State of Minnesota v. Derrean Darnell Hogan

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1842

State of Minnesota,
Respondent,

vs.

Derrean Darnell Hogan,
Appellant

Filed January 9, 2017
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-15-9624

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie L. Nelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,

Judge.

UNPUBLISHED OPINION

WORKE, Judge

Appellant challenges his second-degree assault conviction, arguing that the district

court abused its discretion by allowing the state to impeach him with a specified
aggravated-robbery conviction and by failing to define intent in the jury instructions.

Appellant also makes multiple claims in his pro se supplemental brief. We affirm.

DECISION

Impeachment with evidence of prior conviction

Appellant Derrean Darnell Hogan first argues that the district court abused its

discretion by allowing the state to impeach him with evidence of an aggravated-robbery

conviction. He maintains that the district court should have limited the state to presenting

evidence that he had been convicted of an unspecified felony.

A witness’s prior felony convictions are admissible to impeach credibility if the

district court determines that the conviction’s probative value outweighs its prejudicial

effect. Minn. R. Evid. 609(a)(1). To determine whether a prior conviction may be used

to impeach a defendant, the district court considers five factors:

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

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). This court reviews the district

court’s decision to admit a prior conviction for a clear abuse of discretion. State v.

Swanson, 707 N.W.2d 645, 654 (Minn. 2006).

Rule 609 allows the state to impeach a defendant with unspecified felony

convictions. State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011). That does not mean,

however, that the state may never specify the offense that makes up the prior conviction.

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Id. “To the contrary, the decision about what details, if any, to disclose about the

conviction at the time of impeachment is a decision that remains within the sound

discretion of the district court.” Id. “If a [district] 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 [its]

use . . . satisfies the balancing test of Rule 609(a)(1).” Id. at 652-53.

The state moved to admit three prior felony convictions from 2012: two first-

degree aggravated-robbery convictions and an aiding-an-offender conviction that also

involved a robbery. The district court applied the five Jones factors.

The district court determined that all three crimes had impeachment value because

“the jury needs to get information about the whole person in order to better judge the

truth of the testimony.” The supreme court has held that “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 (quotation omitted). The

supreme court has also stated that “the mere fact that a witness is a convicted felon holds

impeachment value.” Hill, 801 N.W.2d at 652. Accordingly, the district court properly

determined that this factor weighed in favor of admitting the convictions.

As to the date of the prior convictions, the district court found that the 2012

offenses were recent and that this factor therefore weighed in favor of admission.

Evidence of a conviction is generally not admissible if more than ten years have elapsed

since the date of the conviction. Minn. R. Evid. 609(b). Here, the prior convictions were

well within that time frame.

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 Next, the district court found that the prior convictions were not similar to the

charged offense of second-degree assault. “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). Hogan argues that aggravated robbery and second-degree assault

are similar because they are both serious crimes against the person. The jury convicted

Hogan of running over his girlfriend, S.L., with his car. The current crime in no way

involved robbery or any element of theft. The district court’s conclusion that this factor

weighed in favor of admission was not an abuse of discretion.

The district court then determined that the importance of Hogan’s testimony

weighed against admission. The district court believed that it would be important to

Hogan’s defense for the jury to hear his version of events. The district court was

concerned about discouraging Hogan from testifying by admitting the prior convictions.

Finally, the district court determined that the centrality of the credibility issue

weighed in favor of admission. Hogan’s only defense was that he did not intend to

assault S.L. Instead, he claimed that the incident was an accident. Because the only

evidence that Hogan did not intend to hit S.L. with his car was his testimony, his

credibility was important. If credibility is a central issue in the case, this factor weighs in

favor of admitting prior convictions. Swanson, 707 N.W.2d at 655.

Although the district court determined that the Jones factors weighed in favor of

admitting each of the convictions individually, it concluded that the prejudicial effect of

admitting all three felonies would outweigh the impeachment value. Accordingly, the

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district court admitted only one aggravated robbery. The district court rejected Hogan’s

motion that the conviction be unspecified because, given that the district court had

excluded two of the three offenses, it was “appropriate for the issue of credibility and for

the jury to see the whole person to have the exact offense be used.”

Hogan argues that “[t]he risk of the jury’s misuse of [his] prior conviction would

have been substantially reduced if the evidence had been sanitized by introducing it as a

conviction for an unspecified felony.” But the district court properly exercised its

discretion by applying the Jones factors and determining that the probative value of

admitting the specified conviction outweighed the prejudicial effect. Moreover, to reduce

the possibility of any unfair prejudice, the district court gave a limiting instruction

requiring the jury “to consider any previous conviction only as it may affect the weight of

the defendant’s testimony” and to “not consider any previous conviction as evidence of

guilt.” This court presumes “that juries follow instructions given by the [district] court.”

State v. Gatson, 801 N.W.2d 134, 151 (Minn. 2011) (quotation omitted).

Hogan also claims that there was a risk of unfair prejudice because the jury was

informed that he was still on probation for the prior offense. But the defense attorney,

not the prosecutor, asked Hogan whether he was still being supervised. This was part of

a defense strategy to explain Hogan’s actions leading up to the assault.

