This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1820

State of Minnesota,

Respondent,

vs.

Scott Allan Moody,

Appellant.

Filed June 10, 1997

Affirmed

Amundson, Judge

Olmsted County District Court

File No. K8-95-3481

Hubert H. Humphrey III, Attorney General, Helen G. Rubenstein, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for Respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant challenges his third-degree criminal sexual conduct conviction because (1) evidence of his gang affiliation was admitted at trial; and (2) evidence of prior convictions for controlled substance offenses was admitted for impeachment purposes. We affirm.

FACTS

On December 6, 1995, appellant Scott Allan Moody was charged with one count of third-degree criminal sexual conduct. That complaint stemmed from an October 30, 1995 incident involving the victim, J.J.D. J.J.D. alleged that on the day of the offense, Moody and his friend, Brian Woodson, went to J.J.D.'s apartment, which she shared with J.L.S. While the four were in the living room, Moody asked to speak with J.J.D. in private. The two went to the back bedroom, where appellant asked J.J.D. to have sex with him. J.J.D. testified that Moody said, "Well, this is on the G and if you don't do this I'm gonna violate you." Moody is a member of the Gangster Disciples gang, and J.J.D. interpreted that comment, and others made during the incident, to mean that she had to have sex with him because of his gang affiliation, or else she could face physical retribution. Moody put his hands down J.J.D's pants and made more physical advances. J.J.D. tried verbally and physically to resist Moody's sexual advances and purposefully kept her voice low to avoid attention from Woodson, also a member of the Gangster Disciples. She was unsuccessful, and sexual penetration occurred.

J.J.D. reported the incident and on April 8, 1995, a jury convicted Moody of third-degree criminal sexual conduct. This appeal followed.

D E C I S I O N

Evidentiary rulings rest within the sound discretion of the district court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Specifically, in the admission of evidence of prior convictions, the determination of whether the probative value of the convictions outweighs their prejudicial effect is within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). Absent a clear abuse of discretion, the district court's decision will not be overturned. Id. at 209.

I. Evidence of Gang Affiliation

Moody asserts that the admission of evidence concerning his membership in the Gangster Disciples street gang was highly prejudicial and interfered with his right to a fair trial. He argues that gangs suffer from "poor public image" and that evidence of his gang affiliation caused the jury to assume that he was involved in violent and illegal activities. More specifically, he claims that the evidence constituted impermissible character evidence. He also argues that the evidence was not relevant, and that even if it was, the prejudicial effect of the evidence outweighed its probative value.

Character evidence may not be used to show that the defendant acted in conformity with his character on a specific occasion. Minn. R. Evid. 404 (a) (1994). The reasons for the rule are: (1) to protect the defendant from being convicted simply because of past misdeeds or because he is an undesirable person; (2) to prevent a jury from overvaluing character evidence in assessing guilt for the crime charged; and (3) it would be unfair to require that the defendant answer not only the charges before him, but also to explain his personality or prior acts. State v. Loebach, 310 N.W.2d 58, 63 (Minn. 1981).

In this case, the evidence of Moody's gang affiliation included J.J.D.'s testimony regarding what Moody had said to J.J.D. before and after the incident, as well as a photo of Moody and testimony from Detective Heroff that, based on his experience with gang dress and styles, Moody's hatched right eyebrow indicated membership in the Gangster Disciples. J.J.D. testified about the semantics Moody had used in coercing her to engage in sex. After asking her to have sex, J.J.D. testified that Moody said, "Well, this is on the G and if you don't do this I'm gonna violate you." J.J.D. stated that she understood "on the G" to mean that "you have to do it because, you know, a folks is telling me to do it." She defined "G" as referring to the Gangster Disciples and a "folks" as a member of the gang. She also stated that "violating" meant that Moody could "do whatever he wanted. That can mean beating me up, you know, anything that he wanted." J.J.D. further testified that a friend of hers had been "violated" by having a cigarette lighter held to her chest, leaving burn marks all over her breasts. J.J.D., at the time of trial, had a Gangster Disciples tattoo on her arm. J.J.D. testified that before the incident, Moody told her that the tattoo meant she was branded and had to do whatever he said because of his higher rank. When Moody left the bedroom after the sexual assault, J.J.D. testified that Moody said, "Thanks, folks," which again implied gang affiliation involvement.

This gang affiliation evidence was not presented to show that Moody acted in conformity with his character in the commission of the crime; rather, the evidence was presented to support a crucial element of the crime. Third-degree sexual conduct is defined as sexual penetration in which the actor used force or coercion to accomplish the penetration. Minn. Stat. § 609.344 subd. 1 (c) (1994). J.J.D.'s testimony was relevant to understanding why J.J.D. felt coerced into sexual intercourse, and Detective Heroff's testimony regarding the eyebrow hatching was corroborative. In particular, the testimony regarding gang terminology was crucial for the jury to better grasp what happened in J.J.D.'s bedroom.

The supreme court has held that while evidence of gang affiliation may be prejudicial, it is not automatically inadmissible. State v. Carlson, 268 N.W.2d 553, 559 (Minn. 1978). Probative value and prejudicial effect of gang affiliation evidence are to be weighed by the court to determine admissibility. The district court did not abuse its discretion in finding that the probative value of the gang affiliation evidence outweighed any prejudicial effect to the defendant.

II. Prior Convictions

Moody also challenges his conviction because of the admission of evidence of four prior controlled substance convictions for impeachment purposes. He argues that the convictions were not probative as to his credibility and that they were highly prejudicial. Evidence of prior convictions may be admitted to attack the credibility of a witness only if the crime (1) was punishable by death or imprisonment in excess of one year, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment. Minn. R. Evid. 609 (a). The supreme court has outlined five factors to be used in weighing probative value and prejudicial effect of a prior conviction: (1) the impeachment value of the prior conviction; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime to 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, 538 (Minn. 1978). Moody asserts that because the convictions did not directly involve honesty or false statements, they have no impeachment value, particularly because there were five other offenses directly involving falsity that were additionally admitted to impeach him. However, Rule 609 clearly permits the admission of other convictions for impeachment. The supreme court has stated that "the fact that a prior conviction did not directly involve truth or falsity does not mean it has no impeachment value," noting that the use of a prior conviction for impeachment aids the jury by allowing it to see the "whole person." State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).

In the instant case, evidence of prior convictions were not "unfairly emphasized or elaborated on by the prosecution." See State v. Amos, 347 N.W.2d 498, 503 (Minn. 1984). The state only asked Moody if he had been convicted of each of the four controlled substance offenses and then mentioned the convictions in its closing. There was a lack of similarity between the prior convictions and the charged offense, which necessarily muted any prejudicial effect. Most importantly, this case involved an incident witnessed by only two people, making the credibility of each a central question.

In light of the probative value of the evidence of prior convictions, we conclude that the district court did not abuse its discretion.

Affirmed.