This opinion will be unpublished and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

A05-505

 

 

State of Minnesota,

Respondent,

 

vs.

 

Chester Otto Landers,

Appellant.

 

 

Filed May 2, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. 03079631

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Hudson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges his conviction for felony theft, arguing that he was prejudiced by the district court’s admission of his prior criminal history for impeachment purposes.  In a pro se supplemental brief, appellant also argues that he received ineffective assistance of counsel during trial, that the evidence was insufficient to support the conviction, and that he was convicted twice for the same act.  We affirm.

FACTS

            Appellant Chester Landers rented a pressure washer from a hardware store.  After multiple unsuccessful attempts by an employee of the hardware store to get appellant to return or purchase the pressure washer, the store filed charges against appellant, alleging theft.

            During a jury trial, a witness testified that appellant had sold the pressure washer to him.  The witness said that he found it unsuitable and sold it to another party.  Appellant testified at trial in his own defense, stating that the witness had refused to return the pressure washer and had hidden it from him.  Over an objection, the district court permitted the state to introduce evidence of two of appellant’s past convictions to impeach his credibility.

            Appellant was found guilty on two counts of felony theft and sentenced on one count to 15 months stayed for three years, plus restitution.  As part of his probation, appellant was committed to 90 days in a county correctional facility.

D E C I S I O N

1.  Impeachment

 

            The 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 the 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). 

            Minn. R. Evid. 609(a)(1) provides for the admission of prior convictions for impeachment purposes if the probative value of the evidence outweighs its prejudicial effect.  Factors that the district court must consider in determining whether to restrict the use of prior crimes are:  (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).

            Prior to trial, the state declared its intention to impeach appellant with two of six prior convictions if he chose to testify at trial.  These convictions were for a controlled-substance crime in 1992 and for an aggravated robbery in 1993.  Appellant’s attorney argued that the convictions lacked probative value because they were not relevant to his capacity for truthfulness and the prejudice in allowing evidence of ten-year-old convictions involving narcotics and robbery “completely outweighs any probative value.”  The district court stated that it was “mindful of the five factors to be taken into consideration [for] using prior convictions” and summarily found “that each of those factors weighs in favor” of allowing the state to use the convictions.  The court did not address those factors individually on the record.

            Appellant presents persuasive caselaw from other jurisdictions regarding the inherent danger of prejudice when a jury is presented with evidence of past convictions. But Minnesota courts have repeatedly held that prior crimes evidence has value in making credibility assessments, reasoning that impeachment by prior crime evidence aids the jury by allowing it to see the “whole person” and thus to better judge the truth of that witness’ testimony.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993); State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979); St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975).  This court is bound by these prior decisions.

            Appellant also argues that a proper analysis of the Jones factors would have resulted in a finding that the convictions are more prejudicial than probative.  With respect to the first factor, the prior convictions provide a “whole person” portrayal of appellant but appear to have no other probative value.  Regarding the time elapsed since the prior convictions, appellant’s release date on the two prior convictions was within ten years of the time the district court made its evidentiary ruling, as required by rule 609, and the convictions are therefore not stale.  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 concedes that the two convictions were not similar to the felony theft charge, and this mitigates the potential prejudicial effect.  Finally, this was a fairly simple criminal case that focused on the competing accounts of two witnesses, and thus appellant’s testimony and the issue of credibility were central.  “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, 707 N.W.2d 645, 655 (Minn. 2006).

            Because our review of the Jones factors supports the district court’s finding that the probative value of this evidence outweighed its prejudice, we affirm the court’s evidentiary ruling.

2.  Other Issues

            Ineffective Assistance of Counsel

            In a pro se supplemental brief, appellant claims that his trial counsel fell asleep during an attorney-client meeting, never called appellant to discuss the case, was not prepared for trial, and failed to present exonerating evidence.  To support a claim of ineffective assistance of counsel,

[t]he defendant 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.  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 v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

            Appellant offers several complaints about his trial attorney’s representation, several of which concern alleged out-of-court actions, and he does not indicate that these facts were developed in the trial record.  This appeal thus would fail for not affirmatively proving those errors.  See Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (stating that defendant must show by a preponderance of the evidence that counsel’s performance was deficient).  More important, appellant does not indicate that this claim was ever presented to the district court in a post-trial motion for a new trial, and therefore the claim is not ripe for review on this appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate court will not generally decide issues not raised to district court).  Appellant has failed on the present record to establish a basis to reverse the convictions for ineffective assistance of counsel.

            Insufficient Evidence to Sustain Conviction

            Appellant also argues that the evidence was not sufficient to sustain a conviction because police reports characterized the allegations of theft as a civil matter and because his attorney did not present evidence of appellant’s truthfulness.  In considering a claim of insufficient evidence, this court must review 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 the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  An appellate court must assume 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            The state presented a witness who testified that appellant sold him the pressure washer in question; appellant testified that the witness essentially stole the pressure washer from him and refused to return it.  Depending on whom the jury believed and other evidence concerning the pressure washer, it could find that appellant had committed theft of an item with a value in excess of $500.  The record contains sufficient evidence for the jury to have reached its verdict.

            Multiple Convictions for Same Act

            Appellant contends that he was convicted twice for the same charge in violation of Minn. Stat. § 609.04, subd. 1 (2004).  See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (reversing duplicate convictions under different sections of the statute for a single criminal act).

            On October 14, 2004, the jury returned guilty verdicts on two separate counts of felony theft under Minn. Stat. § 609.52, subds. 2(1), 2(9)(iii) (2002).  In response to a request for presumptive probation, the court told appellant, “I’m going to allow you to stay out . . . to prove yourself to probation.”  On December 21, the court issued a stay of execution of sentence in an order stating that appellant was convicted of one count of felony theft and outlining multiple rules and conditions, including the requirement that he serve 90 days in a county correctional facility.  On January 24, 2005, the district court issued a warrant of commitment based on the single count—theft over $500 in violation of Minn. Stat. § 609.52, subd. 2(1)—and remanded appellant to the custody of the county facility for 90 days with credit for 46 days already served.  Although the jury found him guilty on separate counts, the record does not support appellant’s claim that he was convicted twice for the same criminal act.

            Affirmed.