A05-2416

State of Minnesota,

Respondent,

vs.

Saeb Sivixay,

Appellant.

Filed April 17, 2007

Affirmed

Willis, Judge

Concurring specially, Shumaker, Judge

Watonwan County District Court

File No. K6-04-70

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

LaMar Piper, Watonwan County Attorney, Watonwan County Courthouse, 710 Second Avenue South, St. James, MN 56081 (for respondent)

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

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

WILLIS, Judge

In this appeal from a conviction of sale of a controlled substance, appellant argues that the district court erred when it failed to exclude evidence of appellant’s prior convictions and that prosecutorial misconduct during trial warrants reversal of his conviction. Because we conclude that the district court did not abuse its discretion by admitting evidence of appellant’s prior convictions and that any prosecutorial misconduct did not deny appellant his right to a fair trial, we affirm.

FACTS

On September 25, 2003, a police informant arranged to purchase methamphetamine from appellant Saeb Sivixay in Watonwan County. Law-enforcement officers followed the informant to a warehouse where appellant worked, and the officers observed informant and appellant walk out together after meeting inside the warehouse. After the informant and the officers had left the scene, the informant handed over to the officers a plastic bag containing a white substance later determined to be 6.3 grams of methamphetamine. The informant testified at trial that she had purchased the methamphetamine from appellant. Appellant was arrested and charged with second-degree sale of a controlled substance, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002).

At trial, the state called as witnesses the police informant and a law-enforcement officer who saw appellant leave the warehouse with the informant. Appellant was the only defense witness. The jury found appellant guilty, and this appeal follows.

D E C I S I O N

Appellant first argues that the district court erred when it denied his motion to exclude evidence of his two prior felony convictions. Appellant was convicted of conspiracy to sell methamphetamine in Cottonwood County to the same police informant. That offense occurred six days after the Watonwan County sale alleged here. The Cottonwood County sale was prosecuted first, and appellant was convicted for the Cottonwood County sale and sentenced to prison. At the time of the district-court trial in Watonwan County, an appeal from appellant’s conviction in Cottonwood County was pending before this court. Appellant also has a prior conviction for receipt of stolen property.

Appellant moved the district court to exclude the evidence of his prior conviction in Cottonwood County, arguing that the conviction was not final because an appeal was pending and that the prejudicial effect of the evidence outweighed its probative value, “particularly in light of the fact that [appellant] does have a second felony conviction for receiving stolen property . . . that is certainly admissible and would accomplish the same goal.” The district court denied appellant’s motion to exclude evidence of the Cottonwood County conviction.

The record shows that appellant moved to exclude only the Cottonwood County conviction, not the conviction for receiving stolen property. Because appellant failed to move the district court to exclude the evidence of the receipt-of-stolen-property conviction, admission of the evidence of that conviction is reviewed only for plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The receipt-of-stolen-property conviction was a felony, it took place within the past ten years, and its probative value is not plainly outweighed by its prejudicial effect. See Minn. R. Evid. 609. Noting also defense counsel’s characterization at trial of the receipt-of-stolen-property conviction as “certainly admissible,” we conclude that it was not plain error for the district court to allow reference to the conviction.

Because appellant did move the district court to exclude evidence of his prior conviction for selling methamphetamine, we review the denial of that motion for an abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Appellant concedes that the conviction was for a felony, which is required for admissibility under rule 609, but he argues that the evidence should have been excluded on the ground that the probative value of the conviction is outweighed by its prejudicial effect, and he also argues that the district court erred by failing to address on the record the factors set forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978).

Appellant is correct that a district court applies the factors set forth in State v. Jones to determine whether the probative value outweighs the prejudicial effect of admitting a prior conviction for impeachment purposes. 271 N.W.2d at 537-38. To apply the Jones factors, the district court considers (1) the impeachment value of the prior crime, (2) the date of conviction and the defendant’s subsequent history, (3) the similarity of the past and charged crimes, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. Id.at 538; Minn. R. Evid. 609(a). But there is no reversible error when a district court fails to conduct a Jones analysis on the record if the appellate court, applying the Jones factors itself, determines that the district court properly exercised its discretion. State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).

