State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1326

State of Minnesota,
Respondent,

vs.

Kerry John Conrad,
Appellant.

Filed July 1, 2019
Affirmed
Cochran, Judge

Dakota County District Court
File No. 19HA-CR-18-137

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Tori K. Stewart, As sistant County
Attorney, Hastings, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Florey, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this direct appeal from final judgment of conviction and sen tence for felony
fifth-degree assault, appellant argues that the district court abused its discretion and

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deprived appellant of a fair trial by ruling that he could not claim self-defense, and by ruling
that the state could introduce appellant’s prior convictions for impeachment purposes. We
affirm.
FACTS
On January 11, 2018, officers responded to a neighborhood in Eagan after appellant
Kerry John Conrad told dispatch that he had been punched severa l times by an unnamed
assailant. Upon arriving, police found Conrad standing on a street corner wearing pants, a
jacket, but no shirt. Police officers spoke with Conrad about the assault, but he would not
give the officers any information about where the fight had taken place or who had hit him.
Shortly after this conversation, L.M. drove up to the officers. L.M. was crying and had a
cut above her eyebrow. Officers asked to speak with her and L. M. reported that Conrad
hit her with an open hand and cau sed her to fall into a dresser . Officers placed Conrad
under arrest. He was later char ged with fifth-degree assault, fear of bodily harm or death
in violation of Minn. Stat. § 609.224, subd. 4(b) (2016), and fifth-degree assault, inflict or
attempt bodily harm in violation of Minn. Stat. § 609.224, subd. 4(b).
L.M. and Conrad lived together in the basement of a house. On January 11, three
separate incidents took place w ithin the home. Conrad’s charge d offenses stem from the
third incident. The first incident involved a verbal confrontation between Conrad and L.M.
The second incident involved an a rgument between L.M. and Conra d concerning some
money he had found in the bedroom. Conrad discovered the money, took it, and proceeded
to walk back upstairs. As he was going upstairs, L.M. followed him. He attempted to kick
L.M., and she grabbed his leg, which caused him to fall backwar ds. The third incident

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involved the charged offenses. Conrad went downstairs and woke L.M. up to accuse her
of taking his cellphone. He pulled her out of bed and hit her with an open hand across the
chin. This caused L.M. to fall back onto a dresser, and she cut her face above her left eye.
As she was getting up off the ground, Conrad stomped on her han ds, which fractured a
finger. At some point, Conrad grabbed L.M.’s phone and held it above her head. She tried
jumping up towards it and may have scratched him.
At a pretrial hearing, the district court considered whether t o admit Conrad’s prior
convictions for impeachment purpos es. Conrad’s four prior conv ictions include: two
f e l o n y v i o l a t i o n s o f a n o r d e r f o r p r o t e c t i o n ( O F P ) i n 2 0 1 6 , o n e felony violation of a
domestic-abuse no-contact order (DANCO) in 2013, and one felony domestic assault in
2012. The district court found t hat these prior convictions we re admissible for
impeachment purposes.
At trial, L.M. testified to the above incidents that occurred on January 11. The
police officers who responded to the scene testified regarding their interactions with
Conrad and L.M. The officers also testified that they did not see any injuries on Conrad’s
body. After L.M. and one of the officers had testified, Conrad waived his right to testify.
The state then called three additional witnesses, including a doctor who treated L.M. The
doctor testified that he treated her for a fractured finger and a laceration above her eye.
After resting its case, the state moved to bar Conrad from arguing self-defense. The
district court found that Conrad had not met his burden of production to present a sufficient
threshold of evidence in order to make a self-defense claim and submit it to the jury. The

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district court granted the state’s motion and denied Conrad’s r equest to continue with his
claim of self-defense. Conrad then rested his case without calling any witnesses.
The jury found Conrad guilty o f both counts of fifth-degree assault, and the district
court sentenced him to 30 months on count two. This appeal follows.
D E C I S I O N
Conrad argues that the district court abused its discretion by denying his request for
a self-defense instruction and by ruling that the state could introduce his prior convictions
for impeachment purposes. We address his arguments in turn.
I. The district court did not abuse its discretion by denying Conrad’s request
to continue with his self-defense claim or by failing to instru ct the jury on
self-defense.

