State of Minnesota, Respondent, vs. Earley Romero Blevins, Appellant.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. Â§ 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Earley Romero Blevins,
Filed July 8, 2013
Hennepin County District Court
File No. 27-CR-12-5424
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Peterson, Judge; and Smith,
Appellant Earley Romero Blevins challenges his conviction of aiding and abetting
first-degree aggravated robbery, contending that (1) the evidence was insufficient to
support the conviction, (2) the district court abused its discretion in allowing the state to
impeach him with evidence of seven prior convictions, and (3) the district court erred in
failing to give the jury a cautionary instruction when the prior-conviction evidence was
introduced. Because sufficient evidence supports the conviction, no abuse of discretion
occurred in admitting the prior-conviction evidence, and the district courtâs error in
omitting the cautionary instruction did not prejudice Blevinsâs substantial rights, we
On the evening of February 21, 2012, H.K. was getting off a bus in Minneapolis
when he saw two men who had harassed him in the past. Three days before, the men had
pushed H.K. into traffic while he was waiting for a bus. H.K. had never spoken to the
men except for some âtrash talk.â The men were later identified as Maurice Giles and
As H.K. got off the bus, Giles yelled, âhey, are you looking at me[?]â H.K.
testified that he normally ignored such taunts, âbut it happened so many times, [he] got
kind of fed up and just turned around.â With a retractable baton in his hand, H.K. faced
the two men and began retreating into a parking lot. The men advanced and when they
got close enough to touch H.K., Blevins reached around Giles and punched H.K. in the
Giles and Blevins then took turns âcoming atâ H.K., striking him several times in
the face and torso.
H.K. unsuccessfully attempted to fight the men off and they
eventually knocked him to the ground. Blevins then sat on top of H.K., took H.K.âs
wallet out of his hip pocket, and handed it to Giles. Blevins and Giles argued about the
wallet, which contained no money, and Giles eventually put the wallet back in H.K.âs
pocket without taking anything.
Several bystanders saw the fight and called 911, and police quickly arrested Giles
and Blevins. Hennepin County charged Blevins with one count of aiding and abetting
first-degree aggravated robbery.
Two witnesses who observed the fight testified at trial that they saw Blevins
searching H.K.âs pockets. Blevins testified in his own defense, and the district court
allowed the state to impeach him with evidence of seven prior convictions. Blevins
testified that he hit H.K. and that âa fight ensued.â He admitted that he âwent through
[H.K.âs] pockets,â but stated that he did not take anything and that he did not intend to
The jury found Blevins guilty and the district court sentenced him to 129 months
in prison, the presumptive sentence for a person with Blevinsâs extensive criminal
history. Blevins appealed.
I. Sufficiency of the Evidence
Blevins first argues that the evidence was insufficient to convict him of firstdegree aggravated robbery because he did not intend to rob H.K. Because the state need
not show that Blevins intended to commit a robbery before the fight began, this argument
is without merit.
In analyzing the sufficiency of the evidence, âwe conduct a painstaking review of
the record to determine whether the evidence and reasonable inferences drawn therefrom,
viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach
its verdict.â State v. Nissalke, 801 N.W.2d 82, 108 (Minn. 2011) (quotation omitted).
â[W]e will not disturb a guilty verdict if the jury, acting with due regard for the
presumption of innocence and for the necessity of overcoming it by proof beyond a
reasonable doubt, could reasonably conclude that [the] defendant was proven guilty of
the offense charged.â Id. (quotation omitted).
Blevins was convicted of aggravated robbery under Minnesota Statutes section
609.245, subdivision 1 (2010), which provides that whoever âinflicts bodily harm upon
anotherâ while committing a robbery is guilty of first-degree aggravated robbery. A
robbery occurs when
[w]hoever, having knowledge of not being entitled thereto,
takes personal property from the person or in the presence of
another and uses or threatens the imminent use of force
against any person to overcome the personâs resistance or
powers of resistance to, or to compel acquiescence in, the
taking or carrying away of the property . . . .
Minn. Stat. Â§ 609.24 (2010). The parties do not dispute that Blevins inflicted bodily
harm upon H.K. sufficient to support the aggravated charge.
