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This opinion will be unpublished and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
A18-1506

State of Minnesota,
Respondent,

vs.

Blanyon Toe Davies,
Appellant

Filed July 1, 2019
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-17-24864

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from his conviction for first-degree aggravated robbery,
appellant argues that the cumulative effect of the district court’s evidentiary errors deprived

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him of a fair trial, and that he is entitled to a new trial based on newly-discovered evidence.
We affirm.
FACTS
In September 2017, appellant Blanyon Toe Davies lured J.O. to an apartment
building in Brooklyn Park to discuss the sale of a car. Appellant and several other men
physically attacked J.O., threatened to shoot him, and took his money, his car keys, and his
phone. The state charged appellant with one count of first -degree aggravated robbery in
violation of Minnesota Statutes section 609.245, subdivision 1 (2016). The district court
conducted a jury trial in April 2018. Jurors heard testimony from J.O., police officers, and
witnesses present at the apartment building . The court received into evidence the
emergency calls, video surveillance tapes, and footage from an officer’s body camera. The
jury also heard testimony from appellant, who testified in his own defense a t trial and
denied hitting or robbing J.O. The jury returned a verdict on April 30, finding appellant
guilty of the charged crime . On May 16 , appellant filed a motion for a new trial. The
district court denied appellant’s motion as untimely and imposed the guidelines sentence.
This appeal follows.
D E C I S I O N
I. The district court’s evidentiary rulings do not constitute an abuse of
discretion.
Appellant raises several challenges to the district court’s evidentiary rulings. “We
review the district court’s evidentiary rulings for an abuse of discretion.” State v. Peltier,

3
874 N.W.2d 792, 802 (Minn. 2016). On appeal, appellant bears the burden of establishing
that the district court abused its discretion and that he was prejudiced as a result. Id.
a. Admissibility of appellant’s prior convictions
Appellant argues that the district court abused its discretion by permitting the state
to impeach appellant with two of his four prior felony convictions. A district court may
admit evidence of a defendant’s prior felony convictions for impeachment purposes if “the
probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid.
609(a)(1). In determining whether the probative value of a prior conviction outweighs its
prejudicial effect, district courts 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 . . . , (4) the importance of the defendant’s testimony,
and (5) the centrality of the credibility issue.” State v. Hill, 801 N.W.2d 646, 653 (Minn.
2011) (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). We will not reverse a
district court’s ruling absent a clear abuse of discretion. Id. at 651 (quotation omitted).
Before trial, the state moved to impeach appellant with four criminal convictions :
(1) aiding and abetting burglary in 2013, (2) criminal conspiracy in 2014, (3) possession
or sale of stolen checks in 2013, and (4) conspiracy to engage in the interstate transportation
of stolen goods in 2014. The district court ruled that the state could impeach appellant with
his convictions for possession or sale of stolen checks and for conspiracy to engage in the
transportation of stolen g oods, but could not impeach appellant with the remaining two
convictions. In reaching this determination, the district court properly analyzed each of the
Jones factors, balanced those factors, and explained its reasoning.

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First, the district court determ ined that the first factor weighed in the state’s favor
because the two convictions allowed the jury “to see the whole person and better evaluate
[appellant’s] testimony.” The admission of prior convictions allows the jury “to see the
‘whole person’ and t hus to judge better the truth of his testimony.” State v. Brouillette ,
286 N.W.2d 702, 707 (Minn. 1979) ( quotation omitted). The rules of evidence sanction
the use of felonies “not directly related to truth or falsity for purposes of impeachment, and
thus necessarily recognizes that a prior conviction, though not specifically involving
veracity, is nevertheless probative of credi bility.” Id. at 708. The district court did not
abuse its discretion by determining that appellant’s two prior convictions had impeachment
value because they allowed the jury to view appellant as a whole person.
Under the second factor, a prior conviction is admissible if the conviction occurred
within ten years of the offense for which the defendant is currently on trial. Minn. R. Evid.
609(b). The two relevant convictions occurred in 2013 and in 2014 . Appellant
acknowledges that this factor weighs in favor of admission.
Under the third factor, we recognize that “if the prior conviction is similar to the
charged crime, there is a heightened danger that the jury will use the evidence not only for
impeachment purposes, but also substantively.” State v. Grassler, 505 N.W.2d 62, 67
(Minn. 1993) . However, the potential for the jury to misuse the prior conviction is
substantially reduced if the past crimes are sufficiently different from the crime charged.
State v. Ihnot , 575 N.W.2d 581, 586 -87 (Minn. 1998 ) (quotation omitted) . Here,
appellant’s two prior convictions are sufficiently different from the current charge of
aggravated robbery, reducing the potential for misuse.

