Travis Clay Andersen, petitioner, Appellant,

This opinion will be unpublished and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
A16-1615

Travis Clay Andersen, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 15, 2017
Affirmed
Kalitowski, Judge

Carver County District Court
File No. 10-CR-11-445

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mark Metz, Carver County Attorney, Angella Erickson, Assistant County Attorney,
Chaska, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Ross, Judge; and
Kalitowski, Judge.

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

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Following his conviction of violation of an order for protection (OFP), a ppellant
Travis Clay Andersen argues that the district court committed reversible error by
(1) permitting his prior convictions to be used to impeach him, (2) giving a cautionary jury
instruction that did not conform to the suggested wording of the jury instruction guidelines,
and (3) making a spontaneous statement at trial that contradicted Andersen’s sworn
testimony. We affirm.
D E C I S I O N
I.
At Andersen’s trial, the district court permitted Andersen to be impeached with
some of his prior convictions after he testified on direct examination that he would not have
had contact with the victim “if I was ever told not to have contact with her, especially by a
judge of the law.” “A district court’s ruling on the admissibility of prior convictions for
impeachment of a defendant is reviewed under a clear abuse of discretion standard.” State
v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006). In balancing whether the probative value
of impeachment evidence outweighs its prejudicial effect under the balancing test of Minn.
R. Evid. 609(a)(1), a district court applies the Jones factors, which 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.

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Swanson, 707 N.W.2d at 654 (quotation omitted) (citing State v. Jones, 271 N.W.2d 534,
537-38 (Minn. 1978)) . “On appeal, the appellant has the burden o f establishing that the
[district] court abused its discretion and that appellant was thereby prejudiced.” State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003).
The district court did not make the required findings on the Jones factors. The
failure to make these findings is error, but the supreme court has declined to reverse when
application of the Jones factors “makes clear that the error was harmless.” Swanson, 707
N.W.2d at 655.
Here, application of the Jones factors supports the district court’s decision to allow
Andersen to be impeached with the prior felony convictions. Andersen’s prior crimes had
impeachment value because they assisted the jury in learning more about Andersen in order
to evaluate his propensity for truthfulness and for failing to follow court orders. See State
v. Gassler, 505 N.W.2d 62, 66-67 (Minn. 1993) (stating that “impeachment by prior crime
aids the jury by allowing it to see the whole person and thus to judge better the truth of his
testimony”) (quotation omitted)). We reject Andersen’s contention that his prior felony
conviction for violating an OFP should have been excluded as too similar to the charged
offense because that conviction was highly probative of whether Andersen would violate
a court order. Most of the convictions were for offenses that occurred within a few years
of the current offense and favor their admission. See State v. Ihnot, 575 N.W.2d 581, 586
(Minn. 1998) (recognizing that even “fairly old” convictions may establish “a pattern of
lawlessness” that negates the effect of time passage); see also Hooper v. State, 838 N.W.2d
775, 785 (Minn. 2013) (stating that “any felony conviction is probative of a witness’s

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credibility” (quotation omitted) ). The prior felony convictions, for terroristic threats ,
simple robbery, and fourth -degree assault, are not similar to the current offense, again
favoring their admission.
Finally, when “credibility is a central issue . . . , the fourth and fifth Jones factors
weigh in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. The
key issue at trial was whether Andersen knew of the existence of the OFP when he violated
it. See id. He testified that he did not know of the OFP’s existence, but the law enforcement
officer who served the OFP on Andersen testified that he knew Andersen personally and
that he explained to Andersen the prohibitions of the OFP at the time of service. T hus,
credibility was the determinative issue for the jury to decide in reaching a verdict and favors
admission of t he prior convictions . Because a pplication of the Jones factors favors
admission of the prior felony convictions for impeachment purposes, we conclude that the
district court’s failure to make explicit Jones-factors findings was harmless error.
Further, although impeachment by prior misdemeanor convictions that do not
involve dishonesty or false statement is not permitted under Minn. R. Evid. 609, appellant’s
non-felony convictions were for prior domestic assaults and violations of OFPs or
domestic-abuse no-contact orders. As such, they were admissible under Minn. Stat.
§ 634.20 (2014) as relationship evidence unless their “probative value [was] substantially
outweighed by the danger of unfair prejudice.” State v. Bell, 719 N.W.2d 635, 641 (Minn.
2006). Applying this balancing test, we conclude that the district court did not abuse its
discretion by admitting the non -felony convictions, which informed the jury on how
appellant interacts with those close to him or his propensity for following district cou rt

