This opinion will be unpublished and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

A05-1114

 

 

State of Minnesota,

Respondent,

 

vs.

 

Carlton V. Watson,

Appellant.

 

 

Filed September 12, 2006

Affirmed

Peterson, Judge

 

 

Hennepin County District Court

File No. 04055866

 

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

 

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

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

 

In this appeal from convictions of two counts of first-degree criminal sexual conduct, appellant Carlton V. Watson argues that the district court erred when it (1) did not sua sponte give the jury a specific unanimity instruction; and (2) admitted evidence of his prior convictions for impeachment purposes.  We affirm.

FACTS

 

             Appellant, age 45, met E.G. in November 2003 and began dating her.  In April 2004, appellant began living with E.G. in the home that she shared with her sons and her daughter, A.G.  The children had downstairs bedrooms, and E.G. and appellant had a bedroom upstairs.  On August 17, 2004, E.G. went downstairs and saw appellant leaving her daughter’s bedroom.  She went into A.G.’s bedroom and found A.G. in the closet in a fetal position under a comforter.  She asked A.G. what happened, and A.G. said that appellant had touched her.  E.G. took A.G. to a hospital where A.G. spoke with a nurse about what had happened to her and said that it had been happening for the last couple of  months.  At the hospital, A.G. told a police officer about the incidents and said that they had been occurring since June.  On August 19, 2004, A.G. was interviewed by staff at Cornerhouse, an interagency child-abuse evaluation center, and told the interviewer that appellant had been touching her since June. 

            Appellant was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (g) (2004), and a jury found appellant guilty on both counts.  This appeal followed.  

D E C I S I O N

 

1.         Appellant argues that the district court violated his right to a unanimous jury verdict when it failed to give the jury a specific unanimity instruction.  Appellant did not request a specific unanimity instruction and did not object to the jury instructions that were given. 

Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.  In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law.

 

State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (citation omitted).

            “[T]he jury need not . . . decide unanimously which of several possible means the defendant used to commit the offense . . . .”  State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002) (emphasis added).  But “[w]here jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.”  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001) (emphasis added).  The safeguards for preventing such a violation are “(1) the prosecution must elect the specific act on which it is relying for conviction; or (2) the trial court must give the jury a specific unanimity instruction stating that the jury must unanimously agree that the same underlying criminal act has been proven beyond a reasonable doubt.”  Id. at 357. 

In Stempf, the defendant was charged with one count of possessing methamphetamine, but the state introduced evidence that the defendant possessed methamphetamine at the premises of his workplace and in the truck in which he was riding when he arrived at work.  Id. at 354.  The district court denied a request for an instruction requiring jurors to evaluate the two acts separately and unanimously agree that the state had proved the same underlying criminal act beyond a reasonable doubt.  Id.  This court held:

Because the state did not elect which act of possession it was relying on for conviction, . . . the trial court’s refusal to give a specific unanimity instruction violated [the defendant’s] right to a unanimous verdict.  Some jurors could have believed [the defendant] possessed the methamphetamine found on the premises while other jurors could have believed [the defendant] possessed the methamphetamine found in the truck.

 

Id. at 358.

            Appellant was charged with two counts of first-degree criminal sexual conduct: sexual penetration with a complainant under age 13 when the defendant is more than 36 months older than the complainant; and sexual penetration with a complainant under age 16 and the defendant has a significant relationship to the complainant.  Minn. Stat. § 609.342, subd. 1(a), (g) (2004).  The prosecution did not elect a specific act on which it was relying for conviction, and the district court did not instruct the jury that it must unanimously agree that the prosecution proved a specific underlying criminal act beyond a reasonable doubt.

Citing Stempf, appellant argues that the district court erred when it failed to instruct the jury that in order to find him guilty, it must unanimously agree that he committed a specific act.  Appellant contends that because the prosecution introduced evidence of multiple distinct acts, some jurors could have found him guilty based on one alleged act and other jurors could have found him guilty based on another alleged act. 

But unlike the defendant in Stempf, appellant did not request that the district court give the jury a specific unanimity instruction or object to the instructions that were given.  Absent an objection to the instructions at trial, we will only review the instructions for plain error.  Baird, 654 N.W.2d at 113.   A required element of the plain-error test is that the error affected substantial rights.  Id.  The defendant’s burden of persuasion on this element “is satisfied if the error was prejudicial and affected the outcome of the case.”  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).  Plain error is “prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Id. (quotation omitted).

Appellant does not articulate any reason why some jurors would have credited A.G.’s testimony about one of the alleged acts but not about the other alleged acts.  In State v. Shamp, 427 N.W.2d 228, 231 (Minn. 1988), the supreme court held that the district court’s failure to instruct the jury that it could not base the conviction on acts of abuse occurring outside the period of the statute of limitations was not prejudicial and, therefore, not plain error.  The holding was based on the supreme court’s conclusion that there was no reasonable likelihood that the jury somehow discredited the victim’s testimony relating to abuse occurring within the limitations period but credited her testimony concerning abuse occurring earlier.  Shamp, 427 N.W.2dat 231.  Here, as in Shamp, there is no reasonable likelihood that the jury would have credited A.G.’s testimony about one of the alleged acts but not about the other alleged acts.  Because appellant has failed to establish a required element of the plain-error test, he is not entitled to reversal of his conviction based on the district court’s failure to give a specific unanimity instruction.

2.         Appellant argues that the district court erred by admitting evidence of his prior felony convictions for impeachment purposes.  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) permits the admission of evidence of prior convictions for impeachment purposes if the probative value of the evidence outweighs its prejudicial effect.  The factors to consider when determining whether probative value outweighs prejudicial effect, which are known as the Jones factors, 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.”

