State of Minnesota v. Tony Xiong

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1341

State of Minnesota,
Respondent,

vs.

Tony Xiong,
Appellant.

Filed August 4, 2014
Affirmed
Johnson, Judge

Ramsey County District Court
File No. 62-CR-12-9817

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Stephanie A. Karri, Assistant State Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Chutich, Judge; and

Huspeni, Judge.

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 UNPUBLISHED OPINION

JOHNSON, Judge

A Ramsey County jury found Tony Xiong guilty of theft of a motor vehicle and

fleeing a peace officer in a motor vehicle. On appeal, Xiong challenges the admission of

his two prior felony convictions of theft of a motor vehicle, which the state introduced for

purposes of impeachment. We affirm.

FACTS

In the early morning hours of December 9, 2012, Xiong was a passenger in a

stolen Honda Civic in the city of Maplewood. Officer Jason Marino activated his

emergency lights to stop the vehicle. The driver, Kee Thao, initially complied by pulling

into the parking lot of a coffee shop. But when the vehicle came to a stop, Thao got out

and fled on foot. Officer Marino got out of his squad car and chased Thao on foot. As

Officer Marino ran past the Honda, he saw Xiong in the front passenger seat. Officer

Marino called for back-up.

Sergeant Brian Bierdeman heard Officer Marino’s call and headed toward the

scene. As he approached the coffee shop, Sergeant Bierdeman saw the Honda leaving the

parking lot. Sergeant Bierdeman activated his emergency lights and sirens and pursued

the Honda. Because the Honda was traveling at a speed of more than 100 m.p.h., and

because the roads were slippery due to snow, Sergeant Bierdeman terminated the high-

speed chase. Sergeant Bierdeman continued to follow the Honda at the posted speed

limit and maintained continuous visual contact with the vehicle.

2
 Officer William Sypniewski also heard Officer Marino’s call for back-up. While

heading toward the scene, Officer Sypniewski heard over his radio that the Honda was

heading toward the intersection of Century Avenue and Highway 5. Officer Sypniewski

parked his squad car at that intersection. As the Honda approached the intersection,

Officer Sypniewski made eye contact with the driver, whom he later identified as Xiong.

Officer Sypniewski activated his emergency lights and sirens and pursued the Honda but

also had to terminate the chase due to safety concerns. Officer Sypniewski continued to

follow the Honda at the posted speed limit and maintained continuous visual contact with

the vehicle.

After approximately three minutes, Officer Sypniewski saw Xiong exit the Honda

while it was still moving and flee on foot. The Honda went over a curb, hit a utility pole,

and hit a brick sign before it came to a stop. Officers tracked Xiong’s footprints in the

snow and, with the help of a K-9 unit, found Xiong in the courtyard of a home.

The state charged Xiong with one count of aiding and abetting theft of a motor

vehicle, in violation of Minn. Stat. § 609.52, subds. 2(a)(1), 3(3)(d)(v) (2012); one count

of aiding and abetting theft of a motor vehicle, in violation of Minn. Stat. § 609.52,

subds. 2(a)(17), 3(3)(d)(v) (2012); and one count of fleeing a peace officer in a motor

vehicle, in violation of Minn. Stat. § 609.487, subd. 3 (2012).

The case was tried to a jury over three days in March 2013. Xiong testified in his

own defense. Over Xiong’s objection, the district court allowed the state to introduce, for

impeachment purposes, evidence of Xiong’s two prior felony convictions of theft of a

motor vehicle. The jury found Xiong guilty on counts 2 and 3 and not guilty on count 1.

3
In April 2013, the district court imposed concurrent prison sentences of 21 months for

theft of a motor vehicle and 17 months for fleeing a peace officer in a motor vehicle.

Xiong appeals.

DECISION

Xiong argues that the district court erred by allowing the state to introduce, for

impeachment purposes, evidence of his two prior felony convictions of theft of a motor

vehicle. Xiong contends that the district court erred by failing to consider the factors set

forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978), before deciding to admit the

evidence. Xiong further contends that the Jones factors should have caused the district

court to exclude the evidence.

Evidence of a defendant’s prior conviction is admissible for impeachment

purposes if the crime is punishable by more than one year in prison and the probative

value of the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a); State v.

Williams, 771 N.W.2d 514, 518 (Minn. 2009). In this case, both of Xiong’s prior

convictions were punishable by more than one year of incarceration. See Minn. Stat.

§ 609.52, subds. 2(a)(17), 3(3)(d)(v) (2012). Thus, the key question is whether the

probative value of the evidence of the convictions outweighs its prejudicial effect.

A district court must consider the five Jones factors when determining whether the

probative value of impeachment evidence outweighs its prejudicial effect: “‘(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 . . . , (4) the

importance of the defendant’s testimony, and (5) the centrality of the credibility issue.’”

4
State v. Hill, 801 N.W.2d 646, 653 (Minn. 2011) (alteration in original) (quoting Jones,

271 N.W.2d at 538). “[I]t is error for a district court to fail to make a record of its

consideration of the Jones factors.” State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007).

