State of Minnesota v. Tony Don

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0261

State of Minnesota,
Respondent,

vs.

Tony Don,
Appellant.

Filed February 17, 2015
Affirmed
Stauber, Judge

Rice County District Court
File No. 66CR123392

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul,
Minnesota; and

G. Paul Beaumaster, Rice County Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and

Minge, Judge.

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 UNPUBLISHED OPINION

STAUBER, Judge

On appeal from his conviction of first-degree aggravated robbery, appellant argues

that the district court (1) improperly allowed evidence of an overly suggestive

identification of him at trial; (2) abused its discretion by allowing him to be impeached

with his prior felony convictions that had no bearing on honesty; and (3) abused its

discretion by sentencing him to an upward durational departure under Minn. Stat.

§ 609.1095 (2012). Appellant also filed a pro se supplemental brief claiming several

instances of prosecutorial misconduct. We affirm.

FACTS

In December 2012, appellant Tony Don was charged with aggravated robbery in

the first degree. The complaint alleged that appellant and an accomplice robbed a

pedestrian at knife-point in Northfield.

Prior to trial, appellant moved to suppress the evidence of the victim’s pretrial

identification of appellant, arguing that the show-up identification of appellant was

unfairly suggestive and unreliable. The district court denied the motion, concluding that

the identification procedure was “unnecessarily suggestive,” but that “it did not create a

substantial likelihood of irreparable misidentification” because the “identification was

based upon the distinctive tattoos.”

At trial, evidence and testimony was presented establishing that at about 1:00 a.m.

on December 11, 2012, J.H. realized that his car was parked on the street in violation of a

winter parking ban. After moving his car to avoid being ticketed, J.H. decided to go for a

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walk. According to J.H., it had started to snow, and he was listening to music through his

headphones when he noticed two “suspicious” men “wearing bandanas around their

faces.” J.H. testified that he attempted to avoid the men, and when he did not see them

anymore, he continued his walk. But when he rounded a corner, and turned around, he

saw the two men with the heavy coats, hats, and bandanas, approaching him from around

the corner, and one was “holding a knife.”

The man identified as appellant demanded that J.H. “give him what [he] had,” and

J.H. gave him his iPod and cell phone. He also gave him a “pile of cards” that he keeps

in his front pocket in lieu of a wallet, which included his driver’s license and a credit and

debit card. According to J.H., appellant looked at his driver’s license and warned J.H.

that he would remember him and come after him if he went to the police. Appellant also

demanded money, so the group went to a nearby ATM where J.H. withdrew $300 and

gave it to the robbers. The two men then left heading north.

After the men were out of sight, J.H. ran to a friend’s house where he called 911 to

report the robbery. Northfield police were then able to find footprints in the snow and

followed them until they located appellant and C.W. at the rear of a private residence.

When police detained appellant and C.W., they were not “appropriately attired for the

weather,” wearing only shirts and long pants. The men were subsequently arrested and

brought to J.H. to see if he could identify them. C.W. was taken out of a squad car first

and shown to J.H. J.H. was unable to identify C.W. because he was not wearing a jacket

and had no distinguishing features. But J.H. was able to identify appellant because of the

tattoos around his eyes.

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 A jury found appellant guilty of aggravated first-degree robbery. After hearing

additional testimony, the jury also found that appellant was a danger to public safety as

defined by Minn. Stat. § 609.1095, subd. 2. The district court then sentenced appellant to

168 months, a duration double the low end of the presumptive sentencing range for

aggravated robbery in the first degree with appellant’s criminal-history score of five.

Appellant moved for a new trial, which was denied. This appeal followed.

DECISION

I.

The admission of pretrial-identification evidence violates a defendant’s right to

due process if the procedure is “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” State v. Booker, 770 N.W.2d 161,

168 (Minn. App. 2009) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct.

967, 971 (1968)). While evidentiary decisions are generally reviewed for an abuse of

discretion, we review de novo whether the admission of pretrial-identification evidence

denied a defendant due process. State v. Hooks, 752 N.W.2d 79, 83 (Minn. App. 2008).

A two-part test is used to determine whether pretrial-identification evidence is

reliable. In re Welfare of M.E.M., 674 N.W.2d 208, 214-15 (Minn. App. 2004). “First,

the procedure producing the identification is evaluated to determine if it was

unnecessarily suggestive. Second, if the procedure is unnecessarily suggestive, the court

then considers whether the totality of the circumstances created a substantial probability

that the defendant was misidentified.” Id. The Minnesota Supreme Court has articulated

five factors to evaluate the totality of the circumstances: (1) the opportunity of the

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witness to view the criminal at the time of the crime; (2) the witness’s degree of attention;

(3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty

demonstrated by the witness; and (5) the time between the crime and the confrontation.