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orders. Id. (recognizing “inherent value of evidence of past acts of violence committed by
the same defendant against the same victim”).
II.
Before allowing Andersen to be impeached, the district court gave the following
cautionary instruction to the jury:
Ladies and gentlemen, the state is going to be offering some
testimony, listing some testimony from Mr. Andersen,
concerning some prior criminal convictions that he has on his
record. That evidence is being added only for your
consideration in deciding whether Mr. Andersen is telling the
truth in this case. You may also consider that evidence as – or
conviction of – evidence of his character as it reflects upon
believability. In other words, you’re not being asked to judge
any other criminal m atters against him. It’s being provided
with you for what we call impeachment purposes on
believability and also character evidence, which also gets back
to believability. There will be several incidents. And we will
deliver them by dates to you, but th ere will be no incidents
discussed. But, again your focus in deciding the questions here
is on his conduct on April 3 rd of 2011. That’s what you will
be utilizing, like you’re utilizing this information for
believability, credibility, character.
Andersen argues that the district court abused its discretion by failing to give the verbatim
instruction that is set forth in the jury instruction guidelines (JIGs). See 10 Minnesota
Practice, CRIMJIG 2.02 (2015) (stating, “The evidence concerning a prior convi ction of
the defendant is admitted only for your consideration in deciding whether the defendant is
telling the truth in this case. You must not consider this conviction as evidence of the
defendant’s character or conduct except as you may think it reflec ts on (believability)
(credibility).”).

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District courts have “broad discretion” to craft a jury instruction, and they abuse that
discretion if the instruction given “confuse[s], mislead [s], or materially misstate [s] the
law.” State v. Taylor, 869 N.W.2d 1, 14 (Minn. 2015) (quotation omitted). When there is
no objection to a jury instruction, appellate review is under the plain-error standard. Id.
It is error for a district court to refuse to give a cautionary instruction that a
defendant’s prior convi ctions are to be used only for impeachment purposes. State v.
Bissell, 368 N.W.2d 281, 283 (Minn. 1985). Here, the district court gave a cautionary
instruction that generally included the same content as the recommended JIG instruction.
The instruction was legally accurate and neither misleading nor confusing. Moreover, the
instruction included the admonition that “the evidence is being added only for your
consideration in deciding whether Mr. Andersen is telling the truth in this case.” Although
the instruction does not follow the CRIMJIG verbatim, the district court is “allowed
considerable latitude in the selection of language for jury instructions.” State v. Ihle, 640
N.W.2d 910, 916 (Minn. 2002). Even though the instruction could have been more clearly
articulated, we cannot conclude that it was legally incorrect. And we note that the district
court again reminded the jury of the gist of the instruction in its final instructions by
advising the jury on the proper use of evidence of Andersen’s ot her convictions. We
conclude that the district court did not abuse its discretion in giving its cautionary
instruction.
III.
During Andersen’s testimony about his prior convictions, he was asked whether two
of the convictions were the result of trials, and he said, “One trial I was forced to represent

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myself.” Following a bench conference, the district court sustained the state’s objection to
this statement, telling the jury:
For the jury’s information on the procedural basis, it has
been determined by a Court[] [of] competent jurisdiction, [that]
in the particular case Mr. Andersen is referring to, he was not
forced to represent himself as he has just indicated in his
response. That issue was determined by the courts and found
to be not an accurate statement. He did represent himself, but
the issue of being forced or not is not accurate by judicial
determination. So his answer is corrected to that extent.

Defense counsel did not object to the district court’s spontaneous statement.

Because Andersen did not object to the district court’s statement, any error is subject
to the plain-error standard of review. “Under the plain -error doctrine, the appellant must
show that there was (1) an error; (2) that is plain; and (3) the error must affect [the
appellant’s] substantial rights.” State v. Kelley, 855 N.W.2d 269, 273 -74 (Minn. 2014).
“If the appellant satisfies the first three prongs of the plain -error doctrine, we may correct
the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 274 (quotation omitted). “An error is ‘plain’ if it is clear and obvious.”
State v. Peltier , 874 N.W.2d 792, 799 (Minn. 2016). An error is clear and obvious if it
“violates or contradicts case law, a rule , or an applicable standard of conduct.” State v.
Bustos, 861 N.W.2d 655, 66 0-61 (Minn. 2015) (quotation omitted). “Any error that does
not affect substantial rights must be disregarded.” Minn. R. Crim. P. 31.01.
The district court plainly erred by informing the jury that Andersen’s testimony was
inaccurate. Under the criminal rules, a district court “must not comment on evidence or

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witness credibility.” Minn. R. Crim. P. 26.03, subd. 19(6). The district court should not
have made the statement that contradicted Andersen’s testimony.
But Andersen cannot satisfy the third prong of the plain -error doctrine because he
cannot show that the error affected his substantial rights. We conclude that the erroneous
statement likely had no effect on the jury’s verdict because the state provided strong
evidence of Andersen’s guilt. See State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013) (“An
error in instructing the jury is prejudicial if there is a reasonable likelihood th at giving the
instruction in question had a significant effect on the jury’s verdict.”) (quotation omitted)).
Andersen did not assert that he did not violate the OFP; he argued only that he did not
know of the OFP’s existence and therefore did not knowingly violate it. The state offered
evidence that the OFP was served on Andersen by a law enforcement officer who knew
him and personally explained the OFP’s prohibitions to him ; the state also impeached
Andersen with evidence of his prior convictions to cast doubt on his credibility. Even
though the jury’s verdict hinged on credibility, there is little doubt that the law enforcement
officer’s testimony was far more believable than Andersen’s testimony, and the jury so
found. Thus, under the plain -error doctrine, the district court’s error in commenting on
Andersen’s testimony did not affect Andersen’s substantial rights and does not require
reversal of his conviction.
Affirmed.