Opinion
No. C6-98-2239.
Filed September 7, 1999.
Appeal from the District Court, Pennington County, File No. K6 98 417.
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, and David M. Olin, Pennington County Attorney, (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Ralph Isaak appeals his conviction for one count of terroristic threats. He alleges the trial court abused its discretion when it allowed the state to impeach his credibility with his prior felony conviction of a pattern of harassing conduct without explicitly finding that the probative value of the conviction outweighed its prejudicial effect. Because we conclude the trial court did not abuse its discretion in admitting evidence of the prior felony, we affirm.
FACTS
Appellant Ralph Isaak and Shannon Fitzloff were close friends. Following an incident of abusive behavior by Isaak towards one of his sons, Isaak's wife and four sons moved in with Fitzloff and his family. Subsequently, tension developed between Isaak and Fitzloff.
On June 26, 1998, Isaak called Fitzloff on the phone. Isaak sarcastically asked him, "how the big Christian was doing." Fitzloff said it was a "daily walk," but that he was doing okay. Isaak asked Fitzloff how he could sleep at night, and Fitzloff said that he slept very well. Isaak asked Fitzloff to come out to his farm. Fitzloff laughed because he knew that Isaak was trying to get him out to the farm to fight him. Fitzloff told Isaak to come to town and he would fight him. Isaak was very angry at this point and called Fitzloff a "chicken sh-t" and told him that if Fitzloff came to the farm, Isaak would "beat [him] within an inch of [his] life."
Fitzloff testified that near the end of the conversation, Isaak threatened him. Isaak told him that Fitzloff was "on his hit list and that he was going to hunt [Fitzloff] down and blow [his] f — king head off [his] shoulders." Fitzloff testified he was frightened and told Isaak not to blame him for the breakup of his marriage and to start taking responsibility. Isaak hung up on Fitzloff.
Isaak's testimony regarding the June 26 phone conversation was essentially consistent with Fitzloff's testimony. Isaak, however, added that Fitzloff told him that Isaak's wife and sons were never coming home. Isaak asked Fitzloff why he was hassling him and told him to come to the farm and hassle him instead of hiding behind the phone. Isaak denied telling Fitzloff he was on his list and denied threatening to shoot Fitzloff.
As a result of the June 26 phone call, Isaak was charged with and tried for one count of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996). Prior to trial, the state notified Isaak's counsel that it intended to offer evidence relating to Isaak's July 11, 1995 felony conviction for a pattern of harassing conduct.
At trial, the state moved the court for an order allowing it to impeach Isaak with his July 11 felony conviction if Isaak chose to testify. Isaak objected because he had pleaded guilty to a gross misdemeanor, not a felony, and did not have a felony conviction on his record. The trial court ruled that Isaak's prior conviction was admissible and allowed the state to impeach Isaak with his July 11, 1995 conviction. It reasoned that, regardless of Isaak's plea bargain and sentence, Isaak was convicted under the statute and the statute defined the conduct as a felony. The trial court did not make any other findings on the record as to the factors considered and the reasons for admitting the evidence.
The jury convicted Isaak of one count of terroristic threats. This appeal followed.
DECISION
Isaak argues the trial court erred in allowing the prosecutor to impeach him with his prior conviction for a pattern of harassing conduct because the probative value of the evidence was outweighed by its prejudicial effect, and the trial court did not indicate on the record that it considered these factors.
Impeachment by prior conviction is governed by Minn.R.Evid. 609. It states:
[E]vidence that [a defendant] has been convicted of a crime shall be admitted only if the crime (1) was punishable by * * * imprisonment in excess of one year under the law under which [the defendant] was convicted, 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). Under section (a)(1) of this rule, prior felony convictions not involving dishonesty or false statements are admissible if the court determines their probative value is greater than their prejudicial effect. The trial court's determination on the subject "will be sustained unless a clear abuse of discretion is shown." State v. Amos , 347 N.W.2d 498, 502 (Minn. 1984) (citation omitted).
Balancing probative value and prejudice under rule 609 is governed by the five-factor analysis described in State v. Jones , 271 N.W.2d 534 (Minn. 1978). These factors are:
(1) the impeachment value of the prior crime, (2) the date of the conviction and 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.