State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citing State v. Belcourt, 312 Minn.

263, 264, 251 N.W.2d 631, 633 (Minn. 1977)).

Appellant argues that the district court erred by allowing evidence of the overly

suggestive identification because the five factors, which were not analyzed by the district

court, weigh in favor of suppressing the identification. We disagree. The record reflects

that the victim had several minutes to view the suspects at close range. Moreover,

although the suspects were dressed for winter, with heavy coats, hats, and bandanas on

their faces, J.H. had enough opportunity to observe tattoos around appellant’s eyes. And,

the high degree of detail that was reflected by the victim’s trial testimony demonstrates

that he was very attentive during the robbery. Thus, the first two Ostrem factors indicate

that the identification was reliable.

The fourth and fifth factors also indicate that the identification was reliable. The

victim identified appellant less than an hour after the commission of the robbery. See

Ostrem, 535 N.W.2d at 922 (concluding that unnecessarily suggestive identification

procedure was nonetheless reliable where, among other things, it occurred “only 48 hours

after the crime”). And although J.H. did not positively identify appellant, he stated that

he was “fairly certain” that appellant was one of the robbers. This certainty was based

upon the distinctive tattoos around appellant’s eyes, which were not covered by the

bandana.

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 Finally, the only factor that arguably weighs against a finding that the

identification was reliable is the third factor—the accuracy of appellant’s prior

description of the suspects. As appellant points out, the record reflects that the victim

never mentioned the tattoos around appellant’s eyes during the 911 call and told the

operator that the robbers were wearing hats, coats, and bandanas. But when presented for

the show-up, neither suspect was wearing a coat or bandana. Nonetheless, the fact that

appellant did not have a coat, hat, or bandana when he was arrested does not suggest that

the victim’s prior description was inaccurate. Rather, because it was cold and snowing at

the time he was arrested, the lack of a coat or hat is highly suspicious and suggests that

appellant disposed of those items before he was apprehended. Moreover, when J.H.

identified appellant as one of the robbers, he specifically did so based on the tattoos

around appellant’s eyes, which were visible despite the bandana. Therefore, based on the

totality of the circumstances, any suggestiveness in the show-up procedure did not create

a substantial likelihood of irreparable misidentification.

II.

Appellant challenges the district court’s decision to allow the state to impeach him

with his three prior felony convictions. We review the district court’s decision as to

whether a witness can be impeached by evidence of a prior conviction for an abuse of

discretion. State v. Hill, 801 N.W.2d 646, 651 (Minn. 2011). Appellant has the burden

of showing that the district court improperly admitted the evidence and that he was

prejudiced as a result. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). The reviewing

court will reverse the conviction only if the district court’s erroneous admission of

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evidence substantially influenced the jury’s decision. State v. Jackson, 770 N.W.2d 470,

482 (Minn. 2009).

Minn. R. Evid. 609(a) provides that a witness’s credibility may be attacked by

evidence of a conviction of any crime of dishonesty or of a felony, if the probative value

of using this evidence outweighs its prejudicial effect. Generally, “[e]vidence of a

conviction . . . is not admissible if a period of more than ten years has elapsed since the

date of the conviction or of the release of the witness from the confinement imposed for

that conviction, whichever is the later date.” Minn. R. Evid. 609(b). The district court

should make explicit findings supporting its impeachment decision, but a reviewing court

may independently review the record to determine if the district court abused its

discretion. 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); see also Minn. R. Evid. 609(a) 1989 comm. cmt. (stating

that district court “should make explicit findings on the record as to the factors

considered and the reasons for admitting or excluding the evidence”).

In order to determine whether the probative value of the evidence outweighs the

prejudicial effect of impeaching a witness with a prior felony conviction, the district court

is directed to consider the Jones factors. See State v. Jones, 271 N.W.2d 534, 537-38

(Minn. 1978). These factors include:

(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 the

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

Id. at 538.

Here, the district court ruled that if appellant testified, the state could impeach him

with his three prior felony convictions: a third-degree assault conviction from April

2005, and two aggravated first-degree robbery convictions from 2008. But the district

court limited the evidence to the date and county of the convictions and the fact that each

conviction was an adult felony conviction.

Appellant argues that the district court erred by allowing the state to impeach him

with his three prior felony convictions “that were not probative of dishonesty.” Appellant

contends that the improper impeachment contributed to his conviction and, therefore, his

conviction must be reversed.

A. Impeachment value

Minnesota courts have consistently held that even crimes not involving dishonesty

have impeachment value because “impeachment by a prior conviction aids the jury by

allowing it to see the whole person and thus to judge better the truth of the defendant’s

testimony.” Craig, 807 N.W.2d at 469 (quotation omitted). And the supreme court has

recognized that permitting the jury to see the “whole person” aided it in evaluating the

veracity of the defendant’s testimony. State v. Williams, 771 N.W.2d 514, 518 (Minn.