Blevins argues that the evidence was insufficient to show that he âused force
against [H.K.] with the purpose of taking any property from himâ because â[t]he removal
of [H.K.âs] wallet was an afterthought, and not the impetus for the encounter.â Section
609.24 does not require, however, that the defendant intend to take property from the
victim before he uses or threatens force. Rather, the statute only requires the state to
prove that the defendant had the âpurposeful or conscious desire to bring about a criminal
resultâ to support a robbery charge. State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983);
see also State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981) (holding that the robbery
statute âdoes not require that the use of force or threats actually precede or accompany
Viewing the evidence and testimony in the light most favorable to the verdict, the
jury could reasonably conclude that Blevins took H.K.âs wallet knowing that he was not
entitled to it and used force to compel H.K.âs acquiescence in the taking. Even though
Blevins may not have intended to take anything from H.K. when the altercation began,
and did not keep the wallet, he did reach into H.K.âs pocket and take the wallet, knowing
it did not belong to him. Thus, he purposefully brought about the criminal result. See
Charlton, 338 N.W.2d at 30.
The evidence is therefore sufficient to support the
Blevins next argues that the district court abused its discretion in allowing the state
to impeach him with evidence of seven of his 16 prior convictions. Because no abuse of
discretion occurred, we affirm.
We review the district courtâs decision on impeachment of a defendant with prior
convictions for an abuse of discretion. State v. Hill, 801 N.W.2d 646, 651 (Minn. 2011).
Under Minnesota law, evidence of a previous conviction is admissible to impeach a
defendantâs credibility if the crime was a felony âand the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect,â or if the
crime âinvolved dishonesty or false statement, regardless of the punishment.â Minn. R.
Evid. 609(a). In addition, the previous conviction must be less than 10 years old unless
the court determines, âin the interests of justice,â that the probative value of an older
conviction outweighs its prejudicial effect. Minn. R. Evid. 609(b).
The district court admitted evidence of two crimes of dishonesty: gross
misdemeanor false information to police from 1997 and misdemeanor false information
to police from 2000. The district court also admitted five prior felony convictions not
involving dishonesty: 2003 fourth-degree assault, 2003 sale of a simulated control
substance (two convictions), 2005 theft from person, and 2008 felon in possession of a
In exercising discretion under rule 609(a), courts consider the following factors:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendantâs 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 the
defendantâs testimony, and (5) the centrality of the credibility
State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
Lack of Findings
Blevins first argues that the district court erred in admitting the 2005 theft-fromperson conviction and the 2008 felon-in-possession conviction because it did not make
particularized findings on the Jones factors for those convictions. On-the-record findings
are a prerequisite to the admission of prior convictions. State v. Swanson, 707 N.W.2d
645, 655 (Minn. 2006).
The district court adequately demonstrated on the record that it considered the
Jones factors for all of the admitted convictions.
While the district court did not
specifically analyze each factor for the 2005 and 2008 convictions, it referred back to its
ruling on the earlier convictions on factors one, two, four, and five, which are essentially
the same for all of the convictions, and discussed the third factor separately.
therefore conclude that the district court made adequate findings on the Jones factors for
all of the prior convictions.
Under the first Jones factor, any prior conviction that allows the fact-finder to see
the âwhole personâ to âjudge better the truth of his testimonyâ has impeachment value.
Hill, 801 N.W.2d at 651 (quotations omitted). The district court correctly found that the
two convictions for false information to police had impeachment valueâthese are clearly
crimes of dishonesty that are probative of Blevinsâs credibility and are admissible under
rule 609(a)(2). The other felony convictions also have impeachment value, as they
reflect Blevinsâs pattern of criminal activity and âgeneral lack of respect for the law.â Id.
Blevins argues that the sheer quantity of the admitted convictions amounts to an
abuse of discretion.
We are unpersuaded by this argument because the string of
convictions show Blevinsâs âpattern of lawlessnessâ and all of the convictions together
are probative of his credibility. See State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007)
(âWe consider recent convictions to have more probative value than older ones, and
recent convictions can enhance the probative value of older convictions by placing them
within a pattern of lawlessness, indicating that the relevance of the older convictions has
not faded with time.â). The first Jones factor therefore weighs in favor of admission.
Date of Convictions
The district court admitted evidence of two false-information-to-police convictions
outside of the 10-year time limit. These older convictions are still admissible, however,
if the district court finds that their probative value outweighs any prejudice. Minn. R.
