A04-1404

State of Minnesota,

Respondent,

vs.

Burton Frank Benner,

Appellant.

Filed April 4, 2006

Affirmed in part, reversed in part, and remanded

Hudson, Judge

St. Louis County District Court

File No. KX-03-101882

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

Alan L. Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, 300 South Fifth Avenue, Room 222, Virginia, Minnesota 55792 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

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

HUDSON, Judge

On appeal from his 2004 conviction and sentence for aiding and abetting aggravated robbery and an order denying a postconviction petition challenging the conviction, appellant argues that the postconviction court erred in (1) denying appellant’s due-process claim that the prosecutor failed to disclose the victim’s 1996 conviction for first-degree criminal sexual conduct; and (2) denying his right to a jury trial by imposing an upward durational departure based on a judicial finding that the victim was particularly vulnerable. We affirm appellant’s conviction, but we reverse appellant’s sentence and remand for resentencing.

FACTS

On October 1, 2003, officers arrested appellant Burton Benner and his brother Aaron Benner after Brent Galindo reported that the two men assaulted and robbed him. The state charged appellant with one count of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of simple robbery in violation of Minn. Stat. § 609.24 (2002). The matter went to trial in April 2004.

Galindo testified for the state, describing the events of October 1 and his attackers. The jury found appellant guilty of both counts. Appellant’s presumptive sentence was 98 months for the aggravated-robbery conviction. The district court sentenced appellant to 196 months, a double upward departure, upon a finding that Galindo was particularly vulnerable. Appellant filed a direct appeal on July 28, 2004, but this court stayed that appeal to accommodate appellant’s request to pursue postconviction relief.

Appellant petitioned for postconviction relief arguing that (1) the state obtained the conviction in deprivation of appellant’s due process rights because the state failed to disclose that Galindo had a 1996 conviction for first-degree criminal sexual conduct, and (2) the district court violated appellant’s Sixth Amendment right to a jury trial by imposing a double durational departure based on judicial findings of fact. The prosecutor in appellant’s case acknowledged that he failed to disclose Galindo’s prior conviction to appellant but stated that the failure to disclose was inadvertent.

The postconviction court denied relief on June 13, 2005, reasoning that Galindo’s prior conviction would not have been admissible for impeachment purposes because the probative value of its admission did not outweigh the prejudicial effect. The postconviction court then concluded that the Minnesota sentencing guidelines were discretionary and, therefore, the upward departure did not violate appellant’s right to a jury trial. Shortly thereafter, this court dissolved appellant’s stay of appeal.

D E C I S I O N

Appellant argues that the postconviction court erred in denying him a new trial because the prosecutor’s failure to disclose its witness’s prior conviction was prejudicial. Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id.

“[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963)); see also Minn. R. Crim. P. 9.01, subd. 1(6) (requiring that prosecutors “disclose to defense counsel any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged”). The duty to disclose such evidence exists even if the evidence is admissible only for impeachment purposes and the accused failed to make a request. Hunt, 615 N.W.2d at 299.

The United States Supreme Court has adopted a three-part inquiry into whether the failure to disclose evidence violates due process: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999).

Here it is undisputed that Galindo’s prior conviction for first-degree criminal sexual conduct was impeaching and favorable to appellant, and that the state inadvertently failed to disclose the evidence. The issue on appeal is whether the prosecutor’s failure to disclose the conviction prejudiced appellant, entitling him to a new trial. When examining prejudice, this court looks at whether the evidence would have been admissible at trial and whether the evidence could “in any reasonable likelihood have affected the judgment of the jury.” Hunt, 615 N.W.2d at 299; see also Gorman v. State, 619 N.W.2d 802, 806 (Minn. App. 2000) (outlining prejudice inquiry), review denied (Minn. Feb. 21, 2001). But the supreme court has cautioned that “[n]ondisclosure of evidence that is merely impeaching may not typically result in the kind of prejudice necessary to warrant a new trial.” Hunt, 615 N.W.2d at 300–01. And the likelihood of prejudice is decreased “where testimony of the witness sought to be impeached by nondisclosed evidence was not the only damning evidence against defendant.” Id. at 301 (quotation omitted).

Galindo’s prior conviction for criminal sexual conduct is not a crime involving dishonesty and, therefore, its admission for impeachment purposes depends on whether its probative value outweighs its prejudicial effect. See Minn. R. Evid. 609(a); see also State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998). In balancing the probative value against the prejudicial effect, Minnesota courts consider five factors: (1) the impeachment value of the prior crime; (2) the date of the conviction and the witness’s subsequent history; (3) the similarity of the past crime with the charged offense; (4) the importance of the witness’s testimony; and (5) the centrality of the credibility issue. See State v. Jones, 271 N.W.2d 534, 537–38 (Minn. 1978).