2009).

Appellant argues this his prior convictions had limited impeachment value because

“[w]hen the jury heard testimony that [he] had been convicted of an unspecified felony

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there was no way the jury could consider the kind of crime and how it related to

[appellant’s] honesty.” In making his argument, appellant argues that this court should

reject the “whole person” theory of impeachment. But in State v. Hill, 801 N.W.2d 646,

652 (Minn. 2011), the supreme court affirmed that “any felony conviction is probative of

a witness’s credibility.” And it is not the role of this court to overturn established

supreme court precedent. State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).

Appellant’s prior conviction had impeachment value because it permitted the jury to

consider appellant as a “whole person.” This factor weighs in favor of admission.

B. Date

Under Minn. R. Evid. 609(b), convictions that are more than ten years old

generally cannot be used to impeach. Two of appellant’s convictions were only four

years old, and the third conviction was seven years old. Thus, this factor also weighs in

favor of admission.

C. Similarity

A prior conviction that is similar to the current offense generally weighs against

use of the prior conviction for impeachment purposes because of the possibility that a

jury may use the information substantively. See State v. Gassler, 505 N.W.2d 62, 67

(Minn. 1993). The state acknowledges that “[b]ecause the charged crime here is similar

to appellant’s past convictions, this factor weighs against admission of those past

convictions.” But as the state points out, the district court excluded any evidence of the

specific nature of appellant’s prior convictions, which would eliminate any potential

prejudice to appellant arising from the similarity of those convictions to the present

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offense. Moreover, the record reflects that the district court cautioned the jury twice

about the limited purpose of appellant’s prior felony convictions. See State v. Brouillette,

286 N.W.2d 702, 708 (Minn. 1979) (recognizing that a cautionary instruction

“adequately protects [a] defendant against the possibility that the jury would convict him

on the basis of his character rather than his guilt”). Consequently, the risk was minimal

that the jury considered appellant’s prior convictions as substantive evidence of his guilt.

D. Importance of testimony

The importance of the defendant’s testimony weighs against use of the

impeachment evidence if it discourages the defendant from testifying. Gassler, 505

N.W.2d at 67. But here, appellant testified despite the district court’s decision to admit

appellant’s prior convictions for impeachment. This factor weighs in favor of

admissibility. See id. (noting that if a fact-finder hears the defendant’s version of the

events, this factor weighs in favor of admissibility).

E. Credibility

The fifth factor weighs in favor of the admission of the prior convictions if

credibility is the central issue in the case. State v. Swanson, 707 N.W.2d 645, 655 (Minn.

2006). Here, credibility was the central issue. Although J.H. identified appellant as one

of the robbers, he was only “fairly certain” of the identification because the bandana

partially concealed the robber’s face. To support the victim’s testimony, the state offered

the testimony of the accomplice, C.W., who claimed that both he and appellant

committed the robbery. Appellant, however, testified in his defense and claimed that

C.W. was lying and that appellant did not take part in the robbery. Therefore, because

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credibility was the central issue, there was a “significant need for the admission of [the

impeachment] evidence.” Gassler, 505 N.W.2d at 67.

After considering all of the Jones factors, we conclude that the district court did

not abuse its discretion by allowing the state to impeach appellant with his prior felony

convictions. And although appellant claims that the district court did not properly

consider the Jones factors, the record reflects that the court did consider these factors. In

fact, when ruling not to allow the state to designate the offenses of which appellant had

been convicted, the district court stated: “So I think under the Jones factors that factor

number three outweighs the rest and will only allow undesignated offenses to use for

impeachment.” And to the extent that the district court failed to make a complete record

of its analysis of the Jones factors, any error was harmless. See Swanson, 707 N.W.2d at

654-55 (holding that the district court’s failure to make a record of its analysis of the

Jones factors was harmless where only one of the Jones factors weighed against

admission of the defendant’s prior convictions as impeachment evidence).

III.

We review the district court’s decision to depart from the presumptive sentence for

an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585-86 (Minn. 2011). We will

reverse a sentence if the district court’s reasons for departure are “improper or

inadequate,” or if the evidence is not sufficient to justify the departure. Id. at 586

(quotation omitted).

“The dangerous-offender statute is a sentencing statute that permits durational

departures not otherwise authorized by the sentencing guidelines.” Neal v. State, 658

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N.W.2d 536, 545 (Minn. 2003). If the requirements of Minn. Stat. § 609.1095, subd. 2,

are met, the district court may impose an upward durational departure up to the statutory

maximum, even in the absence of severe aggravating factors. Id. The statutory

requirements are: (1) the offender was at least 18 years old at the time the felony was

committed; (2) the offender had two or more prior convictions for violent crimes; and

(3) the fact-finder determines that the offender is a danger to public safety. Minn. Stat.

