State of Minnesota, Respondent, vs. Leon Pascal Mason, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA IN COURT OF APPEALS C2-02-1952

 

State of Minnesota,
Respondent,
 
vs.
 
Leon Pascal Mason,
Appellant.

 

Filed August 26, 2003

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. KX02706

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In his appeal from a conviction of first-degree aggravated robbery, appellant Leon Pascal Mason argues that the district court abused its discretion by allowing the state to impeach him with his prior conviction of theft from the person.  We affirm. 

FACTS

 

Mason was walking to his girlfriend's house when he heard Freeman Lindsey call his name.  Mason and Lindsey were acquainted, but they were not close friends.   They decided to get some drinks at a bar located on University Avenue in St. Paul.

The victim was at the bar when Mason and Lindsey arrived.  While Mason was using the payphone, Lindsey grabbed two empty glasses from the bar, sat at the victim's table, and poured himself a drink from the victim's pitcher.  Mason joined the victim and Lindsey at the table after using the telephone.  Neither Lindsey nor Mason knew the victim before this encounter.  Lindsey told the victim that they should go to another club.  The victim agreed to go, and the three men left in a car with Lindsey driving, Mason in the front passenger seat, and the victim in the back seat.

Lindsey stopped the car in front of a house three blocks from the bar.  Lindsey said that the house was his cousin's and invited the victim inside.  The victim told Lindsey that he would not go inside because he did not know the place.  Lindsey told the victim to either come inside or get out and walk.  The accounts of what happened next differ. 

According to Mason, Lindsey got out of the car, walked around to the passenger side, tapped on his window, and told him to open the door.  The victim, who was sitting in the back seat, was told to get out of the car.  Mason stayed in the car and moved his seat forward so that the victim could get out.  As the victim got out, Lindsey grabbed him and started punching him.  Lindsey went through the victim's pockets as the two men struggled.  When a car approached, Lindsey threw the victim to the ground, jumped into the driver's seat, and sped away.   

According to Lindsey, Mason grabbed the victim from behind.  While Mason held the victim, Lindsey repeatedly punched the victim in the face.  Lindsey then grabbed the victim's wallet, and the two released the victim and drove off.

The victim testified that as he tried to get out of the back seat, Mason, who had already exited the car, grabbed him and held him while Lindsey hit him many times in the face.  The victim also testified that while Mason held him, Lindsey took his wallet.  Then the two released him and drove off.

The victim went to a nearby gas station and called the police.  Officer Tom Arnold arrived on the scene.  The victim described Mason and Lindsey and provided the last three numbers of the car's license plate.  Arnold went to the bar and questioned its owner.  While at the bar, Arnold heard a dispatch regarding a stolen car with a license-plate number similar to the car the victim described.  The dispatch reported that the car was parked in front of a nearby apartment complex.

Arnold took the victim to the apartment complex.  When they arrived, the victim recognized the car and identified Lindsey as one of the suspects.  The police brought Mason out of the building, and the victim identified him as the second suspect.  Lindsey and Mason were also brought to the bar, where the owner identified them as the two men the victim had left with earlier.  While they drove to the bar, Mason told an officer that Lindsey had robbed the victim.

Mason was charged with first-degree aggravated robbery, in violation of Minn. Stat. §§ 609.245, subd. 1, 609.05 (2000).  He was the only witness who testified on his behalf.  Mason admitted that he was present at the robbery, but denied that he participated in it.  On direct-examination, Mason's attorney introduced two convictions that Mason had for financial-transaction-card fraud in 1994 and for theft from person in 2001.  During cross-examination, the prosecutor stated that Mason had two felony convictions but only identified the 1994 fraud conviction.  The prosecutor did not refer to either conviction during final argument.  The district court cautioned the jury that Mason's prior convictions should be considered only for impeachment purposes.  The jury found Mason guilty of first-degree aggravated robbery.  

D E C I S I O N

 

A prior conviction less than ten years old may be admissible for impeachment purposes if the underlying offense was punishable by imprisonment in excess of one year and its probative value outweighs its prejudicial effect.  Minn. R. Evid. 609(a), (b).  A district court's ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998); State v. James, 638 N.W.2d 205, 210 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).  Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The factors to consider when determining whether probative value outweighs prejudicial effect are

"(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 issue."

 

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). 

 

1.  Impeachment Value

 

In State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (footnote omitted), the supreme court concluded that Minn. R. Evid. 609

clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction though not specifically involving veracity, is nevertheless probative of credibility.

 

The supreme court stated, "Just because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value."  Id. at 707.  The court then explained that

impeachment by prior crime aids the jury by allowing it "to see ‘the whole person' and thus to judge better the truth of his testimony."

 

Id. (quoting City of St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)).  The court explained further:

"The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth.  What a person is often determines whether he should be believed.  When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word.  No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word.  In transactions of everyday life this is probably the first thing that they would wish to know. * * * Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey * * * though the violations are not concerned solely with crimes involving ‘dishonesty and false statement.'"

 

Id. (omissions in original) (quoting State v. Duke, 123 A.2d 745, 746 (1956)).

Mason argues that this "whole person" rationale runs counter to a growing body of knowledge about how a jury actually uses evidence of a prior conviction.  Mason contends that

what "whole person" actually means is "partial person" that is, it allows evidence of bad character with no corresponding ability of the defendant to introduce evidence of his good character.

 

            But knowledge that a jury may improperly use evidence of a prior conviction does not permit us to disregard supreme court precedent.  In Brouillette, the supreme court acknowledged the danger of prior-conviction evidence having an unfairly prejudicial effect.  Id. at 708.  The court concluded, however, that a cautionary instruction "adequately protects defendant against the possibility that the jury would convict him on the basis of his character rather than his guilt."  Id. (citations omitted).

