State of Minnesota, Respondent, vs. Nidjia Dean Nicks, 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This opinion will be unpublished and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

A03-1191

 

State of Minnesota,

Respondent,

 

vs.

 

Nidjia Dean Nicks,

Appellant.

 

Filed August 10, 2004

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 02102761

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            On appeal from his conviction of felon in possession of a firearm, appellant argues that (1) the district court abused its discretion by ruling that appellant could be impeached with two prior controlled-substance-crime convictions, (2) the district court erred by giving the no-adverse-inference instruction to the jury without appellant's personal consent, and (3) the evidence was insufficient to support his conviction.  Because we conclude that the district court did not abuse its discretion by admitting evidence of appellant's prior convictions for impeachment purposes, that appellant has not shown that the giving of the no-adverse-inference instruction likely had a significant effect on the jury's verdict, and that there was sufficient evidence to support appellant's conviction, we affirm.

FACTS

            On December 24, 2002, police responded to a 911 call reporting that a shot had been fired in an apartment on the ninth floor of a public-housing building in Minneapolis.  When the police arrived, the man who had called 911, Arthur Porch, met them on the building's main floor.  Porch told the police that (1) the woman who lived in the ninth-floor apartment, Martha Ashby, had been allowing him to stay at her apartment, (2) while Porch was in the living room that evening and Ashby was in the bedroom with appellant Nidjia Nicks, Porch heard a "loud popping noise coming out of the bedroom area," and (3) when he went into the bedroom, he saw Nicks holding a small handgun. 

After both Porch and the building's security guard gave the police a description of Nicks, the police proceeded to the ninth floor.  There, they saw Nicks walking from the stairwell toward the apartment where the shot had been fired.  The police handcuffed and searched Nicks before searching the apartment for evidence.  When the police were unable to find a bullet hole in the apartment's bedroom, Porch showed them where he thought that the bullet hit the ceiling, and the police found a hole in the ceiling that had been filled with what appeared to be toothpaste.  A new tube of toothpaste and its cardboard container were found on the bed, and below the hole in the ceiling, police found a flattened, discharged bullet.  When the police were unable to find a gun in the apartment, they asked Porch where he thought the gun might be, and Porch suggested that the police search the building's stairwells.  The police found nothing in the stairwells, but they found a small gun and a clip inside a fire-extinguisher cabinet on the eleventh floor.  Porch identified the gun as the one that he had seen in Nicks's possession.

Nicks was charged with possession of a firearm by a prohibited person, in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2; 609.11 (2002).  A jury found Nicks guilty, and the district court sentenced him to 60 months in prison.  This appeal follows.

D E C I S I O N

I.

Nicks argues that the district court abused its discretion by ruling that the state could introduce evidence of his two prior convictions of controlled-substance crimes to impeach his testimony.[1]  A district court's ruling on use of a prior conviction to impeach a witness is reviewed, as are other evidentiary rulings, under an abuse-of-discretion standard.  State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).  Evidence of a prior conviction may be admissible to impeach a defendant's testimony if the underlying offense is less than ten years old and is punishable by imprisonment for more than one year, and the district court "determines that the probative value of admitting this evidence outweighs its prejudicial effect."  Minn. R. Evid. 609(a)(1), (b).  To determine whether the probative value of the evidence outweighs its prejudicial effect, the court should 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 issue.

 

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).

A.                 Impeachment Value of Prior Crime

Nicks argues that his prior controlled-substance convictions had little impeachment value because they were not crimes of dishonesty.  But the fact that a crime does not directly involve truth or falsity does not mean that evidence of a conviction has no impeachment value.  State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (stating that "a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility"); State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).

B.                 Date of Conviction and Subsequent History

Courts consider the date of the conviction and the defendant's subsequent history "to determine whether the prior offense has lost its relevance over the passage of time."  State v. Vanhouse,634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  Because the two convictions were in 1998, five years before Nicks's trial, Nicks concedes that this factor supports the district court's decision to admit evidence of the convictions for impeachment purposes. 

C.                 Similarity of Past Crime and Charged Crime

If 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.  Nicks concedes that there is no similarity between the charged crime and the prior convictions.

D.        Importance of Defendant's Testimony and Centrality of Credibility Issue

If the admission of a prior conviction deters a defendant from testifying and prevents the jury from hearing the defendant's version of events, this factor weighs against the admission of prior-conviction evidence.  Id.  Although Nicks did not testify, his version of the case was presented to the jury in his opening statement, in the cross-examination of witnesses, and in his closing argument.  Further, Nicks made no offer of proof regarding the testimony that he would have provided if he had testified.  Thus, these factors support the district court's decision to admit the evidence for impeachment purposes.  See id. (determining that district court's decision to admit impeachment evidence was supported by the facts that appellant's version was presented to the jury through other witnesses and that appellant made no offer of proof regarding additional testimony that he would have provided if he had testified); State v. Heidelberger, 353 N.W.2d 582, 590 (Minn. App. 1984) (concluding that because appellant's theory of victim fabrication was presented to the jury through the cross-examination of the victim, and because there was no offer of proof that appellant had any testimony concerning the alleged fabrication, appellant's credibility was a central issue in the case and the district court did not abuse its discretion by admitting impeachment evidence), review denied (Minn. Sept. 12, 1984).

Further, if a defendant's credibility is central to the determination of the case, as here, "a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater."  State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998) (quoting State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980)).  Thus, because the Jones factors support the admission of the impeachment evidence, the district court did not abuse its discretion by admitting the evidence. 