The determination of whether a j ury instruction should be given “lies within the
discretion of the district court and will not be reversed but for an abuse of that discretion.”
State v. Johnson, 719 N.W.2d 619, 629 (Minn. 2006) (quotation omitted). A district court
abuses its discretion if it refuses to give an instruction on the defendant’s theory of the case
when there is evidence to support the theory. Id. If the district court refuses to give an
instruction, but the defense is not prejudiced, then there is n o reversible error. State v.
Hannon, 703 N.W.2d 498, 509 (Minn. 2005). Conrad argues that the district court abused
its discretion by failing to instruct the jury on self-defense.
To be entitled to a self-defense instruction, the defendant bea rs the burden to
establish evidence that supports a claim of self-defense. State v. Basting, 572 N.W.2d 281,
286 (Minn. 1997). A defendant m ust provide reasonable evidence showing: “(1) an
absence of aggression or provocation; (2) an actual and honest belief that . . . bodily harm

5
would result; (3) a reasonable basis existed for this belief; and (4) an absence of reasonable
means to retreat or otherwise avoid the physical conflict.” State v. Soukup , 656 N.W.2d
424, 428 (Minn. App. 2003) (holding that these principles of self-defense apply to assault
cases), review denied (Minn. Apr. 29, 2003). The duty to retreat does not exist if acting in
s e l f - d e f e n s e w i t h i n t h e h o m e . State v. Glowacki , 630 N.W.2d 392, 402 (Minn. 2001).
Additionally, the degree of force used in self-defense must not exceed what is deemed
necessary to a reasonable person in similar circumstances. Basting, 572 N.W.2d at 286.
Conrad argues that the district court abused its discretion for three reasons: (1) the
district court did not view the evidence in the light most favo rable to the defense, (2) the
district court incorrectly applied the standard for self-defens e, and (3) the district court
found that Conrad had a duty to retreat. To best address these issues, we analyze the four
prongs of a self-defense claim in turn.
A. Absence of Aggression or Provocation
The district court found that the re was no evidence to support the first prong of a
self-defense claim—the absence of aggression or provocation by the defendant. When
evaluating whether a basis exists in the evidence for a jury in struction, the district court
must view the evidence “in the light most favorable to the party requesting the instruction.”
State v. Edwards, 717 N.W.2d 405, 410 (Minn. 2006). Conrad argues that the district court
failed to consider the following evidence: (1) that L.M. admitt ed to chasing Conrad and
grabbing his leg, (2) that he to ld officers he had been assault ed, and (3) that he fled the
scene of the assault without proper winter gear.

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There were three separate incidents that occurred the night of the assault. L.M.
admitted to grabbing Conrad’s leg during the second incident. The second incident
occurred when Conrad discovered money hidden in the bedroom, attempted to take it, and
k i c k e d h i s l e g b a c k w a r d s t o w a r d s L . M . a s h e w a s c l i m b i n g t h e s tairs. L.M.’s act of
grabbing Conrad’s leg during the second incident has no bearing on his self-defense claim,
which arises out of the third incident.
Moreover, Conrad did not estab lish evidence that L.M. initiated the third incident.
Although Conrad initially told o fficers that he was hit by an u nnamed woman, this is not
sufficient to show an absence of aggression or provocation. See State v. Stephani , 369
N.W.2d 540, 546 (Minn. App. 1985), review denied (Minn. Aug. 20, 1985) (stating that
appellant’s statements to dispatch that he had been assaulted were not “probative to identify
who initiated the conflict”). And Conrad does not explain how his lack of proper winter
clothing demonstrated an absence of aggression. In sum, viewing the evidence in the light
most favorable to Conrad, Conrad did not provide sufficient evidence to show an absence
of aggression or provocation.
B. Honest Belief that Harm would Result
The district court found that Conrad failed to show an “honest belief or that there
was even a perception, that given the facts described by the wi tnesses in this case so far,
that there was any imminent da nger of death or great bodily har m on the part of the
defendant.” Conrad argues that he did not have to establish an honest belief concerning
imminent danger of death or great bodily harm. Instead, Conrad contends, he only had to
show an honest belief that harm would result.

