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This opinion will be unpublished and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
A17-0351

State of Minnesota,
Respondent,

vs.

Saul Lopez,
Appellant.

Filed December 11, 2017
Affirmed
Reyes, Judge

McLeod County District Court
File No. 43-CR-16-694

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

Michael K. Junge, McLeod County Atto rney, Zachary Lyngaas, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

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

Considered and decided by Peterson, Pres iding Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his conviction of one count of storing methamphetamine
paraphernalia in the presence of a child, arguing that (1) the district court committed plain
2
error in allowing the admission of evidence of his use and possession of marijuana; (2) the
district court abused its discretion in admitting a prior convic tion as impeachment
evidence; and (3) prosecutorial misconduct deprived him of a fair trial. We affirm.
FACTS
On July 30, 2015, the chief of the Winsted Police Department went to appellant Saul
Lopez’s residence to address a complaint. A young child answered the door, and the chief
noticed the odor of marijuana emanating from the residence. When appellant came to the
door to discuss the complaint, the chief told appellant that he smelled marijuana. Appellant
replied, “Oh no.” The chief froze the scene in order to obtain a se arch warrant for the
residence based on the odor of marijuana. Assisting officers arrived and executed the
search warrant. The officers discovered a pipe believed to be methamphetamine
paraphernalia alongside marijuana and marijuan a paraphernalia in the master bedroom.
White residue found inside the pipe field-tested positive for methamphetamine. The pipe
was sent to the Minnesota Bureau of Crimin al Apprehension (BCA) for further testing,
along with DNA samples from appellant an d his wife. A BCA scientist performed DNA
testing on the glass pipe. The scientist id entified one major DNA profile on the pipe,
compared it to the DNA samp les from appellant and his wife , and found that it matched
the sample given by appellant but not the sample provided by his wife.
On May 11, 2016, respondent State of Minnesota charged appellant with one count
of storing methamphetamine paraphernalia in the presence of a child in violation of Minn.
Stat. § 152.137, subd. 2(a)(4) (2016). A jury trial was held on Oct ober 12 and 13, 2016.
At the trial, the jury heard testimony from multiple law-enforcement officers, the scientist,
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and appellant. The officers testified that the pipe could only be used for the purpose of
smoking methamphetamine and described that process in detail. The officers testified on
both direct- and cross-examina tion, without objection, about the presence and seizure of
marijuana in the residence. The jury did not receive any instruction as to how the marijuana
evidence related to the charged crime.
Appellant testified on his own behalf at tria l. Prior to his testimony, the district
court heard arguments regarding the admission of evidence of appellant’s 2010 third-
degree felony-assault conviction for impeach ment purposes. The district court
acknowledged that, while it was a “close call,” the prior conviction was “probative on the
issue of credibility and the entire character of the defendant.” The district court stated that
it would issue a curative instruction to make sure the jury understood what the conviction
was for or interject as necessary.
Appellant testified that the pipe found in his bedroom was an incense burner and
described the process of burning incense w ith the pipe. At the end of the direct
examination, defense counsel asked about ap pellant’s prior felony assault conviction and
established that it was from 2010. There we re no questions on cross-examination about
the prior felony conviction. Prior to subm itting the case to the jury , the district court
instructed the jury that the evidence of the prior conviction could be considered only as it
may affect appellant’s credibility and was not to be considered as substantive evidence.
The jury found appellant guilty. The district court sentenced him to 45 days in jail,
stayed the imposition of the sentence, and placed him on supervised release for a period of
four years. This appeal follows.
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D E C I S I O N
I. The admission of marijuana evidence did not affect appellant’s substantial
rights.

Appellant asserts that the unobjected-to testimony about the presence of marijuana
at his residence was irrelevant and prejudicial and, by allowing it to be elicited, the district
court committed plain error affecting his substantial rights. We disagree.
When a party fails to object to the admission of evidence, we review an assertion of
error under the plain-error standard. State v. Strommen , 648 N.W.2d 681, 686 (Minn.
2002); Minn. R. Crim. P. 31.02. The plain-error standard requires that the defendant show
(1) error, (2) that was plain, and (3) that affected substantial rights. Strommen, 648 N.W.2d
at 686. If the defendant cannot satisfy any on e of the three prongs, the other prongs need
not be addressed. Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011).
Even if the admission of the marijuana evidence was error that was plain, appellant
has not shown that it affected hi s substantial rights. An erro r affects substantial rights if
the error is prejudicial, meaning “there is a reasonable likelihood that the error substantially
affected the verdict.” Strommen, 648 N.W.2d at 688. Appellant bears a “heavy burden”
of proving prejudice. State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015). In determining
whether an error is prejudicial under the plai n-error test, we consider the other evidence
presented, whether the jury received a limiting instructi on on the challenged evidence,
whether the state emphasized the evidence in closing argument, whether the defendant had
an opportunity to rebut th e evidence, and whether the other evidence of guilt was
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overwhelming. See State v. Prtine, 784 N.W.2d 303, 315 (Minn. 2010); State v. Riddley,
776 N.W.2d 419, 428 (Minn. 2009); State v. Courtney, 696 N.W.2d 73, 84 (Minn. 2005).
Here, the state presented stro ng evidence. The pipe found in the master bedroom
field-tested positive for methamphetamine. La w-enforcement officers identified the pipe
as a methamphetamine pipe, based on their years of training and experience. Only
appellant’s DNA matched the major DNA profile found on the pipe. Appellant’s testimony
that the item was an incense burner rather than a methamphetamine pipe was the only
evidence presented in his favo r. The state only mentioned the marijuana evidence in
rebuttal and characterized it as supporting proof for the charge. And although the jury was
not given a limiting instruction, defense counsel had the opportunity to rebut the evidence
in his closing argument, reminding the jury that the marijuana fo und in the home was
unrelated to the charge at issue. On this record, appellant has failed to show that there was
a reasonable likelihood that the marijuana evidence substantially affected the verdict.
II. The district court did not abuse its discretion by allowing appellant’s prior
felony conviction to be admitted as impeachment evidence.