§ 609.1095, subd. 2; Neal, 658 N.W.2d at 543. The fact-finder may base a finding of

danger to public safety on the “offender’s past criminal behavior, such as the offender’s

high frequency rate of criminal activity . . . or long involvement in criminal activity.” Id.

Under Minn. Stat. § 609.1095, subd. 1(c), a prior conviction for the dangerous

offender statute “means a conviction that occurred before the offender committed the

next felony resulting in a conviction and before the offense for which the offender is

being sentenced under this section.” Citing this provision, appellant initially contends

that his three prior adult felony convictions were improperly used to support the

departure because the second first-degree aggravated robbery occurred before he was

convicted and sentenced for the first aggravated first-degree robbery offense.

The state does not quibble with appellant’s position that all three prior adult felony

convictions should not have been used to support the upward departure. But the state

correctly points out that “[e]ven assuming that appellant is correct, he still had two

qualifying prior convictions: his third-degree assault conviction on April 30, 2005, and

his more recent aggravated robbery conviction on September 30, 2008.”

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 Appellant also contends that his sentence was improper because the sentencing

court considered his criminal history three times: (1) to calculate his presumptive

sentence; (2) to determine that he had two or more prior violent-crime convictions; and

(3) to support the jury’s special interrogatory finding him to be a danger to public safety.

But the statute explicitly allows the district court to sentence appellant in the manner that

it did. Appellant does not challenge the constitutionality of the statute, but instead

appears to challenge the policy behind the statute. As the state points out, such a

challenge should be brought before the legislature because it is outside the purview of

this court as an error-correcting court. See Lake George Park, L.L.C. v. IBM Mid-

America Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998) (stating that

“[t]his court, as an error correcting court, is without authority to change the law”), review

denied (Minn. June 17, 1998).

The record reflects that appellant was older than 18 when he robbed the victim at

knifepoint, and appellant has two prior convictions for violent crimes: a conviction of

third-degree assault and a conviction of aggravated first-degree robbery. Moreover, the

jury found that appellant is a danger to public safety due to his past criminal behavior,

which includes factors such as his high frequency rate of criminal activity or long

involvement in criminal activity. These factors satisfy all of the criteria set forth in the

dangerous offender statute. The district court then sentenced appellant to 168 months, a

duration twice the low end of the presumptive sentencing range for aggravated robbery in

the first degree committed by an offender with a criminal-history score of five.

Accordingly, the district court did not abuse its discretion when it sentenced appellant.

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 IV.

Appellant filed a pro se supplemental brief arguing several instances of

prosecutorial misconduct. “When a defendant fails to object to prosecutorial misconduct

at trial, he ordinarily forfeits appellate consideration of the issue.” State v. Caine, 746

N.W.2d 339, 358 (Minn. 2008) (quotation omitted). But we may review such conduct

under the plain error doctrine. Id. In the context of unobjected-to prosecutorial

misconduct, once error is shown, the burden is on the state to demonstrate that its plainly

erroneous misconduct “did not prejudice the defendant’s substantial rights.” State v.

Ramey, 721 N.W.2d 294, 299-300 (Minn. 2006).

Appellant claims that the state pressured the accomplice to testify in a certain way

by stating that “something is going to happen to him if he doesn’t say a certain thing.”

But in Opsahl v. State, the supreme court held that the state’s warnings about the

consequences of committing perjury, even when inaccurate, are not necessarily

prejudicial. 710 N.W.2d 776, 783 (Minn. 2006). The accomplice testified that he was

obligated to testify under the terms of a plea agreement and that if he did not “say a

certain thing” he was going to prison. The accomplice also testified that he was obligated

to testify truthfully. There was no prosecutorial misconduct concerning the accomplice’s

testimony.

Appellant also complains about the accomplice approaching the prosecutor during

a recess and stating that he wanted to correct his testimony. Appellant appears to indicate

that the accomplice’s desire to change his testimony was a product of the prosecutor’s

intimidation of the witness. But as addressed above, the prosecutor did not commit

14
misconduct during the accomplice’s testimony. And a review of the record reveals that

the accomplice simply explained that he did “recall [that] I did grab the money from the

victim and I handed it to [appellant]. And I wanted to correct that.”

Appellant further argues that there was an irregularity in the court proceedings

because a recording of an officer’s interrogation of the accomplice was edited by the state

before it was played to the jury. But as the district court found in its order denying

appellant’s motion for a new trial, the tape was edited because it referenced appellant’s

prior aggravated robbery offense. As the district court found, if the tape had been played

in its entirety, it would have been “severely” prejudicial to appellant. Therefore,

appellant is unable to establish that the prosecutor committed misconduct at trial.

Affirmed.

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