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“In Minnesota, a person may act in self-defense if he or she reasonably believes that
force is necessary and uses only the level of force reasonably necessary to prevent the
bodily harm feared.” State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014). The right to
self-defense in non-deadly force cases is codified at Minn. Sta t. § 609.06, subd. 1(3)
(2018). The Minnesota Supreme Court has read this statute to r equire, among other
elements: “the defendant’s actual and honest belief that he or she was in imminent danger
of bodily harm.” Devens, 852 N.W.2d at 258 (quotation omitted).
Conrad was unable to show that he held an honest belief that h e was in imminent
danger of bodily harm because he did not present any evidence o r provide testimony
regarding the second prong. “A defendant claiming self-defense i s h a m p e r e d t o s o m e
extent if he does not testify.” Stephani, 369 N.W.2d at 546. Even considering the
surrounding circumstances, there is nothing in the record to support an honest belief. L.M.
testified that she was asleep immediately prior to Conrad’s assault and there was no other
evidence presented that would contradict her statements. Conrad did not provide sufficient
evidence to show an honest belief that he was in imminent danger of bodily harm.
C. Reasonable Basis for Belief
This prong involves an objective test of whether an ordinary p erson would think
that harm was imminent and that the defendant’s subsequent actions were necessary. See
Johnson, 719 N.W.2d at 631. Conrad does not cite to any evidence in his brief that would
support reasonable grounds for a belief that harm was imminent and his actions were
necessary. Because Conrad did not point to any evidence, he failed to sufficiently establish
the third prong.

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D. Absence of Reasonable Means to Retreat
Lastly, the district court found that there was no evidence to show that Conrad
retreated. When acting in self-defense in the home, a person is not required to retreat before
using reasonable force to defend himself. Glowacki, 630 N.W.2d at 402. But, even when
a defendant does not have the duty to retreat, “the key inquiry will still be into the
reasonableness of the use of force and the level of force under the specific circumstances
of each case.” Id. Conrad did not establish evidence to support that his use of force was
reasonable.
Conrad did not establish suffici ent evidence to support a self -defense claim. The
testimony of L.M. and the police officers does not meet Conrad’s burden of production. In
sum, the district court did not abuse its discretion in denying Conrad’s request for a
self-defense instruction.
II. The district court did not abuse its discretion by ruling that the state could
introduce Conrad’s prior convictions for impeachment purposes.

“A district court’s ruling on the admissibility of prior convictions for impeachment
of a defendant is reviewed under a clear abuse of discretion st andard.” State v. Swanson,
707 N.W.2d 645, 654 (Minn. 2006). If the district court abuses its discretion, this court
will reverse only if the error substantially influenced the jury’s verdict. State v. Carridine,
812 N.W.2d 130, 141 (Minn. 2012). Conrad argues that the distr ict court abused its
discretion by ruling that the sta te could introduce four prior convictions as impeachment
evidence, if Conrad testified, because the prejudicial effect o f admitting his past

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convictions greatly outweighed any probative value and the court did not properly consider
the Jones factors.
Evidence that a defendant has been convicted of a felony within the last ten years is
admissible for impeachment if the court “determines that the probative value of admitting
this evidence outweighs its pre judicial effect.” Minn. R. Evid . 609(a)(1). When making
this determination, the district court must 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 o f
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). The district court should demonstrate
on the record that it has exercised its discretion and considered the factors set forth in Jones.
State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991).
It is error for the district court “to fail to make a record of its consideration of the
Jones factors.” State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007). Here, the district court
failed to make a record of its consideration of the Jones factors and therefore erred. But,
t h e e r r o r i s h a r m l e s s i f a p r o p e r a p p l i c a t i o n o f t h e f a c t o r s w ould have resulted in the
admission of the prior convictions. Swanson, 707 N.W.2d at 655. We thus examine the
Jones factors in turn to determine whether the district court abused its discretion by
admitting Conrad’s prior convictions.