The district court carefully weighed the Jones factors and determined that the 2012

aggravated robbery was admissible and that it was not necessary to sanitize the

conviction by leaving the offense unspecified. The district court did not abuse its

discretion.

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Jury instructions

Hogan next claims that the district court erred by failing to include a definition of

intent in its second-degree assault jury instruction. He argues that this omission warrants

a new trial because Hogan’s intent was the only element of the offense contested at trial.

Because Hogan did not object to the jury instructions in district court, our review

is only for plain error. State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). Under the

plain-error test, we consider whether the district court’s instructions contained “an (1)

error (2) that was plain and (3) that affected the defendant’s substantial rights.” Id. If all

three of these prongs are established, then we determine whether we must “address the

error to ensure fairness and the integrity of the judicial proceedings.” Id. (quotation

omitted). In applying this analysis, we view the jury instructions “in their entirety to

determine whether they fairly and adequately explained the law of the case.” State v.

Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001). “A district court errs when its

instructions confuse, mislead, or materially misstate the law.” State v. Vang, 774 N.W.2d

566, 581 (Minn. 2009). The district court, however, has considerable latitude in crafting

jury instructions. State v. Anderson, 789 N.W.2d 227, 239 (Minn. 2010).

Hogan admits that the district court’s second-degree assault instruction was taken

directly from Minnesota’s jury instruction guide. See 10 Minnesota Practice, CRIMJIG

13.01, .02, .12 (2015). The instruction contains each essential element of the offense,

including the requirement that the assault be intentional.

Although the instruction does not define intent, a specific definition of intent is not

necessary because “the word intent has a common meaning, and the definition provided

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by [the jury instruction guide] does not greatly increase the jury’s understanding of the

phrase.” State v. Harlin, 771 N.W.2d 46, 52 (Minn. App. 2009) (quotation omitted),

review denied (Minn. Nov. 17, 2009); see also State v. Duke, 335 N.W.2d 511, 515

(Minn. 1983) (holding that it was not plain error to fail to define “intent to kill” because it

is “a phrase of common meaning,” and a definition would not greatly enhance the jury’s

understanding); State v. Robinson, 699 N.W.2d 790, 799-800 (Minn. App. 2005)

(concluding that the district court did not commit plain error by failing to define intent in

assault case), aff’d on other grounds, 718 N.W.2d 400 (Minn. 2006). “It is well

established that detailed definitions of the elements to the crime need not be given in the

jury instructions if the instructions do not mislead the jury or allow it to speculate over

the meaning of the elements.” State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015)

(quotation omitted). Because the district court’s instructions required the assault to be

intentional and because intent has a common meaning, the district court did not mislead

the jury, allow the jury to speculate over the meaning of the elements, or otherwise err by

failing to give a definition of intent. Hogan cannot establish error and so it is

unnecessary for us to address the remaining prongs of the plain-error test.

Pro se claims

In his pro se supplemental brief, Hogan argues that his trial attorney was

ineffective and that the evidence was insufficient to convict. His claims are meritless.

Ineffective assistance

To prevail on a claim of ineffective assistance of counsel, Hogan must

demonstrate “(1) that his counsel’s representation ‘fell below an objective standard of

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reasonableness’; and (2) ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Nissalke

v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S.

668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Hogan first argues that his attorney

was ineffective because she “failed to object to or address a map introduced by the

prosecution which inaccurately portrayed the scene of the incident.” But whether to

object or cross-examine a witness on a particular issue are matters of trial strategy that we

generally do not review on appeal. Carridine v. State, 867 N.W.2d 488, 494 (Minn.

2015); Francis v. State, 781 N.W.2d 892, 898 (Minn. 2010). We also do not see how the

outcome of Hogan’s trial would have been different had the map not been admitted.

Hogan also argues that his attorney failed to advise him about his decision to testify or

remain silent and did not adequately prepare him to testify. But the record shows that

Hogan was advised of his rights, made a fully informed decision to testify, and coherently

explained his version of events to the jury. Hogan has failed to show that his attorney’s

performance was unreasonable or that he was prejudiced.

Insufficient evidence

Hogan’s final argument is that the evidence is insufficient to prove that he

intended to assault S.L. Intent is a state of mind that generally must be proven by

circumstantial evidence. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). In

reviewing cases based on circumstantial evidence, we first scrutinize the evidence to

identify the circumstances proved and examine the inferences that can be drawn from

those circumstances. State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015). We then

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determine whether those circumstances are consistent with guilt and inconsistent with

any other reasonable hypothesis. Id.

The circumstances proved show that S.L. went to Hogan’s home to break-up with

Hogan and retrieve money he owed her. Hogan punched, choked, and yelled profanities

at S.L. After S.L. damaged Hogan’s car with a brick, Hogan turned the wheels of his car

toward her, drove the car over a curb, and ran over S.L.’s leg. Hogan then got out of the

car, dragged S.L. from under the vehicle, and broke her phone on the sidewalk. When

police arrived, Hogan fled. These circumstances are consistent with the hypothesis that

Hogan intentionally assaulted S.L. and inconsistent with any other reasonable hypothesis.

Affirmed.

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