Hubert H. Humphrey, III, Attorney General, Todd P. Zettler, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street N.W., P.O. Box 1653, Bemidji, MN 56601 (for respondent)

Considered and decided by Toussaint, Chief Judge, Short, Judge, and Schultz, Judge.[*]

A jury convicted Jack Dynell Lussier of second-degree burglary and fifth-degree controlled substance offense in violation of Minn. Stat. §§ 609.582, subd. 2(a), and 152.025, subd. 2(1) (1996). On appeal from a denial of postconviction relief, Lussier argues: (1) the evidence was insufficient to sustain his convictions; and (2) he is entitled to a new trial because his constitutional rights to a fair trial and effective assistance of counsel were denied. We affirm Lussier's burglary conviction, but reverse his conviction for the controlled substance offense.

Lussier argues his convictions for burglary and possession of a controlled substance are founded on insufficient evidence. After a careful review of the record, we conclude there is ample evidence to support Lussier's second-degree burglary conviction. However, the record demonstrates: (1) the controlled substance charge arose from Lussier's possession of a prescription bottle of pills, which the burglary victim believed to contain Tylenol 3; (2) the arresting officer testified that Tylenol 3 contains codeine, a controlled substance; (3) the prescription bottle was no longer labeled; (4) the victim was unable to identify the bottle positively; and (5) the state failed to test the pills to determine whether they were, in fact, Tylenol 3. Given this evidence, a jury could not reasonably conclude Lussier was guilty of fifth-degree possession of a controlled substance. See Minn. Stat. §§ 152.025, subd. 2(1), 152.02, subd. 3(1)(a) (1996) (proscribing unlawful possession of codeine). Therefore, we reverse Lussier's conviction on the controlled substance offense.

Lussier also argues the trial court abused its discretion in admitting, for the purpose of impeachment, evidence of Lussier's six prior convictions. Because Lussier's testimony regarding the alleged crimes was important to the jury's resolution of the issues, his credibility on the witness stand was critical. See State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978) (directing consideration of impeachment value of prior convictions, time lapse between offenses, similarity of past crime to charged crime, importance of defendant's testimony, and centrality of credibility issue, in determining admissibility of prior convictions). Furthermore, the evidence of Lussier's prior burglary, arms possession, and theft-related convictions has legitimate impeachment value. See State v. Ford, 381 N.W.2d 30, 31-32 (Minn. App. 1986) (concluding evidence of defendant's convictions for burglary and armed robbery permitted jury to see defendant as a whole person), review denied (Minn. Mar. 27, 1986). Under these circumstances, the trial court's admission of evidence regarding the convictions did not constitute an abuse of discretion. See State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (refusing to disturb trial court's ruling on admissibility of prior convictions absent clear abuse of discretion).

Lussier further argues he was denied his right to effective assistance of counsel by his attorney's failure to call particular witnesses

and to object to certain statements by the prosecutor. However, defense counsel's exercise of tactical judgment will not support a claim of ineffective assistance. State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988); see State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990) (recognizing choice of witnesses lies in counsel's discretion). Moreover, Lussier failed to demonstrate that the claimed errors affected the outcome at trial. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (requiring defendant claiming ineffective assistance to show reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different).

Lussier finally argues the prosecutor committed prejudicial misconduct in: (1) introducing evidence of Lussier's marijuana possession despite his agreement not to raise the issue; (2) eliciting from a police officer testimony that Lussier had invoked his right to counsel when questioned by police; (3) attempting to create an inference that two items, which the victim had not reported stolen, might have been stolen; and (4) implying in closing argument that Lussier concocted his testimony. Although the defense failed to object to the prosecutor's conduct, we may review the record for plain error. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (noting defendant's failure to object ordinarily forfeits issue on appeal); State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (permitting appellate court to reverse for prejudicial plain errors to which defendant failed to object in trial).

After a careful review of the record, we conclude Lussier has failed to explain how, in the absence of prosecutorial misconduct, he would have prevailed in the face of evidence that: (1) police found Lussier in possession of the stolen property immediately after the burglary; (2) shoe prints matching Lussier's were present at the scene of the burglary; and (3) when police found him, Lussier had pocketed or repackaged the stolen items, which he claimed to have found in a paper bag. Given the weight of the evidence, any misconduct by the prosecutor was harmless beyond a reasonable doubt. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (requiring reversal for serious prosecutorial misconduct unless harmless beyond a reasonable doubt).

Affirmed in part and reversed in part.

[ ] ^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.