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A. Impeachment Value
Conrad’s prior convictions were for felony domestic assault, f elony violation of a
DANCO, and two felony violations of an OFP. “[T]he fact that a prior conviction did not
directly involve truth or falsity does not mean it has no impea chment value.” State v.
Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Prior convictions “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. Moreover, the supreme court has held that
“it is the general lack of respect for the law, rather than the specific nature of the conviction,
that informs the fact-finder abou t a witness’s credibility . . . . In other words, any felony
conviction is probative of a witness’s credibility.” State v. Hill , 801 N.W.2d 646, 652
(Minn. 2011). This factor weighs in favor of admission.
B. Date of Convictions and Subsequent History
Conrad does not argue that the dates of his convictions weigh against admissibility.
His four prior convictions all took place within the last ten y ears and fall squarely within
the parameters of Minn. R. Evid. 609(b). This factor weighs in favor of admission.
C. Similarity of Past Crimes to the Crime Charged
When a prior conviction is similar to the charged crime, “ther e i s a h e i g h t e n e d
danger that the jury will use th e evidence not only for impeach ment purposes, but also
substantively.” Gassler, 505 N.W.2d at 67. Thus the more similar the prior conviction s
are to the current offense, the more likely that the evidence i s more prejudicial than
probative. Swanson, 707 N.W.2d at 655.

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Here, Conrad has a prior conviction for felony domestic assault, which is the same
crime he was charged with in this case. His other prior convic tions involve
domestic-related conduct, including a violation of a DANCO and two violations of an OFP.
Because these crimes are similar to the crimes charged, this fa ctor weighs against
admission. But, while this factor weighs against admission, the analysis does not end here.
See State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (holding that district court did not
abuse its discretion by refusing to bar the use of two prior ra pe convictions for
impeachment purposes when defendant was on trial for criminal sexual conduct); State v.
Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (holding that district court did not abuse its
discretion by refusing to bar the use of prior conviction even though “prior crime was
basically the same crime with which defendant was charged”). Moreover, the state elicited
testimony from L.M. regarding Co nrad’s prior domestic-assault c onviction during its
case-in-chief as relationship evidence pursuant to Minn. Stat. § 634.20 (2018). As
testimony regarding the prior felony domestic-assault conviction had already been elicited,
there is no prejudice in allowing this same conviction as impeachment evidence.
D. Importance of Defendant’s Testimony and the Centrality of Credibility
If credibility is a central issu e in the case, then the fourth and fifth factors weigh in
favor of admission. Swanson, 707 N.W.2d at 655. Thus, “if the issue for the jury narrows
to a choice between defendant’s credibility and that of one other person then a greater case
can be made for admitting the impeachment evidence, because the need for the evidence is
greater.” Bettin, 295 N.W.2d at 546. Here, credibility was a central issue because Conrad
gave notice that he intended to claim self-defense while L.M. testified that Conrad initiated

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the assault. If Conrad had met his burden of production to go forward with his self-defense
claim, the jury would have had t o weigh L.M.’s testimony agains t Conrad’s statements.
The fourth and fifth factors weigh strongly in favor of admission.
Because only one of the Jones factors weighs against the admission of Conrad’s
prior convictions, and credibility was a central issue in this case giving greater importance
to the impeachment evidence, the district court did not abuse its discretion.1 See Swanson,
707 N.W.2d at 656 (holding that one factor weighing against adm issibility does not
preclude admission of the evidence).
Affirmed.

1In a pro se supplemental brief, Conrad seems to argue that he r eceived ineffective
assistance of counsel. Without further development of the reco rd, this court cannot
determine the merit of Conrad’s ineffective-assistance claim. See State v. Gustafson, 610
N.W.2d 314, 321 (Minn. 2000) (“A postconviction hearing provide s the court with
additional facts to explain the attorney’s decisions so as to p roperly consider whether a
defense counsel’s performance was deficient.” (quotation omitted)). His pro se brief also
contains other arguments that have been addressed in this opinion.