Acknowledging that crimes of violence do not have the same impeachment value as crimes of dishonesty, appellant argues that the postconviction court abused its discretion in concluding that the prejudicial effect of admitting Galindo’s prior conviction outweighed the probative value because admission of the conviction would have aided the jury in evaluating Galindo’s credibility. Appellant contends that Galindo’s credibility was central to the prosecution’s case because he was the only witness and victim. Appellant also argues that admission of the one conviction would not have unnecessarily delayed the trial or confused the issues. We disagree.

Appellant’s arguments are unsupported by Minnesota precedent. Although Minnesota appellate courts have condoned admitting prior criminal sexual conduct convictions for impeachment purposes, those cases involved evidence of a defendant’s prior conviction. See, e.g., Inhot, 575 N.W.2d at 588; State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985); State v. Vanhouse, 634 N.W.2d 715, 720 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). When examining whether to admit evidence of a prosecution witness’s prior conviction, the focus of the inquiry changes and “the major concerns are to protect the witness from being harassed and unduly embarrassed, the jury from being confused and misled, and everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged trial.” State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).

In Lanz-Terry, a defendant attempted to impeach the victim’s testimony and credibility with evidence of five prior felony convictions for property crimes and controlled substances. Id. at 638. The supreme court affirmed the district court’s exclusion of the prior-conviction evidence, reasoning that the convictions were only marginally useful to the jury in weighing the victim’s credibility and would have resulted in considerable prejudice because the convictions might have led a jury to believe that the victim “was a bad person who deserved to be the victim of a crime.” Id. at 639. See also State v. Perez, 397 N.W.2d 916, 921–22 (Minn. App. 1986) (holding that the district court erred in admitting evidence of defense witness’s prior conviction for criminal sexual conduct to impeach witness because the conviction was old, had little bearing on veracity or honesty, and the witness already acknowledged that he met the defendant in prison).

Applying Lanz-Terry, the postconviction court did not abuse its discretion in concluding that the probative value of admitting Galindo’s prior conviction did not outweigh the prejudice. With respect to probative value, the relevancy of Galindo’s conviction was diminished by its age; the conviction was eight years old at the time of trial. Galindo’s credibility was central to the case, but Galindo testified that he knew one of his attackers from a prior incarceration in the Northeast Regional Correction Center. Hence, the jury was on notice that Galindo had committed a prior offense of sufficient severity to warrant incarceration and could draw whatever inferences it felt appropriate about Galindo’s commitment to the law. There was minimal probative value in further impeaching Galindo with the details of the actual conviction. Finally, the prior conviction itself was not directly related to Galindo’s honesty and veracity. See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (noting that “sexual crimes have less bearing on veracity than do many other crimes”).

In addition, admission of the conviction would have resulted in considerable prejudice and confusion. Galindo’s prior conviction for first-degree criminal sexual conduct involved repeated sexual contact with a girl under the age of 16. Admission of the conviction may have distracted the jury or tempted the jury to punish Galindo rather than consider the facts supporting appellant’s guilt. In light of the marginal value of admitting the impeaching evidence for purposes of attacking Galindo’s credibility, the postconviction court’s decision was not an abuse of discretion.

The district court sentenced appellant to an executed prison term of 196 months, which is a double upward durational departure from the 98-month presumptive sentence. Appellant argues that the sentencing departure violated his constitutional right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000). The “statutory maximum” is the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. Absent additional findings, the presumptive sentence prescribed by the Minnesota sentencing guidelines is the maximum sentence under Blakely. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).

The postconviction court reasoned from United States v. Booker, 125 S. Ct. 738, 751–52 (2005), and concluded that “[i]n the second part of the Booker opinion, the Sixth Amendment problem was eliminated by making the federal guidelines advisory, not mandatory. This means judges may increase a sentence when they make factual findings beyond those made by the jury, but they are not required to do so.” But at the time, the district court did not have the Minnesota Supreme Court’s decision in Shattuck, wherein the court rejected the Booker solution of making the guidelines advisory. Shattuck, 704 N.W.2d at 146–47. Accordingly, in Shattuck, the supreme court held that the imposition of an upward durational departure from the presumptive sentence prescribed by the Minnesota sentencing guidelines, based solely on facts found by the judge, violates the Sixth Amendment right to trial by jury under Blakely. Id.at 142.

Here, the district court made the sentencing departure based on the fact, found by the judge, that “[the victim] was in a vulnerable condition that was apparent to both [brothers].” Thus, the district court erred in imposing a sentencing departure for the aggravated robbery conviction. The proper remedy is a remand to the district court for resentencing consistent with Shattuck.

Affirmed in part, reversed in part, and remanded.