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This opinion will be unpublished and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
A17-0719

State of Minnesota,
Respondent,

vs.

Davante Atkins,
Appellant.

Filed January 22, 2018
Affirmed
Larkin, Judge

Olmsted County District Court
File No. 55-CR-15-8932

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M. , Presiding Judge; Larkin, Judge; and
Hooten, Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Following a jury trial, appellant was convicted of felony fourth-degree assault of a
peace officer and obstructing legal process. Appellant challenges his fourth-degree-assault
conviction, arguing that the evidence was insufficient to sustain the jury’s guilty verdict.
Appellant also argues that he is entitled to a new trial because the district court erred in
ruling that if he were to testify at trial, the state could impeach him with both a felony
conviction of receiving stolen property and a conviction of using a false name. We affirm.
FACTS
Respondent State of Minnesota charged a ppellant Davante Atkins with felony
fourth-degree assault of a peace officer, obstructing legal process, and driving while
impaired (DWI) after he allegedly resisted arrest and bit a police officer on December 24,
2015. The DWI charge was dismissed, and the state tried the remaining charges to a jury.
The state presented evidence that Rochester Police Officer James Ratelle responded
to a citizen report of erratic driving. Officer Edward Fritz also responded to the scene. At
that point, the suspect vehicle was parked in a parking lot. Officer Ratelle testified that he
observed two individuals slumped over in the front seat of the vehicle. Atkins was in the
driver’s seat. Officer Ratelle woke Atkins and observed signs of impairment, including
slurred speech and glassy eyes. Atkins performed poorly on field sobriety tests, and Officer
Ratelle arrested him for DWI.
Atkins physically resisted when Officer Ratelle attempted to place him in a squad
car. Officer Fritz intervened. Officer Fritz testified that Atkins bit him as he attempted to
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place Atkins in the squad car. Officer Ratelle testified that Officer Fritz said, “He bit me.”
Officer Ratelle also testified that he observed obvious teeth marks on Officer Fritz’s finger.
Officer Fritz test ified that he experienced pain, that the skin on this finger was torn and
bleeding, and that a paramedic told him his finger was likely broken. However, the leather
glove that he was wearing to prevent puncture wounds was not torn.
The civilian witness who reported the erratic driving , J.K., also testified . J.K.
followed Atkins’s vehicle to the parking lot where he was arrested. J.K. observed Atkins
struggle to avoid being placed in the squad car, and he testified that he saw Atkins bite one
of the officers.
The court received four exhibits. Exhibit one consisted of footage from Officer
Ratelle’s body camera. Exhibits two, three, and four were pictures of the injury to Officer
Fritz’s finger, which were taken in an emergency room.
Atkins waived his right to testify at trial. The jury found Atkins guilty of felony
fourth-degree assault of a peace officer and obstructing leg al process. T he district court
entered judgments of conviction and sentenced Atkins to a 45 -day jail term. Atkins
appeals.
D E C I S I O N
I.
Atkins contends that the evidence was insufficient to sustain the jury’s guilty verdict
on the charge of felony fourth-degree assault of a peace officer. When considering a claim
of insufficient evidence, this court carefully analyzes the record to determine whether the
evidence, when viewed in a light most favorable to the conviction, was sufficient to permit
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the jury to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court
“assume[s] that the jury believed the state’s witnesses and disbelieved contrary evidence.”
State v. Broc ks, 587 N.W.2d 37, 42 (Minn. 1998). This court will not di sturb the jury’s
verdict if the jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was proved guilty of the offense charged. Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004).
To prove Atkins guilty of felony fourth-degree assault of a peace officer as charged,
the state had to prove that Atkins assaulted a peace officer and inflicted demonstrable
bodily harm. Minn. Stat. § 609.2231, subd. 1 (2014). Atkins does not dispute that Officer
Fritz suffered demonstrable bodily harm. Instead, he contends that the state did not prove
that he caused the harm. Specifically, Atkins argues, “because the alleged act of biting was
not on the video and the officer’s leather glove had not been damaged, as a matter of law,
the evidence was insufficient.”
Three witnesses testified that Atkins bit Officer Fritz. Officer Fritz testified that
Atkins bit his finger, that the bite was painful, that he observed tooth marks on his finger
consistent with a bite, and that he received medical treatment for the resulting injury.
Officer Ratelle testified that Officer Fritz said that Atkins bit him and that he observed an
injury to Officer Fritz’s finger that was consistent with having been bit. J.K. testified that
he saw Atkins bite one of the officers . The state also introduced photographs of Officer
Fritz’s finger, which showed that his finger was swollen, torn, bruised, and bleeding. The
photographs corroborated Officer Fritz’s testimony that Atkins bit his finger.
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Atkins argues that the photographs purporting to show the injury are not probative
because there were no tears in the leather glove that covered Officer Fritz’s finger. Atkins
also argues that it was “physically impossible” for J.K. to see Atkins bite the officer.
Lastly, Atkins argues that the state did not provide forensic evidence such as DNA to verify
that Atkins bit Officer Fritz. Atkins concludes: “It is just as likely that Fritz s ustained the
injury to his finger during the struggle to place [Atkins] in the squad car as that the injury
occurred by [Atkins] biting the glove.” Essentially, Atkins invites us to assess the
credibility of the witnesses and to weigh the evidence on appeal. That is not our role.
We view the evidence in the light most favorable to the verdict and assume that the
jury believed the state’s witnesses and disbelieved contrary evidence. Brocks, 587 N.W.2d
at 42. We therefore assume the jury believed the three witnesses who testified that Atkins
bit Officer Fritz. We also assume the jury believed Officer Fritz’s testimony regarding the
injury that resulted from the bite. Lastly, we assume that the jury viewed the photographs
of the injury as supporting the state’s version of the events. In sum, the evidence provided
a sufficient basis for the jury to reasonably conclude that Atkins assaulted Officer Fritz and
caused demonstrable bodily harm. We therefore do not disturb the verdict.
II.
Atkins contends that the district court erred in ruling that the state could impeach
him with both a felony conviction of receiving stolen property and a conviction of using a
false name if he were to testify at trial. Minnesota Rule of Evidence 609(a) pr ovides that
a witness’s credibility may be attacked using a prior conviction only if the crime “was
punishable by death or imprisonment in excess of one year . . . and the court determines
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that the probative value of admitting this evidence outweighs its p rejudicial effect” or if
the crime “involved dishonesty or false statement, regardless of the punishment.” Whether
the probative value of prior convictions outweighs their prejudicial effect is a matter within
the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).
When determining whether the probative value of a prior conviction outweighs its
prejudicial effect, a district court applies the five -factor balancing test set forth in State v.
Jones. 271 N.W.2d 534, 537-38 (Minn. 1978). The factors to be balanced are as follows:
(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 the use
of the prior crime to impeach), (4) the importance of [the]
defendant’s testimony, and (5) the centrality of the credibility
issue.