Appellant argues the district court abused its discretion in ruling that evidence of
his 2010 third-degree felony assault convi ction could be adm itted as impeachment
evidence. We are not persuaded.
The state may impeach a defendant with evidence of a prior felony conviction if no
more than ten years has passed since the date of conviction or his release from confinement
and if the district court determines that the probative value of admitting the evidence
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outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1), (b). Fi ve factors guide the
district court’s discretion in determining whether the balancing test is met:
(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.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). We review a district court’s ruling on
prior convictions for a clear abuse of discretion. State v. Hill, 801 N.W.2d 646, 651
(Minn. 2011).
Regarding the first factor, appellant argue s that convictions that do not involve
dishonesty lack impeachment value. The district court stated that the impeachment value
of appellant’s prior conviction was not ove rwhelming and observed that crimes of
dishonesty carry “a lot more probative value” th an other crimes. However, the district
court concluded that “the jury is entitled to know about th e whole person, and the whole
person includes prior felony convictions.” Any felony conviction is probative of a person’s
credibility. Id. at 652. Furthermore, the purpose of admitting prior convictions is to permit
the jury to see “the whole person of th e defendant and better evaluate his or her
truthfulness.” State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006) (quotation omitted).
On the second factor, the district court noted the date of the conviction was within
the ten-year period. Convictions occurring within ten years of trial are presumptively not
stale. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Accordingly, this factor favors
admission.
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Regarding the third factor, the district court concluded that the prior conviction had
“nothing to do with drugs.” “The more similar the alleged offense and the crime underlying
the past conviction, the more likely it is th at the conviction is more prejudicial than
probative.” Swanson, 707 N.W.2d at 655. Because the prior conviction bears no similarity
to the crime charged, this factor weighs in favor of admission.
Regarding the fourth and fifth factors, a ppellant argues that the importance of his
testimony weighed against admiss ibility. The district court determined that appellant’s
testimony was important to the case as it was the only evidence presented in his favor and
that his credibility as a witness was “the heart of the whole case.” If credibility is a central
issue, as it is here, the fourth and fifth Jones factors weigh in favor of admission of prior
convictions. Id.
In sum, all five Jones factors weigh in favor of admissi on. Therefore, the district
court did not abuse its discretion in ruling that appellant’s prior conviction was admissible
for impeachment purposes.
III. The state did not commit prosecutorial misconduct during its closing
argument.

Appellant argues that the state committed prosecutorial misconduct in two instances
in its closing argument by misrepresenting the DNA evidence. We disagree.
The challenged statements took place during the state’s rebuttal:
STATE: Defense counsel had me ntioned that, ‘Well, if you
live in a residence, you’d expect everyone’s DNA to be on the
mouthpiece.’ Well, his wife’s wasn’t; that was excluded by the
BCA from being that major DNA profile. She lives in the
residence. It was his DNA th at was found on the mouthpiece
around the area that the methamphetamine would be ingested.
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And ask yourselves: on an in cense burner, do you put your
mouth around a mouthpiece and inhale the incense?

Because appellant did not object to these st atements at trial, we address the issue
under a modified plain-error test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012).
Under this standard, appellant must establish that the misconduct constitutes error that was
plain. Id. If established, the burden shifts to the state to demonstrate that the error did not
affect appellant’s substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
“It is unprofessional conduct for the pros ecutor to intentionally misstate the
evidence or mislead the jury as to the inferences it may draw.” State v. Bobo, 770 N.W.2d
129, 143 (Minn. 2009) (quotation omitted). Rather, the state’s closing arguments must be
“based on the evidence produced at trial, or the reasonable inferences from that evidence.”
State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). When assessing alleged prosecutorial
misconduct during a closing argument, this court looks to “the closing argument as a whole,
rather than selected phrases and remarks.” Ture v. State, 681 N.W.2d 9, 19 (Minn. 2004).
The state did not misstate the evidence or mislead the jury. In context, the state
made reasonable inferences fro m the evidence presented at trial. The state presented
evidence that appellant’s DNA was a match for the only major identified profile found on
the mouthpiece of the pipe and that his wife’s DNA did not match the major profile. Based
on this record, the state’s arguments do not constitute misconduct or error and appellant is
not entitled to relief.
Affirmed.