Id. at 537-38; see also State v. Ihnot , 575 N.W.2d 581, 586 (Minn. 1998) (reaffirming the Jones factors).
Isaak correctly points out the trial court should have expressed its consideration of the Jones factors. See State v. Lund , 474 N.W.2d 169, 172 (Minn.App. 1991) (holding "the trial court should demonstrate on the record that it has exercised the discretion accorded by Minn.R.Evid. 609(a)(1) after considering and balancing the factors set forth in [ Jones ]"). The trial court's failure to do so, however, does not automatically require reversal. Id . at 172. If the Jones factors have been met, we will, nevertheless, affirm admission of the evidence. Id.
Isaak contends none of the Jones factors have been met. He argues that his previous conviction for harassing conduct does not bear on his veracity, that it has become stale and lost its probative value, and that it is similar to the current charge, heightening the probability the jury will use the evidence substantively. He also contends that although credibility was a central issue in the case, the state was able to prove Fitzloff was terrorized by the phone call without admission of Isaak's prior conviction. We disagree.
Although the potential for prejudice is greater when the accused in a criminal matter is impeached by past crimes that only indirectly speak to character for truthfulness, Ihnot , 575 N.W.2d at 586, the fact that the prior conviction does not bear directly on veracity does not make it inadmissible. State v. Lloyd , 345 N.W.2d 240, 246-47 (Minn. 1984). Impeachment by a prior crime aids the jury by allowing it to see the "whole person" and to "judge better the truth of his testimony." Ihnot , 575 N.W.2d at 586 (quotation omitted).
Moreover, the amount of time that has passed since Isaak's prior conviction has not substantially diminished the conviction's relevance. Isaak's conviction occurred three years before the current offense and only one year after his probationary period ended. This falls within the ten-year limit established by Minn.R.Evid. 609(b), and is well within the time span our appellate courts have previously affirmed. See, e.g., State v. Bias , 419 N.W.2d 480, 487 (Minn. 1988) (holding the "prior convictions relevance [had] not substantially diminished" when the defendant was released from prison two years before the offense at issue); State v. Upton , 306 N.W.2d 117, 118 (Minn. 1981) (affirming admission of a nine-year-old conviction). Thus, the second Jones factor is satisfied.
We also conclude the third Jones factor was fulfilled. Although Isaak's conviction for a pattern of harassing conduct is similar to the current charge of terroristic threats because both crimes involve conduct that terrorizes the victim, similarity between the prior and charged crimes does not preclude impeachment. See State v. Lloyd , 345 N.W.2d 240, 247 (Minn. 1984). Also, we note our appellate courts have upheld the admission of past convictions more similar to the charged crime than the similarity at issue here. See, e.g., Ihnot , 575 N.W.2d at 586 (affirming admission of a prior conviction for third-degree criminal sexual conduct to impeach defendant in a trial for first-degree criminal sexual conduct); State v. Frank , 364 N.W.2d 398, 399 (Minn. 1985) (upholding the trial court's ruling that, in a trial for first-degree criminal sexual conduct, two other rape convictions were admissible for impeachment purposes).
The fourth Jones factor is also satisfied. The trial court's admission of Isaak's prior conviction did not prevent Isaak from telling the jury his version of the facts. The trial court also cautioned the jury to consider Isaak's prior conviction only as it affected Isaak's credibility and not to consider it as evidence of guilt of the offense for which Isaak was presently on trial. See State v. Skramstad , 433 N.W.2d 449, 453 (Minn.App. 1988) (noting the trial court's cautionary instruction warning the jury not to use testimony of appellant's prior conviction as substantive evidence was a factor in upholding the admission of the evidence), review denied (Minn. Mar. 13, 1989).
The fifth and final Jones factor was also met. Because Isaak and Fitzloff were the only ones who knew what was said during the phone conversation, the issue for the jury narrowed to a choice between Isaak's and Fitzloff's credibility. Given the centrality of the credibility issue and the lack of other direct evidence of the threats, we conclude the trial court did not clearly abuse its discretion by admitting the evidence of Isaak's prior felony conviction. See Ihnot , 575 N.W.2d at 587 (stating when "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") (quotation omitted).