The first Jones factor weighs in favor of admissibility. Appellant’s prior convictions had impeachment value “by helping the jury see the ‘whole person’ of the defendant and better evaluate his . . . truthfulness.” Id. at 655. Appellant cites two cases for the proposition that drug convictions have less impeachment value, but in neither case did the appellate court conclude that the district court had abused its discretion by admitting evidence of the drug conviction, and in neither opinion did the court conclude that the prior conviction had little impeachment value because the conviction was of a drug crime. The general rule that prior convictions have impeachment value applies here.

The second Jones factor also weighs in favor of admissibility. Appellant’s prior conviction took place in 2004, slightly more than a year before the trial here. See id. (determining that the fact that prior convictions were less than ten years old weighed in favor of admissibility). The prior conviction therefore has not “lost any relevance by the passage of time.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).

We agree with appellant that the third factor weighs against the admissibility of the prior-conviction evidence. The prior conviction was of the same crime for sale of the same drug to the same police informant. When the alleged offense and the crime underlying a past conviction are similar, it is possible that the jury will use the evidence of the past conviction substantively rather than merely for impeachment purposes, so it is more likely that the past conviction is more prejudicial than probative. Id. at 546; Jones, 271 N.W.2d at 538.

The fourth and fifth Jones factors are often combined, and here, they weigh in favor of admitting the prior-conviction evidence. When appellant testified, his version of the facts sharply contradicted the versions offered by the two other witnesses. And, as the state points out, appellant and the police informant were the only two people present at the alleged drug sale. Appellant’s testimony was crucial to his defense, and his credibility was therefore central. See Ihnot, 575 N.W.2d at 587.

Four of the five Jones factors weigh in favor of admissibility. The district court did not abuse its discretion when it concluded that the probative value of the evidence of appellant’s prior conviction for the sale of methamphetamine did not outweigh its prejudicial effect and admitted the evidence.

II.

Appellant next argues that the state committed prosecutorial misconduct (1) when the prosecutor questioned appellant during cross-examination regarding his failure to produce certain witnesses; (2) when the prosecutor asked appellant whether the state’s witnesses were lying; and (3) when the prosecutor misstated the jury’s duty and made improper comments during his closing argument. Prosecutorial misconduct must be carefully evaluated on appeal because it may have denied a defendant his right to a fair trial. State v. Washington, 725 N.W.2d 125, 133 (Minn. App. 2006), review denied (Minn. Mar. 20, 2007). This court “will reverse a conviction if prosecutorial error, considered in light of the whole trial, impaired the defendant’s right to a fair trial.” Id. Minnesota appellate courts have noted that “district courts are in the best position to monitor the conduct of prosecutors and assess the impact, if any, of alleged misconduct.” State v. Haynes, 725 N.W.2d 524, 529 (Minn. 2007).

Objected-To Misconduct

Defense counsel objected to the prosecutor’s questions on cross-examination regarding appellant’s failure to produce certain witnesses and regarding whether certain witnesses were lying. When actions by a prosecutor have risen to the level of misconduct and defense counsel has objected, we review the misconduct in light of the whole trial and reverse only if the appellant’s right to a fair trial was impaired. State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006). We will not grant a new trial if the misconduct was harmless beyond a reasonable doubt, that is, if the jury’s verdict was surely unattributable to the misconduct. Id.

The state argues that the prosecutor’s two questions regarding appellant’s failure to produce certain witnesses did not constitute misconduct because defense counsel’s immediate objections were sustained, and the prosecutor then “moved on” and did not re-ask his question. But it is well settled that a prosecutor may not comment on a defendant’s failure to call a particular witness because such a comment suggests both that the defendant bears a burden of proof and that the defendant avoided calling the witness because the witness’s testimony would be unfavorable. Id. at 787. We conclude that even if the state’s questions merely “implied” that appellant purposely failed to call particular witnesses, as the state asserts, they were nevertheless misconduct.

But we also conclude that the jury’s verdict was surely unattributable to the misconduct. Id. at 785. The facts that the questions were objected to and that those objections were immediately sustained, reducing the impact of the questions on the jury, supports such a conclusion. State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006). Further, there is substantial evidence supporting the conviction, including two eyewitnesses; phone records establishing that calls were made on September 24 and 25, 2003, between the police informant’s phone and a phone that was found in appellant’s possession when he was arrested; and the physical evidence of the methamphetamine that the informant turned over to police. See State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994) (concluding that the “strength of the evidence in this case is such that the comments were unlikely to have substantially influenced the jury”). Considered in light of the entire record, the misconduct that the prosecutor committed when he asked appellant about his failure to call certain witnesses was harmless beyond a reasonable doubt.