II.

            Nicks argues that the district court erred by instructing the jury not to draw any adverse inference from Nicks's decision not to testify without first obtaining Nicks's consent on the record.  See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  District courts have considerable latitude in the selection of the language of jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  But because a no-adverse-inference instruction "calls the defendant's silence to the jury's attention," such an instruction should ordinarily not be given unless the defendant personally requests it on the record.  McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002).  Giving the instruction without obtaining the defendant's consent on the record is error.  Darris, 648 N.W.2d at 240; see also Minn. Stat. § 611.11 (2002) (stating that a defendant's failure to testify creates no presumption against the defendant and is not to be alluded to by the court). 

            But Nicks did not object when the instruction was given.  Failure to object to a jury instruction at trial generally results in forfeiture of the right to appeal the instruction.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But we may consider the issue on appeal if we find plain error affecting substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  To establish plain error, an appellant must show that (1) there was error, (2) the error was plain, and (3) the error affected the appellant's substantial rights.  Id.  An appellant bears a heavy burden of showing that substantial rights have been affected.  Id. at 741.  Plain error in a jury instruction is prejudicial when there is a reasonable likelihood that the giving of the instruction had a significant effect on the jury's verdict.  Id.

            Nicks argues that the no-adverse-inference instruction likely had a significant effect on the jury's verdict because Porch's credibility was at issue and the instruction highlighted Nicks's failure to take the stand and to "explain or contradict the troubling aspects of the evidence."  In support of his contention, Nicks cites State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000), review denied (Minn. May 16, 2000).  In Duncan, without first obtaining the defendant's consent on the record, the district court instructed the jury on the defendant's right not to testify.  Id. at 558.  On appeal, this court noted that because the credibility of the state's witnesses' statements was central to the jury's decision, "the jury instructions may have had the deleterious effect of emphasizing [the defendant's] failure to take the witness stand and deny the allegations" and then reversed because of the cumulative effect of the district court's errors.  Id.  But (1) the record here does not show an accumulation of errors and (2) Nicks does not demonstrate a reasonable likelihood that the giving of the instruction had a significant effect on the jury's verdict.  We therefore conclude that, while it was error for the district court to give an instruction on Nicks's right to testify without first obtaining his permission on the record, Nicks has not shown that it was plain error and, thus, is not entitled to a new trial.  See Darris, 648 N.W.2d at 240-41 (noting that while giving no-adverse-inference jury instruction is error, standing alone, it is not usually reversible error).

III.

Finally, Nicks argues that the evidence at trial was insufficient to prove that he possessed the handgun.  In considering a claim of insufficient evidence, this court'sreview is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  Nicks asserts, in the alternative, that "grave doubts" about his guilt require a new trial.  See State v. Langteau, 268 N.W.2d 76, 77 (Minn. 1978) (remanding for new trial in interest of justice because of lack of evidence and apparent jury confusion); State v. Kallestad, 296 Minn. 483, 484, 206 N.W.2d 557, 557 (1973) (remanding for new trial because of "grave doubts" as to defendant's guilt).  

            Porch testified at trial that on December 24, 2002, he heard a "loud popping noise coming out of the bedroom area" of Ashby's apartment and that when he went into the bedroom to investigate, he saw that Ashby was "visibly upset, crying and screaming" and that Nicks was sitting on the bed holding a small-caliber pistol, which Nicks then put into his pocket.  Porch testified that he could tell that the pistol had been fired because of the smell and the smoke in the bedroom and because he saw a bullet hole in the ceiling.  Porch further testified that after he heard Nicks tell Ashby how he "may have to shoot her in the head" and that "if [he shot Ashby] in the head, [he'd] have to shoot [Porch] in the head," Porch left the apartment and called 911 on his cell phone to report the shooting. 

            Nicks argues that Porch's testimony was "highly suspect" because "Porch had a motive to set Nicks up."  Nicks asserts that because Porch was living with Ashby in her subsidized housing without the landlord's permission, "Nicks's presence jeopardized Porch's living arrangements."  And because Porch showed the police where the bullet hit the ceiling and also advised the police to search the stairwells after a search of the apartment did not turn up a gun, Nicks contends that the evidence is "equally consistent" with the theory that Porch planted the evidence to frame Nicks.  But (1) the gun was not found in a stairwell where Porch had suggested that the police look; the police instead found it on a different floor in a fire-extinguisher cabinet and (2) there was no evidence that Nicks's presence at the apartment jeopardized Porch's living arrangement with Ashby in any way.  Further, it is the province of the jury, not an appellate court, to determine the credibility and weight of any individual witness's testimony.  State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994). 

            Nicks also argues that because the police did not test the gun or ammunition or conduct gunshot-residue tests, Porch's testimony was insufficient to sustain Nicks's conviction, and, thus, there are "grave doubts" about his guilt.  But Porch's testimony was corroborated by (1) the discovery of the gun on a different floor of the apartment building after the police observed Nicks returning to the apartment from the stairwell, (2) the discovery of the bullet hole in the ceiling of the bedroom, and (3) the discovery of a flattened, discharged bullet in the bedroom.  And, further, because a conviction can rest on the testimony of a single witness and it is the jury that determines the weight and credibility of testimony, the record supports the jury's finding that Nicks possessed the handgun.  See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).

            Affirmed.

           

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Nicks does not challenge the district court's ruling that his conviction of giving false information to the police could be used for impeachment.