Here, the district court instructed the jury:

In the case of the defendant, you must be especially careful to consider any previous convictions only as it may affect the weight of the defendant's testimony.  You must not consider any previous conviction as evidence of guilt of the offense for which the defendant is on trial.

 

Under Brouillette, Mason's theft-from-person conviction is probative of credibility, and this cautionary instruction provided the required protection against the jury's improper use of the prior-conviction evidence.

 

2.  Date of Conviction and Subsequent History

 

Mason concedes that the timeliness factor weighs in favor of admission because his theft-from-person conviction occurred in 2001, well within the 10-year time limitation.

 

3.  Similarity of Crimes

 

Mason contends that his theft-from-person conviction was substantially similar to the charged offense and argues that this similarity weighed heavily against admission.

The danger when the past crime is similar to the charged crime is that the likelihood is increased that the jury will use the evidence substantively rather than merely for impeachment purposes.

 

State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  The greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.  Jones, 271 N.W.2d at 538.  This factor, however, is not determinative.  Where the other Jones factors are satisfied, Minnesota courts "have been liberal in admitting prior convictions for impeachment even when the prior crime is the same as the crime charged." State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986) (citations omitted); see, e.g., State v. Page, 386 N.W.2d 330, 332, 338-39 (Minn. App. 1986)(prior convictions included attempted felony theft, aggravated robbery, and felony theft; prosecution for aggravated robbery, second-degree assault, third-degree assault, and unauthorized use of motor vehicle), review denied (Minn. June 30, 1986); State v. Ford, 381 N.W.2d 30, 32-33 (Minn. App. 1986) (prior burglary and aggravated-robbery convictions; prosecution for aggravated robbery), review denied (Minn. Mar. 27, 1986); State v. Nunn, 351 N.W.2d 16, 20 (Minn. App. 1984) (prior aggravated-robbery conviction; prosecution for aggravated robbery). 

 

4.  Importance of Appellant's Testimony

 

If the admission of prior convictions prevents a jury from hearing a defendant's version of events, this weighs against admission of the prior convictions.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  Admission of the prior-conviction evidence did not prevent the jury from hearing Mason's version of events; Mason testified.

 

5.  Centrality of Appellant's Credibility

 

[T]he general view is that if the defendant's credibility is the central issue in the casethat is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other personthen a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.

 

Bettin, 295 N.W.2d at 546.  Mason argues that although his credibility was important, it was not crucial because Lindsey's testimony corroborated part of the victim's testimony, and, therefore, the jury did not have to choose between Mason's credibility and the credibility of one other person. 

But even though Lindsey partially corroborated the victim's story, the issue for the jury was whether Mason participated in the robbery, and Mason's testimony that he did not participate contradicted both Lindsey and the victim.  In Bettin, the supreme court stated that a greater case can be made for admitting impeachment evidence when the issue for the jury narrows to a choice between the defendant's credibility and that of one other person; the court did not state that there is no case for admitting impeachment evidence when more than one witness contradicts the defendant's version of events.   The fact that Lindsey and the victim provided testimony that was consistent in some respects did not eliminate Mason's credibility as a central issue when their consistent testimony conflicted with Mason's testimony.

In light of the Jones factors, we conclude that the district court did not abuse its discretion in determining that the probative value of Mason's 2001 theft-from-person conviction outweighs its prejudicial effect and admitting evidence of the conviction.

            In a supplemental pro se brief, Mason claims that his principal brief incorrectly states that he was charged with aiding and abetting first-degree aggravated robbery.  Mason contends that he was charged with, and convicted of, first-degree aggravated robbery.  We agree.  The complaint states:

On or about the 20th day of February, 2002, in Ramsey County, Minnesota, the defendant, LEON PASCAL MASON, JR., aiding and abetting and being aided and abetted by another, did wrongfully and unlawfully, having knowledge of not being entitled thereto, take from the person or in the presence of another, personal property, and used or threatened the imminent use of force against a person to overcome resistance to or compel acquiescence in the taking or carrying away of the property and while committing the robbery inflicted bodily harm upon another.

 

Said acts constituting the offense of AGGRAVATED ROBBERY IN THE FIRST DEGREE in violation of Minnesota Statute §609.245, subd. 1; §609.05

 

            Although the complaint describes Mason's actions as aiding and abetting, Mason was charged with aggravated robbery in the first degree.  This charge was proper because there is no separate crime of aiding and abetting the commission of a crime.  See State v. Britt, 279 Minn. 260, 263, 156 N.W.2d 261, 263 (Minn. 1968) (indictment alleging that defendant aided another in committing first-degree murder could charge only the crime of first-degree murder because there is no separate crime of criminal liability for a crime committed by another).

            Mason argues that he did not commit first-degree aggravated robbery because he did not take any property from the victim.  We disagree.

A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

 

Minn. Stat. § 609.05, subd. 1 (2000).

The state proves accomplice liability by showing that the defendant had a knowing role in the commission of the crime and did nothing to thwart its completion.

 

State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995).

            There was evidence that Mason held the victim while Lindsey hit the victim in the face and then took the victim's wallet.  The jury was instructed on the law regarding liability for a crime of another and found Mason guilty of first-degree aggravated robbery.  Even if Mason did not take any property from the victim, the evidence that he held the victim while Lindsey took the victim's wallet is sufficient to support the jury's verdict.  Under Minn. Stat. § 609.05, subd. 1, Mason is criminally liable for the crime committed by Lindsey.

            Affirmed.