This opinion will be unpublished and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

A05-1818

 

State of Minnesota,

Respondent,

 

vs.

 

Harold Whyte,

Appellant.

 

Filed January 9, 2007

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 04069430

 

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

 

Mike Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Harold Whyte, OID #172722, 5329 Osgood Avenue N., Stillwater, MN  55082 (pro se appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Worke, Judge, and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Harold Whyte appeals from his conviction for kidnapping and first-degree criminal sexual conduct and from his sentence.  Appellant argues that the district court abused its discretion by admitting for impeachment purposes evidence of his prior felony convictions of burglary and controlled-substance crime, and Spreigl evidence of his 1993 criminal sexual conduct conviction.  Appellant also argues that the prosecutor committed prejudicial misconduct in closing argument by repeatedly using first-pronoun prefatory phrases such as “I submit” and “I will submit to you.”  Finally, appellant challenges his enhanced sentence, arguing that the district court lacked authority to impanel a sentencing jury to comport with Blakely.  Because we conclude that the district court did not abuse its discretion by admitting appellant’s prior convictions for impeachment purposes and that the prosecutor did not commit misconduct, we affirm the conviction.  And because under the supreme court’s recent decision in State v. Chauvin, 723 N.W.2d 20 (Minn. 2006),the district court did not err by impaneling a sentencing jury, we also affirm appellant’s sentence.

D E C I S I O N

I.

            Evidence of a prior conviction may be admitted to attack the credibility of a witness when the conviction is less than ten years old, the offense is punishable by imprisonment for more than one year, and the probative value of the evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a), (b).  To determine whether the probative value of a prior conviction outweighs its prejudicial effect, courts 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, . . . (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.”  State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).  We will not reverse a district court’s decision on the admissibility of impeachment evidence unless there is a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

            Appellant was impeached with evidence of two convictions, a 1998 burglary conviction and a 2004 controlled substance conviction.  Although neither is a conviction for an offense involving dishonesty, both convictions were punishable by imprisonment in excess of one year and occurred within ten years of the present offense, satisfying the basic requirements of Minn. R. Evid. 609.  

            Furthermore, after considering the other Jones factors, we conclude that the probative value of this evidence outweighed its prejudicial effect.

            First, the more similar a past crime is to the current offense, the greater is the danger that the jury will use the evidence not only for impeachment but also substantively.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  Here, neither impeachment offense is similar to the current offense. 

            Second, both offenses, as well as the date of release from confinement for the offenses, were within ten years of the current offense, and although appellant had no convictions between 1998 and 2003, he was under supervision during that time; the controlled substance conviction occurred within a year following his release from supervision.  This is sufficient to show a “pattern of lawlessness” that enhances the probative value of the conviction.  Ihnot, 575 N.W.2d at 586.

            Third, courts are encouraged to exclude impeachment testimony if use of such evidence would cause a defendant not to testify and prevent a jury from hearing the defendant’s version of events.  See Gassler, 505 N.W.2d at 67.  Despite admission of the impeachment evidence, appellant did testify.

            Finally, the probative value of impeachment testimony is enhanced when the defendant’s credibility is a central issue in the case.  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  A defendant’s credibility is a central issue when the jury is required to choose between the defendant’s and the victim’s versions of events.  State v. Mitchell, 687 N.W.2d 393, 398 (Minn. App. 2004), review denied (Minn. Dec. 13, 2005).  This was precisely the issue presented to the jury in this matter.

            Impeachment evidence aids the jury by allowing it to see the “whole person” and thereby better assess the truth of the defendant’s testimony.  State v. Flamino, 721 N.W.2d 326, 328 (Minn. App. 2006).  Weighing the probative value of the impeachment evidence against its prejudicial impact, we conclude that the district court did not abuse its discretion by admitting the evidence.

II.

            Evidence of prior bad acts, generally known as Spreigl evidence, is inadmissible to prove that a defendant acted in conformity with his or her character but is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).   

            Spreigl evidence is admissible if (1) the state gives notice of its intent to introduce the evidence; (2) the state clearly indicates what the evidence is offered to prove; (3) there is clear and convincing evidence that the defendant participated in the prior offense; (4) the evidence is relevant and material to the state’s case; and (5) the probative value of the evidence is not outweighed by its prejudicial effect.  Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005).  We review the district court’s decision to admit Spreigl evidence for an abuse of discretion.  State v. Washington, 693 N.W.2d 195, 200 (Minn. 2005).  The issue before us is whether the evidence was relevant and whether the probative value of the evidence outweighed its prejudicial effect.

            Spreigl evidence is relevant and material when there is a sufficiently close relationship between the Spreigl evidence and the charged offense in terms of time, place, and modus operandi.  State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998).  The closer the relation between the Spreigl offense and the crime charged, the greater the relevance and probative value of the Spreigl evidence and the lesser the likelihood that it will be used for an improper purpose.  Id.