 

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978)).

Before trial, the state declared its intention to impeach appellant with his prior felony convictions if he chose to testify at trial.  The prior felony convictions were for (1) residential burglary in 1989 in Illinois; (2) forgery in 1994 in Illinois;[1] (3) aiding and abetting aggravated robbery in 1997 in Minnesota; and (4) second-degree burglary in 1998 in Minnesota.  The district court ruled that the prior convictions would be admissible for impeachment purposes, but it failed to explicitly address the five Jones factors.  Failing to explicitly address the Jones factors was error.  See State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (noting that Minn. R. Evid. 609(a) committee comment states that the district court “should make explicit findings regarding the factors considered and the reasons for admitting or excluding evidence and stating that the district court should make similar record findings when admitting a conviction under Rule 609(b) [convictions more than ten years old], given that the standard for admitting such impeachment evidence is stricter than that under Rule 609(a)”), review denied (Minn. Dec. 11, 2001).  But “the error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis.”  Id.  Thus, we consider the Jones factors.

A.        Impeachment Value

Appellant argues that his prior convictions do not involve dishonesty, and, therefore, they have little true impeachment value.  But in State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979), the supreme court concluded that Minn. R. Evid. 609 “clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility.”  The supreme court stated, “Just because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value.”  Brouillette, 286 N.W.2d at 707.  The court then explained that “impeachment by prior crime aids the jury by allowing it ‘to see “the whole person” and thus to judge better the truth of his testimony.’”  Id. (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)).  The court explained further:

“The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth.  What a person is often determines whether he should be believed.  When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word.  No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word.  In transactions of everyday life this is probably the first thing that they would wish to know. . . . Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey . . . though the violations are not concerned solely with crimes involving ‘dishonestly and false statement.’”

 

Id.  (omissions in original) (quoting State v. Duke, 123 A.2d 745, 746 (1956)).

Here, the district court noted “that when anyone testifies, that jurors need to be able to know that whole person.”  Appellant argues that the “whole person” rationale runs counter to a growing body of knowledge about how a jury actually uses evidence of prior convictions.  But knowledge that a jury may improperly use evidence of a prior conviction does not permit us to disregard supreme court precedent.  Under Brouillette, appellant’s prior convictions are probative of credibility.

B.        Date of Conviction and Subsequent History

Under this factor, we evaluate the date of a conviction and appellant’s subsequent history to determine whether the conviction has lost its relevance over time.  Vanhouse, 634 N.W.2d at 720 (citing State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980)). 

Evidence of a conviction . . . 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, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

 

Minn. R. Evid. 609(b). 

Appellant argues that this factor weighs against admitting the 1989 residential-burglary conviction because he was released from confinement imposed for that conviction in 1993, which was more than ten years before the current offense.  But in Vanhouse, this court determined that because the witness’s criminal record included two driving-after-revocation offenses and a misdemeanor theft that occurred after a criminal-sexual-conduct conviction, the continuing misconduct prolonged the probative value of the otherwise stale criminal-sexual-conduct conviction.  634 N.W.2d at 718, 720; see also Bettin, 295 N.W.2d at 546 (finding that aggravated-rape conviction did not lose relevance over time because defendant was in prison between offenses).  As in Vanhouse, appellant’s continued misconduct could reasonably prolong the probative value of the 1989 residential-burglary conviction.

C.        Similarity of Crimes

 “The danger when the past crime is similar to the charged crime is that the likelihood is increased that the jury will use the evidence substantively rather than merely for impeachment purposes.”  Bettin, 295 N.W.2d at 546.  The greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.  Jones, 271 N.W.2d at 538.  Appellant acknowledges that his prior convictions were not for offenses that are similar to the current offenses, but he argues that there is always the potential for jurors to view a defendant dimly because of a criminal record and to conclude that the defendant is a bad person in spite of the dissimilarity of the offense.  This argument, however, is simply an argument that prior convictions should not be admitted for impeachment purposes; it does not meaningfully address the fourth Jones factor.  Because appellant’s prior convictions were not for offenses that are similar to the current offense, this factor favors admission of the prior convictions.

D.        Importance of Appellant’s Testimony

            If the admission of prior convictions prevents a jury from hearing a defendant’s version of events, this weighs against admission of the prior convictions.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  Appellant chose to not testify, but he did not make an offer of proof to show what his testimony would have been had he testified.  Therefore, we are left to assume that if he had testified, he would have denied A.G.’s allegations, which would mean that A.G. fabricated the allegations.  Appellant’s decision to not testify did not prevent the jury from hearing this version of events.  The defense theory that A.G.’s story was fabricated was presented to the jury through the arguments of counsel and through cross-examination of witnesses.  If there was any specific element of this theory that could only be presented to the jury through appellant’s testimony, the need for admitting appellant’s prior convictions would increase under the fifth Jones factor.

E.         Centrality of Appellant’s Credibility

[T]he general view is that if the defendant’s credibility is the central issue in the case—that is, if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person—then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.

 

Bettin, 295 N.W.2d at 546.

Had appellant testified and denied A.G.’s allegations, his credibility would have been central to the case.  The jury would have had to decide whether to believe appellant or A.G.  “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).

We conclude that after a proper application of the Jones factors, evidence of appellant’s prior convictions could have been admitted for impeachment purposes.  Therefore, the district court’s failure to explicitly address the five Jones factors is harmless error, and the district court did not clearly abuse its discretion by admitting evidence of the prior convictions.          

            Affirmed.