Id. A district court’s ruling on the impeachment of a witness b y prior conviction is
reviewed under a clear-abuse-of-discretion standard. State v. Hill, 801 N.W.2d 646, 651
(Minn. 2011).
Before trial, the state sought permission from the district court to impeach Atkins
with the following convictions if he were to tes tify at trial: two felony convictions of
receiving stolen property, one felony conviction of weapons possession, and one conviction
of using a false name. The district court ruled that the false-name conviction could be used
for impeachment because it is a crime of dishonesty. The district court also ruled that one
of Atkins ’s convictions of receiving stolen property could be used for impeachment,
reasoning that the probative value of the conviction outweighed any prejudicial impact.
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In ruling on the prior convictions, the district court addressed the Jones factors as
follows:
As it relates to the weapons charge, I deny the request
to use that for impeachment. I think that’s more prejudicial
than probative for this trial.
As it relat es to the receiving stolen property, there is
impeachment value as it relates to the whole person should the
Defendant testify. I’ve heard about the conviction and the
dates here. There is no similarity, so that weighs in favor of
admissibility rather th an keeping it out. And, you know,
credibility could be central to the issue, to weigh the whole
person.
With that, I will allow only one, receiving stol en
property [conviction] . . . I’m excluding the [second] receiving
stolen property [conviction] . . . and I’m excluding the weapons
[conviction]. I think it becomes too cumulative and prejudicial
to have that many counts.

Atkins argues that the district court should not have authorized impeachment with
his felony receiving-stolen-property conviction because it was more prejudicial than
probative. Specifically, Atkins argues that it “would have been more than sufficient to
impeach [him] with using a false name: allowing the jury to know he had two convictions
would have had no purpose other than to overly prejudice the jury against [him].”
The district court was entrusted to determine how many, if any, of Atkins’s prior
convictions were admissible for impeachment purposes if he were to testify. In doing so,
the district court was required to consider the Jones factors. The district court did so, and
it adequately explained its reasoning on the record. The district court ultimately allowed
only two of Atkins’s convictions to be used for impeachment, attempting to minimize any
risk of prejudice. We discern no abuse of discretion in this ruling.
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Atkins also argues that the district court “failed to sufficiently take into account the
need for [him] to testify.” Although the importance of a defendant’s testimony is one of
the Jones factors, “appellate courts . . . experience difficulty in evaluating the effect of any
abuse of discretion in this area without knowing the substance of any possible testimony.”
State v. Ihnot, 575 N.W.2d 581, 587 n.3 (Minn. 1998). “It is, of course, the responsibility
of the defendant to make an offer of proof as to what would have been the substance of
[his] testimony, had it been provided.” Id. Atkins did not make such an offer of proof. In
fact, when arguing to the district court that his prior convictions should not be admitted for
impeachment purposes, Atk ins did not mention this factor. We cannot fault the district
court for its purported failure to consider the need for Atkins’s testimony when Atkins did
not make an off er of proof regarding his proposed testimony or argue the importance of
that testimony to the district court.
Lastly, Atkins argues that his “constitutional right to present his theory of defense
through his own testimony was chilled” as a result of the d istrict court’s ruling. The
supreme court has stated that a defendant is not kept from testifying when he chooses
not to testify based on the evidence that would have been
admitted had he taken the stand. . . . The mere fact that a
[district] court would allow impeachment evidence if a
defendant chooses to testify does not necessarily implicate his
constitutional right to testify in his own defense. At a
minimum, in order to prevail on this argument, [a defendant]
would have to show that the [district] court abused its
discretion in ruling that the probative value of the impeachment
evidence outweighed its prejudicial effect; it is only when a
[district] court has abused its dis cretion that a defendant ’s
right to testify may be infringed by the threat of impeachment
evidence.

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Id. at 587 (quotation omitted).
Because the district court did not abuse its discretion in ruling that the probative
value of the impeachment evidence outweighed its prejudicial effect , Atkins’s claim that
he was unconstitutionally prevented from testifying is without merit.
Affirmed.