Appellant next argues that the state committed prosecutorial misconduct when the prosecutor asked appellant three times on cross-examination whether the state’s witnesses were lying or mistaken. As a general rule, “were they lying” questions are inappropriate because they create the impression that the jury must conclude that the witnesses in question were lying before the jury may acquit the defendant. Dobbins, 725 N.W.2d at 511. The prosecutor may ask “were they lying” questions only if “the defendant holds the issue of the credibility of the state’s witnesses in central focus” and not merely because the defendant’s testimony conflicts with the witnesses’ testimony. Id.(quoting State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005)) (quotation marks omitted). “Were they lying” questions may be permissible when those questions would be particularly probative in clarifying a line of testimony, when the jury must evaluate “the credibility of a witness claiming that everyone but the witness lied,” or when the witness “flatly denies the occurrence of events,” thereby placing the central focus on the credibility of the state’s witnesses. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (quotation omitted).

Here, appellant claimed that both of the state’s two witnesses were lying, and appellant was the only other witness at trial. And he essentially “flatly denie[d] the occurrence of events” when he testified that he spoke with the police informant only on the phone on September 25, 2003; that drugs were not discussed; and that he did not see her that day. The “were they lying” questions were not misconduct here because the appellant placed the credibility of the state’s witnesses in central focus. Id. at 518.

Even if the questions did constitute prosecutorial misconduct, we conclude that the jury’s verdict was surely unattributable to such misconduct, rendering it harmless beyond a reasonable doubt. The questions were objected to, and those objections were sustained; the jury was properly instructed; and the evidence against appellant was substantial. Any misconduct did not deny appellant’s right to a fair trial.

Unobjected-To Misconduct

Appellant also argues that the prosecutor committed additional acts of misconduct during his closing argument to which appellant admittedly failed to object at trial. We review unobjected-to prosecutorial misconduct for plain error that affects substantial rights. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). The appellant bears the burden of demonstrating “both that error occurred and that the error was plain.” Id.at 302. The burden then shifts to the state to demonstrate that the plain error did not affect the appellant’s substantial rights by showing that there is “no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Id. (quoting State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005)) (quotation marks omitted). If we conclude that the alleged misconduct was plain error that affected substantial rights, we then assess whether we should address the error to ensure fairness and to ensure the integrity of the judicial proceedings, and we correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected. Dobbins, 725 N.W.2d at 508 (quotations omitted).

Appellant claims that the prosecutor committed prosecutorial misconduct during his closing argument by (1) encouraging the jury to “reach a verdict that is effective”; (2) minimizing the fact that appellant was not arrested until a week after the offense by explaining that “in law enforcement they want to see if somebody does something else,” when that statement was not supported by the record; (3) stating that the jury “may wonder if this—if this series of events that the [d]efendant has now testified to has been created on the fly, so to speak”; and (4) improperly vouching for the state’s witnesses by asking the jury to consider whether either the law-enforcement officer or the police informant had any reason to lie.

The state argues that the prosecutor’s statements “were not prejudicial and did not deprive appellant of a fair trial for a number of reasons”: (1) the district court properly instructed the jury on all relevant matters, making it “doubtful that the jury was influenced by any improper remark by the prosecutor”; (2) the prosecutor admonished the jurors during his closing argument that statements by attorneys are not evidence and that they must evaluate only evidence; (3) appellant complains about only a few “brief, isolated comments” from the prosecutor’s lengthy closing argument, most of which was devoted to reviewing the evidence; (4) any alleged improper statements were “minor and most likely unintentional”; and (5) “the evidence against appellant was strong.”

The state is correct that appellant does not characterize the alleged misconduct during the prosecutor’s closing argument as plain error. Because appellant bears the burden of demonstrating “both that error occurred and that the error was plain” under Ramey, 721 N.W.2d at 302, appellant has failed to meet his burden. Further, the comments that appellant characterizes as misconduct were not plainly improper. They simply did not rise to the level of misconduct. And even if the comments that appellant complains of were to be considered plain error, we conclude that the state has met its burden to show that any such error did not significantly affect the verdict. Appellant was not denied his right to a fair trial.

Affirmed.