            Here, the Spreigl offense, a 1993 sexual assault conviction, is markedly similar to the current first-degree criminal sexual conduct offense.  In both offenses, appellant confronted the victim on the street, threatened her at knifepoint, and sexually assaulted her while holding two knives, later asserting that both victims engaged in sex in exchange for money or drugs.  The Spreigl offense and the charged offense are thus substantially similar in modus operandi. 

            At trial, appellant testified that the victim had fabricated events.  The supreme court has consistently upheld the admission of Spreigl evidence to establish that an act occurred and to refute a defendant’s allegation that the victim’s testimony was fabricated.  See, e.g., Kennedy, 585 N.W.2d at 391 (holding Spreigl evidence of subsequent sexual assault relevant to jury’s determination of whether defendant sexually assaulted victim, as victim testified, or whether victim’s testimony was fabrication); State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (stating that Spreigl evidence was “highly relevant” in rebutting defense that victim was fabricating or imagining the occurrence of sexual contact); State v. Anderson, 275 N.W.2d 554, 555-56 (Minn. 1978) (upholding admission of Spreigl evidence to refute defendant’s allegation that victim’s testimony was fabricated); State v. Shuffler, 254 N.W.2d 75, 76 (Minn. 1977) (stating that Spreigl evidence was “directly relevant” to determination of  defendant’s claim that the victim’s testimony was fabricated).  Thus, the Spreigl evidence was relevant to show a lack of consent and to rebut the claim that the victim had fabricated her testimony. 

            Even relevant evidence may be excluded if its potential for unfair prejudice substantially outweighs its probative value.  Minn. R. Evid. 403.  One consideration in this analysis is the state’s need for this evidence.  See State v. Bell, 719 N.W.2d 635, 639 (Minn. 2006) (stating that although trial courts need not engage in independent necessity analysis, need for evidence is “naturally considered as part of the assessment of the probative value versus the prejudicial effect.”). 

            In the absence of objective forensic findings, the district court concluded that the evidence of sexual penetration and lack of consent was weak.  The Spreigl evidence bolstered this evidence by showing a common plan or scheme, as well as calling into question appellant’s claim that the victim consented to sexual penetration.  Under these circumstances, the district court did not abuse its discretion by admitting the evidence. 

III.

            A defendant who fails to object to prosecutorial misconduct generally waives the right to have the issue considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  In its discretion, however, this court may consider an issue not objected to at trial under the plain-error rule, to determine if the alleged misconduct “was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited.”  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  In this case, the prosecutor did not commit error.

            Prosecutors may not interject their personal opinions into a case, in order to prevent “exploitation of the influence of the prosecutor’s office.”  State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (quotation omitted).  But Minnesota courts have consistently held that the use of prefatory phrases such as “I submit” or “I would submit to you,” when offering a proposed interpretation of the evidence to the jury, does not amount to an impermissible interjection of personal opinion.  State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000) (concluding that  prosecutor was offering interpretation of evidence rather than personal opinion as to guilt when he stated, “I submit to you [that the victim] was killed by her partner”); State v. Anderson, 720 N.W.2d 854, 864 (Minn. App. 2006) (concluding that “prosecutor’s prefatory phrase ‘I suggest’ [was] equivalent to ‘I submit’ or ‘the state submits,’” which are permissible).  Although we discourage the excessive use of first-pronoun prefatory phrases, the occasional use of that rhetorical device is fair argument, and we conclude that the limited use of the challenged phrases in this case was fair argument, not error. 

IV.

            In light of the supreme court’s recent decision in State v. Chauvin, 723 N.W.2d  20 (Minn. 2006), we conclude that the district court’s use of a sentencing jury to make factual findings on aggravating sentencing factors was not error.  In Chauvin, the supreme court held that the district court has inherent authority to impanel a sentencing jury to make factual findings when (1) the district court determines that the judicial fact-finding portion of the sentencing guidelines violates the Sixth Amendment; (2) the legislature has not yet provided for an alternative sentencing process; and (3) the district court could not otherwise effectuate the legislature’s policy to depart from the presumptive sentence in appropriate cases.  Id. at 24-27. The court also held that in light of the 2005 legislation retroactively authorizing the use of sentencing juries on resentencing, the cases in which it declined to exercise its inherent authority to authorize sentencing juries were not retroactively binding on the district court.  Id. at 27.   

            Because we conclude that the district court exercised its inherent authority to conduct a bifurcated trial and to ask the jury to make factual findings on aggravating
sentencing factors in compliance with the procedure set forth in Chauvin, we affirm the upward departure from the presumptive sentence.

            Affirmed.