Evid. 609(b). Here, the district court properly found that these âare clearly crimes of
dishonesty and would be very relevant . . . and are not outweighed by any unfair
prejudice to the defendant.â The other five convictions were within rule 609(b)âs 10-year
time limit. The second Jones factor thus weighs in favor of admission.
Similarity of Past Crimes to Charged Crime
Under the third Jones factor, the greater the similarity between the charged crime
and the past crime, âthe greater the reason for not permitting use of the prior crime to
impeach.â Jones, 271 N.W.2d at 538. This factor addresses the concern that the jury
may improperly use the evidence of the past crimes as substantive evidence of the
defendantâs guilt on the current charge. State v. Bettin, 295 N.W.2d 542, 546 (Minn.
The district court found that all of Blevinsâs past convictions were dissimilar to the
charged crime, with the exception of the 2005 theft-from-person conviction. To erase
any similarity concerns, however, the district court âsanitizedâ that conviction and
ordered the parties to refer to it at trial only as an unspecified felony conviction. This
ruling was within the district courtâs discretion. Hill, 801 N.W.2d at 652â53 (âIf a court
finds that the prejudicial effect of disclosing the nature of a felony conviction outweighs
its probative value, then it may still allow a party to impeach a witness with an
unspecified felony conviction if the use of the unspecified conviction satisfies the
balancing test of Rule 609(a)(1).â). The third Jones factor weighs in favor of admission
of the prior convictions.
Importance of Defendantâs Testimony
If the admission of prior convictions will prevent the jury from hearing a
defendantâs version of events, the fourth Jones factor generally weighs against admission.
State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993); see also Bettin, 295 N.W.2d at 546.
The district court found that Blevinsâs testimony was not particularly important because
other witnesses testified that Blevins took H.K.âs wallet, a point he did not dispute. This
finding is not clearly erroneous and the admission of the prior convictions did not
ultimately prevent Blevins from testifying. Thus, the fourth Jones factor weighs in favor
Centrality of Credibility
Concerning the fifth Jones factor, âif the issue for the jury narrows to a choice
between defendantâs credibility and that of one other personâthen a greater case can be
made for admitting the impeachment evidence, because the need for the evidence is
greater.â Bettin, 295 N.W.2d at 546; see also Swanson, 707 N.W.2d at 655â56. This
case did not come down to Blevinsâs word versus that of another witness. Rather,
Blevins did not dispute that he took H.K.âs wallet out of his pocket. This factor therefore
weighs against admission of the prior convictions.
Considering all of the Jones factors, we conclude that the district court did not
abuse its discretion in determining that the probative value of Blevinsâs seven prior
convictions outweighed their prejudicial effect. The district court did not err in allowing
the state to impeach Blevins with evidence of those convictions.
Finally, Blevins contends that the district court erred by failing to give the jury a
cautionary instruction when the prior convictions were admitted. Blevins did not object
to the failure to give the instruction at trial, and we therefore apply plain-error review.
State v. Irby, 820 N.W.2d 30, 38 (Minn. App. 2012), review granted on other grounds
(Minn. Nov. 20, 2012). âUnder plain error analysis, we must determine whether there
was error, that was plain, and that affected the defendantâs substantial rights.â State v.
Kuhlmann, 806 N.W.2d 844, 852 (Minn. 2011).
This court recently held that the failure to sua sponte provide a cautionary
instruction when admitting prior-conviction evidence is plain error, but âdoes not
prejudice a defendantâs substantial rights if the district court provides a limiting
instruction . . . to the jury at the end of the trial and the state makes little use of the
evidence.â Irby, 820 N.W.2d at 38 (alteration in original) (quotation omitted).
Thus, the district court plainly erred in not giving the instruction sua sponte when
Blevins testified about his prior convictions. This error did not, however, prejudice
Blevins because the district court gave a limiting instruction at the end of trial. Further,
the record reflects that the state did not heavily emphasize Blevinsâs prior convictions. In
closing argument, the prosecutor even reminded the jury that they were to defer to the
district courtâs instructions on the proper use of the prior-conviction evidence for
impeachment purposes only.
The district courtâs error in omitting a cautionary
instruction during trial did not affect Blevinsâs substantial rights.