This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Stephan Laron Westlund,
Filed August 20, 2012
Ramsey County District Court
File No. 62-CR-09-18082
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Ted Sampsell-Jones, Special Assistant Public Defender, Eliot Wyse, Certified Student
Attorney, St. Paul, Minnesota (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, arguing that the district court abused its discretion by ruling that evidence of
appellant’s prior felony domestic-assault conviction was admissible as impeachment
evidence and by sentencing appellant to the upper end of the presumptive sentence range.
Because we conclude that the district court’s Jones-factors analysis supports admission of
the prior conviction, and the district court did not abuse its discretion by imposing a
guidelines sentence, we affirm.
A jury found appellant Stephan Laron Westlund guilty of two counts of aiding and
abetting first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1
(2008), as a result of appellant’s participation in a robbery that occurred in December
2009. The robbery occurred when three men, wearing makeshift masks, exited a darkcolored SUV and approached a car containing a driver and a passenger, which was
parked outside a St. Paul residence. One of the men approached the passenger side of the
car, carrying a gun. The second man, who also had a gun, approached the driver’s side
and hit the driver repeatedly in the face with the gun. The third man moved around in
various locations. The men committing the robbery took two cell phones and a laptop
from the car’s occupants. They then ran off and drove away in the SUV.
Both the driver and the passenger identified appellant as the person who hit the
driver with the gun. The passenger testified that he reached over and started honking the
horn to get attention, and appellant grabbed his hand, but he then grabbed appellant’s
sleeve to pull him in. The driver testified that as appellant was hitting him with the gun,
and the passenger was pulling on appellant, the bandana covering appellant’s face slipped
off. The driver also testified that appellant wore a distinctive patterned sweatshirt.
Within a short time, police were able to track the passenger’s cell phone to an
apartment building, where they found a maroon SUV, which felt warm as though it had
recently been driven. With permission, they searched an apartment in the building and
recovered the passenger’s cell phone, the laptop, and a BB gun that was a replica of a
large-caliber revolver. Appellant and two other men, E.B. and L.B., were present in the
When appellant was taken into custody, he was wearing a patterned
sweatshirt with bloodstains on the sleeves; a DNA sample from one of the stains matched
the driver’s DNA.
E.B., who pleaded guilty to charges arising from the robbery, testified for the
prosecution that appellant was present in the SUV but did not participate in the robbery.
E.B. testified that it was another man, P.C., who approached the driver’s side of the car
during the robbery; that appellant “kind of just hopped into the vehicle after everything
was already done with”; and that appellant must have come from a nearby house. He
testified that appellant told him he had hit somebody, but he thought appellant was “just
lying to just try to sound cool.” P.C. testified for the prosecution that he knew the other
men, but he was not involved in the robbery and was spending time that week with his
family, who were visiting from California.
The driver testified that he did not remember telling an investigating officer that
he closed his eyes when he was being hit, but he testified at trial that his eyes had not
been closed. Another investigating officer testified that the passenger stated that when he
had a gun pointed at his face, he turned away because he did not want to be staring down
the barrel of a gun. The driver testified that he had never seen P.C. before the trial.
Over defense objection, the state sought to impeach appellant with evidence of his
2010 conviction for felony domestic assault. The district court stated:
I have given this quite a bit of consideration and done
quite a bit of thinking and research about it. And the Jones
factors, of course, are the impeachment value of the prior
conviction, date of the conviction and the [d]efendant’s
subsequent history, similarity of the prior conviction to the
current charges, the importance of the [d]efendant’s
testimony, and the centrality of the credibility issue.
I think the impeachment value goes to the whole
person and the ability of the jury to see the whole person.
And I am going to allow the felony conviction to be used for
impeachment purposes based on my assessment that it is
important for the jury to see the whole person. This is part of
The prior conviction and subsequent history. The
unfortunate part, of course, is that this did happen after the
charged offense . . . .
It also cuts both ways. And the fact that it did happen
afterwards is of concern and, I think, makes it more likely for
it to come in. It is not similar to the charged crime. I believe
that there is also the—the credibility issue here I don't think is
central in this assessment.