But such an error is harmless if a proper application of the Jones factors would have

resulted in the admission of the evidence. Id.; State v. Swanson, 707 N.W.2d 645, 655

(Minn. 2006); State v. Craig, 807 N.W.2d 453, 469 (Minn. App. 2011), aff’d, 826

N.W.2d 789 (Minn. 2013); State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001),

review denied (Minn. Dec. 11, 2001); State v. Lund, 474 N.W.2d 169, 172 (Minn. App.

1991). This court applies an abuse-of-discretion standard of review to a district court’s

decision to admit evidence of a defendant’s prior conviction for impeachment purposes.

Hill, 801 N.W.2d at 651.

In this case, the district court addressed the admissibility of Xiong’s prior

convictions on three separate occasions and made a record of its assessment of both

probative value and prejudicial effect. But the district court did not discuss all of the

Jones factors on any one occasion, and the district court made some statements that

Xiong contends reflect a misunderstanding of the Jones factors. We need not determine

whether the district court erred in its analysis because, as described below, a proper

application of the Jones factors leads to the conclusion that the evidence is admissible.

See Davis, 735 N.W.2d at 680; Swanson, 707 N.W.2d at 655; Craig, 807 N.W.2d at 469;

Vanhouse, 634 N.W.2d at 719; Lund, 474 N.W.2d at 172.

5
A. Impeachment Value of Prior Crimes

Xiong contends that the first Jones factor weighs against admission because his

prior felony convictions arose from guilty pleas, not from guilty verdicts in contested

trials.

In analyzing the admissibility of prior felony convictions, Minnesota courts do not

distinguish between those arising from a guilty plea and those arising from a finding of

guilt by a judge or a jury. See Craig, 807 N.W.2d at 469 (considering prior felony

conviction arising from guilty plea); see also State v. Zornes, 831 N.W.2d 609, 626-28

(Minn. 2013), cert. denied, 134 S. Ct. 700 (2013); Hill, 801 N.W.2d at 650-53; Swanson,

707 N.W.2d at 653-56. The supreme court consistently has stated that “any felony

conviction is probative of a witness’s credibility, and the mere fact that a witness is a

convicted felon holds impeachment value.” Hill, 801 N.W.2d at 652. “[I]t is the general

lack of respect for the law, rather than the specific nature of the conviction, that informs

the fact-finder about a witness’s credibility, at least with respect to convictions other than

those involving dishonesty or false statements.” Id. “[A] prior conviction can have

impeachment value by helping the jury see the ‘whole person’ of the defendant and better

evaluate his or her truthfulness.” Swanson, 707 N.W.2d at 655. Because Xiong’s two

prior felony convictions allowed the jury to see the “whole person,” this factor weighs in

favor of admission. See id.

6
B. Date of Convictions and Defendant’s Subsequent History

Both of Xiong’s prior felony convictions arose from conduct occurring in January

2012, and he entered his guilty pleas in March 2012. Xiong concedes that this factor

weighs in favor of admission.

C. Similarity of Past Crimes to Crime Charged

Xiong contends that the third Jones factor weighs against admission because his

past crimes are the same as the crime charged. “The more similar the alleged offense and

the crime underlying a past conviction, the more likely it is that the conviction is more

prejudicial than probative.” Id. Because Xiong’s past convictions are the same as the

crime charged, this factor weighs against admission. See id. (reasoning that third Jones

factors weighed against admission due to similarity between past convictions and crime

charged).

D. Importance of Defendant’s Testimony and Centrality of Credibility

Xiong contends that the fourth and fifth Jones factors weigh against admission

because, although his testimony was important, it was not central. This court may

consider the fourth and fifth Jones factors together. See, e.g., id. “[I]f the defendant’s

credibility is the central issue in the case . . . , then a greater case can be made for

admitting the impeachment evidence, because the need for the evidence is greater.” State

v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). Credibility is central to the case “if the

issue for the jury narrows to a choice between defendant’s credibility and that of one

other person.” Id. “If credibility is a central issue in the case, the fourth and fifth Jones

7
factors weigh in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at

655.

In Swanson, the appellant’s testimony was the only evidence supporting his alibi

defense. Id. The jury also heard testimony from the appellant’s two accomplices, which

contradicted the appellant’s alibi defense. Id. The supreme court reasoned that

“credibility was a central issue” because the jury had to determine whether to believe the

appellant’s account of events or his accomplices’ account of events and, thus, “the fourth

and fifth Jones factors weigh in favor of admission of the prior convictions.” Id. at 655-

56. This case is similar to Swanson. Xiong’s theory of the defense was that he was not

the driver of the Honda during the high-speed chase, and his testimony was the only

evidence to support that theory. Because the jury had to determine whether to believe

Xiong’s testimony or the officers’ testimony, Xiong’s credibility was central to the case.

Thus, the fourth and fifth Jones factors weigh in favor of admission. See id.

E. Summary

Four of the Jones factors weigh in favor of admission, while one Jones factor

weighs against admission. The supreme court has held that, even if the third Jones factor

weighs against admission, a district court does not abuse its discretion by admitting

evidence of a prior conviction for purposes of impeachment if the other four Jones factors

weigh in favor of admission. Id. at 656. In this case, because the first, second, fourth,

and fifth Jones factors weigh in favor of admission, the district court did not abuse its

discretion by admitting Xiong’s prior convictions. See id.

Affirmed.

8