State of Minnesota, Respondent,

This opinion will be unpublished and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
A16-0837

State of Minnesota,
Respondent,

vs.

Melissa Kay Hirsch,
Appellant

Filed March 27, 2017
Affirmed
Worke, Judge

Washington County District Court
File No. 82-CR-14-1695

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges her conviction of aiding and abetting third-degree burglary,
arguing that the district court erred by allowing the state to impeach her with a prior gross-
misdemeanor theft conviction because it was not a crime of dishonesty. We affirm.
FACTS
In 2014, L.A. moved out of his townhome in Cottage Grove, leaving behind some
personal property. Soon after, L.A.’s home went into foreclosure. On April 26, 2014, L.A.
returned to his townhome to pick up some property. L.A. discovered that his vehicle had
all the wheels removed and the locks drilled out, and noticed several items missing from
the garage and home.
Appellant Melissa Kay Hirsch lived in the townhome next door to L.A. On his way
to Hirsch’s to ask her if she had seen anything suspicious, L.A. saw one of his vehicle’s
wheels in Hirsch’s garage. L.A. asked Hirsch about his property, and she told him that she
removed his property so that the sheriff would not seize it. Hirsch had never called L.A.
to tell him that she removed his property for safekeeping. Hirsch was charged with aiding
and abetting third-degree burglary.
During Hirsch’s jury trial, L.A. testified about discovering his property missing and
Hirsch’s claim that she took the property for safekeeping. He also testified that he never
asked Hirsch to watch over his property or gave her permission to enter his property.
J.S., Hirsch’s ex-boyfriend, testified that after notice of a sheriff’s sale had been
posted on L.A.’s property, he decided to take L.A.’s property for safekeeping and discussed
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his plan with Hirsch. But when J.S. pleaded guilty to third-degree burglary, he stated that
Hirsch directed him over the phone to take L.A.’s property. J.S. tes tified that he removed
property on two occasions. Hirsch was not present the first time, but she acted as a lookout
when J.S. took property the second time. J.S. testified that on April 26, when L.A. asked
about his missing property, he and Hirsch tried to explain that they had his property for
safekeeping, but L.A. did not give them a chance to return his property because he called
the police. J.S. also testified that he once saw an individual who had “a pretty good
reputation for stuff like that” leaving L.A.’s home.
The state moved to impeach Hirsch should she choose to testify with a prior gross-
misdemeanor theft conviction. After the district court ruled that the state could impeach
Hirsch with the prior conviction, she decided not to testify . The jury found Hirsch guilty
of aiding and abetting third-degree burglary. This appeal followed.
D E C I S I O N
Hirsch argues that the district court erred by allowing the state to impeach her
testimony with a prior gross- misdemeanor theft conviction because it was not a crime of
dishonesty. A district court’s ruling on the impeachment of a witness by prior conviction
is reviewed for an abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).
The district court’s decision will not be reversed absent a clear abuse of discretion. State
v. Graham, 371 N.W.2d 204, 209 (Minn. 1985). To prevail, an appellant must show error
and prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall
be admitted only if the crime (1) was punishable by death or
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imprisonment in excess of one year under the law under which
the witness was convicted, and the court determines that the
probative value of admitting this evidence outweighs its
prejudicial effect, or (2) involved dishonesty or false statement,
regardless of the punishment.

Minn. R. Evid. 609(a). Hirsch’s prior conviction was not a felony. Accordingly, Hirsch’s
testimony could have been impeached by evidence of a prior gross- misdemeanor
conviction only if it involved dishonesty or false statement. See id.
“Crimes directly involving dishonesty or false statement are automatically
admissible without regard to the seriousness of the punishment and without any balancing
of probative value against prejudice being required.” State v. Bettin, 295 N.W.2d 542, 545
(Minn. 1980). 1 The only restriction on the admissibility of a prior conviction of a crime
involving dishonesty or false statement for impeachment purposes is that no more than ten
years has elapsed between the conviction and the date of the charged offense. See Minn.
R. Evid. 609(b) (providing that “[e]vidence of a conviction . . . is not admissible if a period
of more than ten years has elapsed since the date of the conviction”); Ihnot, 575 N.W.2d at
585 (“[T]he date of the charged offense is the appropriate end point for the 10-year period
that determines whether a conviction is stale under Minn. R. Evid. 609(b).”). The date of
Hirsch’s prior theft conviction was April 9, 2015; the date of the charged offense was
April 26, 2014. Because the prior theft conviction occurred after the charged offense,