So for all those reasons I am granting the State’s
request to have the prior—the conviction to be used for
Appellant testified on his own behalf that he was present in the SUV, but that the
other men planned and carried out the robbery. He testified that, as the men were all
waiting in the SUV to purchase marijuana, L.B. and P.C. suddenly pulled out weapons
and masks and ran over to the car. Appellant acknowledged that the driver’s blood was
on his sweatshirt but testified that after P.C. hit the driver, he intervened to help the
The jury found appellant guilty of both counts. At sentencing, the state requested
69 months, the high end of the presumptive guidelines sentence. The defense requested
58 months, the middle of the guidelines-sentence range. The state argued that appellant
failed to take responsibility for his actions and made up a story to place blame on P.C.
and change the facts to his benefit. The defense argued that appellant should not be
punished for choosing to go to trial. The district court, without additional comment,
sentenced appellant to 69 months, the top of the presumptive sentence for his offense.
This appeal follows.
Appellant challenges the district court’s admission of his 2010 domestic-assault
conviction for impeachment purposes. When ten or fewer years have elapsed since a
felony conviction, evidence of the conviction may be admitted for impeachment
purposes, provided that the probative value of the evidence outweighs its prejudicial
effect. Minn. R. Evid. 609(a)(1), (b). “We review a district court’s decision to admit
evidence of a defendant’s prior convictions for an abuse of discretion.” State v. Williams,
771 N.W.2d 514, 518 (Minn. 2009). In determining whether the probative value of the
evidence outweighs its prejudicial effect, a district court 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 (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
State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (quoting State v. Jones, 271 N.W.2d
534, 538 (Minn. 1978)).
Impeachment value of prior conviction
Appellant argues that the domestic-assault conviction had minimal impeachment
value because it did not involve dishonesty. But a prior crime need not directly involve
truth or falsity to have impeachment value. State v. Gassler, 505 N.W.2d 62, 67 (Minn.
1993). The Minnesota Supreme Court has concluded that “impeachment by prior crime
aids the jury by allowing it to see ‘the whole person’” and better judge credibility because
“abiding and repeated contempt for laws [that one] is legally and morally bound to obey”
demonstrates a lack of trustworthiness. State v. Brouillette, 286 N.W.2d 702, 707 (Minn.
1979) (quotations omitted). Appellant also challenges the application of this rule on
policy grounds. But the supreme court has recently affirmed that “any felony conviction
is probative of a witness’s credibility.” State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011).
It is not this court’s role to review supreme court decisions. State v. Ward, 580 N.W.2d
67, 74 (Minn. App. 1998); see Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)
(stating that “[t]he function of the court of appeals is limited to identifying errors and
then correcting them”). We conclude that the district court properly determined that the
impeachment value of the crime favored its admission.
Date of conviction and subsequent history
A prior conviction is admissible if the offense for which the defendant is on trial
occurred within ten years after the prior conviction. Minn. R. Evid. 609(b). The supreme
court has stated that “recent convictions [are considered] to have more probative value
than older ones.”
State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007).
principles regarding admissibility apply to convictions occurring before the charged
offense and those occurring after the charged offense. Cf. State v. Kennedy, 585 N.W.2d
385, 390 (Minn. 1998) (concluding that evidence of subsequent crimes may be admitted
as Spreigl evidence for proper purpose).
Because the domestic-assault conviction
occurred in 2010, we agree with the district court that this factor favors admissibility.
Similarity of crime to charged offense
“[I]f the prior conviction is similar to the charged crime, there is a heightened
danger that the jury will use the evidence not only for impeachment purposes, but also
substantively.” Gassler, 505 N.W.2d at 67. Appellant challenges the district court’s
determination on this Jones factor, arguing that the domestic-assault conviction and the
current aggravated-robbery offense were similar because they were both crimes of
violence. The mere fact that both crimes were violent is insufficient to demonstrate their
similarity for the purpose of a Jones-factor analysis. But we nonetheless conclude that
the crimes were similar because they both require the commission of an assault. See
Minn. Stat. § 609.24 (Minn. 2008) (noting element of robbery that a person “uses or
threatens the imminent use of force against any person to overcome the person’s
resistance or powers of resistance”); State v. Swanson, 707 N.W.2d 645, 655 (Minn.
2006) (concluding that factor of similarity of crimes weighed against admissibility
because past assault convictions were similar to charged offense of murder). Therefore,
this factor weighs against admissibility.
Importance of defendant’s testimony and centrality of credibility
The fourth and fifth Jones factors are often considered together. Swanson, 707
N.W.2d at 655. “If credibility is a central issue in the case, the fourth and fifth Jones
factors weigh in favor of admission of the prior convictions.” State v. Pendleton, 725
N.W.2d 717, 729 (Minn. 2007) (quotation omitted).
