allows the jury to see the “whole person” and better judge the truth of witness testimony. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993); State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979); City of St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975). Appellant nonetheless argues that the “whole person” rationale is based on flawed reasoning and should be overruled. Because the supreme court has not issued any rulings that indicate any intent to overturn or limit the “whole person” rationale set forth most recently in Gassler, we see no reason to do so. 505 N.W.2d at 67. Consequently, we conclude that this factor weighs in favor of admitting the convictions.

Appellant argues that the second Jones factor, the age of the convictions, weighs in favor of excluding the evidence. Conviction evidence is not admissible “if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, . . .” Minn. R. Evid. 609(b) (emphasis added). Here, the record indicates appellant served “at least a couple of years” for his 1993 convictions. Thus, appellant’s release date was within 10 years of the time the district court made its evidentiary ruling and his conviction is not so stale as to make its prejudicial effect outweigh the probative value that it might have on his credibility. See State v. Yates, 392 N.W.2d 30, 32 (Minn. App. 1986)(affirming decision to admit nine-year-old conviction for impeachment purposes), review denied (Minn. Sept. 22, 1986).

Appellant argues that the similarity of the past robbery convictions to the burglary charge weighs in favor of excluding the evidence. Appellant points out that “burglary is an acquisitive crime, similar in nature to theft.” State v. Mitchell, 687 N.W.2d 393, 398 (Minn. App. 2004) (ruling similarity of past burglary weighs against admission but holding that the district court did not abuse its discretion in admitting evidence of a prior burglary in first-degree burglary trial), review denied (Minn. Dec. 13, 2005). The state counters that the prior convictions were not substantially similar to the present charge of burglary because the convictions were for robbery, which are face-to-face theft crimes against persons, whereas burglary may involve the taking of property from an empty building. State v. Dye, 371 N.W.2d 47, 51 (Minn. App. 1985) (ruling that the district court did not abuse its discretion in admitting evidence of a prior robbery in first-degree burglary trial), review denied (Minn. Aug. 29, 1985). Both parties’ arguments have merit. Therefore, we conclude that the third factor neither weighs for or against admission.

Appellant argues that the fourth and fifth factors, the importance and centrality of the defendant’s testimony, weigh against admitting the prior convictions. “If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.” State v. Swanson, ___ N.W.2d ___, ___, 2006 WL 45255, at *__ (Minn. Jan. 10, 2006). Here, appellant’s credibility was central to the case because his defense was predicated on his claim that he found the missing items and did not burglarize Schema’s apartment. Therefore, these factors weigh strongly in favor of the district court’s decision to admit evidence of appellant’s past robbery convictions. In balancing the Jones factors, at least three of the factors, i.e., the “whole person” impeachment rule, the importance of appellant’s testimony, and the centrality of the credibility issue weigh in favor of admissibility on this record. Thus, we conclude that the district court did not abuse its discretion in admitting the past robbery convictions.

II.

Appellant argues that the district court erroneously allowed the prosecution to question appellant about his knowledge of the no-contact order prohibiting him from entering the apartment building where the items were taken. Appellant argues that this evidence was not properly admitted because it is evidence of another crime, i.e., that he violated the no-contact order issued after his release from custody for the burglary offense which is the subject of this appeal. Such evidence, appellant argues, is so-called Spriegl evidence subject to a rule 404(b) analysis. Minn. R. Evid. 404(b) (“Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.”); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (Minn. 1965).

But even assuming that the state’s question regarding appellant’s violation of the no-contact order was evidence of a bad act prohibited by rule 404(b), any such error was harmless. Because any such error was not of constitutional dimension, we ask whether the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). In applying this standard, we must examine the error “and its impact . . . within the context of the record as a whole,” including the strength of the state’s evidence and the weakness of any defense evidence.” State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).

Here, the circumstantial evidence was overwhelming against appellant. Schema’s driver’s license and checkbook were found on appellant when he was arrested in the parking lot, and appellant was staying next door and had the only other key to Ryan’s apartment while Ryan was at work. Under these facts, the erroneous introduction of evidence that appellant violated the no-contact order did not unduly prejudiced appellant.

III.

Appellant contends that the district court erred by admitting hearsay statements made to the police. The district court allowed, over the defense counsel’s hearsay objections, the investigating officer to testify about what Schema and Ryan told him during his initial investigation. Appellant argues that the statements are inadmissible hearsay and that no exception applies that could have justified admitting the statements. Respondent counters that the statements were not hearsay because they were prior consistent statements of the witnesses.

Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally inadmissible, subject to certain exceptions. Minn. R. Evid. 801(c), 802, 803, 804. But an out-of-court statement is not hearsay and is admissible as substantive evidence if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.” Minn. R. Evid. 801(d)(1)(B); State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997). Before such statements can be admitted, the declarant’s credibility must have been challenged. State v. Manley, 664 N.W.2d 275, 288 (Minn. 2003); Nunn, 561 N.W.2d at 909. The rule anticipates that the witness testifies beforethe district court determines whether to admit the prior statement. See Minn. R. Evid. 801(d)(1) 1989 comm. cmt. (stating that “when a witness’ prior statement contains assertions about events that have not been described by the witness in trial testimony, those assertions are not helpful in supporting the credibility of the witness and are not admissible under [the] rule.”).

Here, when the investigator testified, the credibility of Schema and Ryan had not yet been challenged. Indeed, the investigator’s testimony preceded that of Schema and Ryan. Therefore, the investigator’s testimony constituted hearsay, and the district court abused its discretion in overruling appellant’s hearsay objections.

But we conclude this error was harmless because it did not significantly affect the verdict. Post, 512 N.W.2d at 102 n.2. Here, the investigator’s hearsay testimony did not significantly affect the jury’s verdict. The investigator’s hearsay testimony was later confirmed through the testimony of Ryan and Schema. And the defense did attempt to impeach Ryan and Schema’s credibility by questioning their memories of the incident. Therefore, we conclude that the district court’s admission of hearsay testimony was harmless error.

Affirmed.