1 Because the only way a gross misdemeanor can be used for impeachment is if it involves
dishonesty or false statement, the district court unnecessarily analyzed the Jones factors in
determining that the state could impeach Hirsch with a prior conviction. See State v. Jones,
271 N.W.2d 534, 537-38 (Minn. 1978).
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staleness is not an issue and Hirsch’s prior conviction is admissible for impeachment
purposes if it involved dishonesty or false statement.
If “dishonesty is an element of the crime” of conviction, evidence of the conviction
falls within the plain language of rule 609(a)(2) and is admissible. State v. Head, 561
N.W.2d 182, 187 (Minn. App. 1997), review denied (Minn. May 28, 1997). If dishonesty
is not an element of the crime of conviction, evidence of the conviction is admissible if the
crime was committed in a manner involving dishonesty. State v. Ross, 491 N.W.2d 658,
659 (Minn. 1992). Rule 609(a)(2) contemplates admissibility of crimes involving “ac ts
directly bearing on a person’s character for truthfulness”; dishonesty refers “only to those
crimes involving untruthful conduct.” State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982)
(quotation omitted). Hirsch’s prior conviction was for theft of leased or rented property.
Depending on the act of thievery involved, theft may be a crime involving
dishonesty or false statement. State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994). Theft by
shoplifting generally is not a crime involving dishonesty or false statement. Darveaux, 318
N.W.2d at 48. But theft by swindle, theft by fraud, and theft by false representation are
crimes involving dishonesty or false statement. State v. Swinger, 800 N.W.2d 833, 836
(Minn. App. 2011), review denied (Minn. Sept. 28, 2011).
Here, the record shows that Hirsch was previously convicted of theft—leas ed or
rented personal property, in violation of Minn. Stat. § 609.52, subd. 2(a)(9) (2014). Under
this statute, a person is guilty of theft if she
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leases or rents personal property under a written
instrument . . .
(i) with intent to place the property beyond the control
of the lessor conceals or aids or abets the concealment of the
property or any part thereof; or
(ii) sells, conveys, or encumbers the property or any
part thereof without the written consent of the lessor, without
informing the person to whom the lessee sells, conveys, or
encumbers that the same is subject to such lease or rental
contract with intent to deprive the lessor of possession thereof;
or
(iii) does not return the property to the lessor at the end
of the lease or rental term, plus agreed-upon extensions, with
intent to wrongfully deprive the lessor of possession of the
property; or
(iv) returns the property to the lessor at the end of the
lease or rental term, plus agreed-upon extensions, but does not
pay the lease or rental charges agreed upon in the written
instrument, with intent to wrongfully deprive the lessor of the
agreed-upon charges.

Minn. Stat. § 609.52, subd. 2(a)(9).
Hirsch failed to return a rented car. See id., subd. 2(a)(9)(iii). When Hirsh rented
the car, she entered into a contract promising to return the car by a certain date. She failed
to return the vehicle, so she was dishonest when she agreed to return the vehicle. We
conclude that Hirsch’s prior theft conviction was for a crime of dishonesty or false
statement. Therefore, the district court did not abuse its discretion by allowing the state to
impeach Hirsch with the prior theft conviction if she testified.
Hirsch claims that the district court’s decision to allow the state to impeach her with
a prior conviction if she testified was prejudicial error because she decided not to testify
based on the district court’s ruling. “A defendant has a constitutional right to present [her]
version of events to a jury.” State v. Zornes , 831 N.W.2d 609, 628 (Minn. 2013). But a
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defendant’s decision to not testify due to the threat of impeac hment is “not critical” if the
defendant’s “theory of the case was presented to the jury by . . . other means.” State v.
Lund, 474 N.W.2d 169, 173 (Minn. App. 1991).
Here, Hirsch’s theory of the case was presented to the jury. L.A. testified that
Hirsch told him that she removed the property to make sure that the sheriff did not seize it.
A police officer also testified that Hirsch told L.A. that she removed the property for
safekeeping. J.S. testified that he decided to take L.A.’s property for safekeeping. J.S. also
testified that on one occasion, he saw an individual who had “a pretty good reputation for
stuff like that” leaving L.A.’s home. Although Hirsch did not give the district court any
indication regarding the substance of her testimony, it seems likely that she would have
similarly testified that L.A.’s property was moved for safekeeping. Accordingly, even if
the district court erred in its ruling, Hirsch failed to establish prejudice.
Affirmed.