Appellant and E.B. denied
appellant’s participation in the robbery, which contradicted the driver’s and passenger’s
version of events. As to the fourth Jones factor, appellant argues that admission of his
prior conviction could have led to his failure to testify, preventing the jury from hearing
his version of events. See Gassler, 505 N.W.2d at 67 (stating that if the admission of a
prior conviction would prevent a jury from hearing a defendant’s version of events, and
that testimony is important to the jury’s determination, this factor weighs against
admission). But even had appellant chosen not to testify, the jury in fact heard his theory
of the defense—that P.C., not appellant, was involved in the robbery—through E.B.’s
Appellant also argues that the district court misapplied the fifth Jones factor
because it ruled the prior conviction admissible, despite the district court’s statement that
“the credibility issue here I don’t think is central in this assessment.” We agree that this
statement is confusing. But because it was important for the jury to evaluate appellant’s
credibility as weighed against the credibility of other witnesses, the need for evidence of
appellant’s prior conviction was great. See e.g., Pendleton, 725 N.W.2d at 729 (stating
that “[c]redibility was critical” when defendant’s defense contradicted consistent story of
state’s witnesses, evidence of DNA found on shirt near crime, and additional inculpatory
evidence). We conclude that, to the extent that the district court may have misstated its
analysis on this factor, such a misstatement did not affect the district court’s overall
determination of admissibility. See State v. Hochstein, 623 N.W.2d 617, 625 (Minn.
App. 2001) (stating that in Jones-factor analysis, the “[district] court is not simply to add
up the factors and arrive at a mathematical result” and that “[d]epending on the particular
facts of the case, the [district] court may assign different weights to different factors”).
We conclude that, because four of the Jones factors favor admitting evidence of
the conviction and only one factor weighs against admissibility, the district court did not
abuse its discretion by concluding that appellant’s prior domestic-assault conviction was
admissible for impeachment purposes.
Appellant argues that the district court abused its discretion by sentencing him to
the high end of the presumptive guidelines sentence range. This court reviews a district
court’s sentencing decision for an abuse of discretion. State v. Franklin, 604 N.W.2d 79,
82 (Minn. 2000). A reviewing court rarely reverses the imposition of a presumptive
sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The district court sentenced appellant to a 69-month executed sentence, the top of
the guidelines range for his offense and criminal-history score. Any sentence within the
presumptive guidelines range does not amount to a departure and is generally not subject
to appellate review. State v. Delk, 781 N.W.2d 426, 428–29 (Minn. App. 2010), review
denied (Minn. July 20, 2010). And a district court need not provide reasons to support
the imposition of a presumptive sentence. Minn. Sent. Guidelines II.C, D (2009); see
State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984) (concluding that district court
must consider mitigating factors if they exist, but is not required to depart downward
even if mitigating factors are shown).
Appellant argues that the district court erred because it impermissibly imposed a
lengthy sentence based on appellant’s exercise of his constitutional right to testify,
relying on United States v. Dunnigan, 507 U.S. 87, 96–97, 113 S. Ct. 1111, 1117–18
(1993). In Dunnigan, the United States Supreme Court articulated a “concern that courts
will enhance sentences as a matter of course whenever the accused takes the stand and is
found guilty” and concluded that if a court imposes an increased sentence based on
perjured testimony, the court must make findings that support all of the elements of a
perjury violation. Id. at 96–97, 113 S. Ct. at 1118.
But Dunnigan is inapposite because the record does not show that the district court
imposed a greater sentence based on appellant’s testimony. At sentencing, the state
sought a sentence at the high end of the guidelines range, maintaining that appellant
failed to take responsibility for his actions; made up a story to place the blame on P.C., an
innocent party; and attempted to change the facts to benefit his position. The defense
argued in response that appellant should not be punished for exercising his right to
testify. But the district court did not refer to either of these arguments when sentencing
appellant. Appellant’s sentence was within the presumptive guidelines range, and the
district court was not required to furnish its reasons for imposing a guidelines sentence.
Delk, 781 N.W.2d at 428–29.
We also note that the record contains the driver’s
testimony that appellant hit him in the face six or seven times with a gun, which amply
supports the district court’s decision to impose a sentence at the top of the presumptiveguidelines range.