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Finally, Minnesota courts often consider the fourth and fifth factors together. State
v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006). “If credibility is a central issue in the
case, the fourth and fifth Jones factors weigh in favor of admission of the prior
convictions.” Id. Credibility is generally a critical issue in the case if “the issue for the
jury narrows to a choice between defendant’s credibility and that of one other person.”
Ihnot, 575 N.W.2d at 587. The district court determined that both factors were satisfied
because credibility was a central issue at trial, and the record supports this determination.
Based upon a review of the Jones factors and the record as a whole , we conclude
that the district court did not abuse its discretion by ruling that the state could impeach
appellant with two of his convictions at trial.
b. Admissibility of witness’s prior convictions
Appellant argues that the district court abused its discretion by excluding evidence
of J.O.’s prior convictions. D ifferent considerations apply to the impeachment of a
defendant with a prior conviction and a w itness with a prior conviction . State v. Lanz -
Terry, 535 N.W.2d 635, 639 (Minn. 1995). “[W]hen evaluating whether to admit a prior
conviction of a prosecution witness, the major concerns are to protect the witness from
being harassed and unduly embarrass ed, the jury from being confused and misled, and
everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged
trial.” Id. We apply an abuse -of-discretion standard of review to a district court’s ruling
on this issue. Id. at 641.
Appellant sought to impeach J.O. with evidence of his prior convictions for
(1) giving police a false name in 2015, (2) drug possession in 2017, (3) domestic assault in

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2013, and (4) domestic assault , by strangulation, in 2011. The district court all owed the
defense to impeach J.O. with the false -name conviction , but excluded evidence of the
remaining three offenses based on its “overriding concerns” that the jury “might be
confused or might make a decision based on an improper basis .” The district c ourt’s
reasoning is consistent with Minnesota caselaw that cautions against admitting convictions
that may lead “the jury to conclude that [the witness] was a bad person who deserved to be
the victim of a crime, which would amount to a decision being made on an improper basis.”
Id. at 639. The district court was “concern[ed] with getting into criminal conduct that does
not touch on someone’s credibility or veracity.” For that reason, the district court allowed
the false -information conviction, which touched on J.O.’s credibility, but excluded the
remaining convictions, which did not. We discern no abuse of discretion in this ruling.
c. Admissibility of testimony that another participant was not charged
Appellant argues that the district court abused its discretion by permitting a witness
to testify that R.G., who also participated in the attack , was not charged with a crime .
Relevant evidence is generally admissible, while evidence that is not relevant is not
admissible. Minn. R. Evid. 402. Relevant evidence may be excluded if its “probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Minn. R. Evid. 403. “Generally, evidence is relevant and has
probative value when it logically tends to prove or disprove a material fact in issue.” State
v. Mosley, 853 N.W.2d 789, 797 (Minn. 2014).
Here, the jury heard testimony that J.O. and R.G. fought in the apartment building.
The prosecutor moved to introduce evidence that R.G. was not charged with a crime ,

7
despite hitting J.O. The prosecutor argued that such evidence could be used to show bias,
in that appellant was trying to place responsibility for the crime solely on R.G. The district
court permitted the state to ask two questions about whether the witness knew that R.G.
was not charged with a crime. We determine that the evidence was relevant to the state’s
case, and the probative value of the questions was not substantially outweighed by the
danger of unfair prejudice, confusion, or misleading the jury. The district court’s ruling
does not constitute an abuse of discretion.
d. Prosecutorial misconduct
Appellant argues that he was deprived of a fair trial because the state failed to
prevent a police officer from testifying that appellant had an outstanding probation warrant
from the United States Marshals. The standard of review depends on whether the defendant
objected at trial. State v. Whitson , 876 N.W.2d 297, 304 (Minn. 2016) . Where, as here,
the defendant objects, we use a two -tiered harmless-error test based on the seriousness of
the misconduct. Id. We review “unusually serious” prosecutorial misconduct to determine
whether the misconduct was harm less beyond a reasonable doubt, while less -serious
prosecutorial misconduct requires an analysis of “whether the misconduct likely played a
substantial part in influencing the jury to convict.” State v. Nissalke, 801 N.W.2d 82, 105
(Minn. 2011) (quotation omitted). We conclude that appellant is not entitled to relief under
either standard because, even assuming misconduct occurred, the alleged misconduct was
harmless beyond a reasonable doubt.
“The state has a duty to prepare its witnesses, prior to testifying, to avoid
inadmissible or prejudicial statements.” State v. McNeil , 658 N.W.2d 228, 232 (Minn.

8
App. 2003). Improper testimony by a state’s witness may be cons idered prosecutorial
misconduct and justify reversal. State v. Mahkuk, 736 N.W.2d 675, 689-90 (Minn. 2007).
We are “much more likely to find prejudicial misconduct when the state intentionally elicits
impermissible testimony.” McNeil, 658 N.W.2d at 232. “[A]n intentional elicitation of
impermissible testimony, although erroneous, will warrant reversal only when it is likely
that the impermissible testimony substantially weighed on the jury’s decision.” Id.
The state presented evidence from a Brooklyn Park police officer who spoke with
appellant during a traffic stop. The officer testified that appellant could not provide an
identification card and gave the officer an incorrect name. The testimony continued:
PROSECUTOR: Okay. What did you do to find out the correct
ID of the person?
OFFICER: Well, with the previous information I had received
I looked up the previous report with the suspect from this
robbery or assault issue which was [appellant]. I ran his full
name and date of birth. I brought up a photograph of him and
it was clearly the driver that I had been speaking with.
PROSECUTOR: Okay. And do you see that person in the
courtroom today?
OFFICER: Yes, I do. [Witness identifies appellant.]
. . .
PROSECUTOR: Okay. And then after you identifie d
[appellant] as the driver what did you do next?
OFFICER: I knew he was lying and I also saw that a warrant
appeared for his arrest, I did have that previous information
that he had a warrant from the U.S. Marshals for a probation—
Even if we assume an e rror occurred, we determine that the alleged misconduct is
harmless beyond a reasonable doubt. Factors relevant to this determination include “how

9
the improper evidence was presented, whether the state emphasized it during trial, whether
the evidence was highly persuasive or circumstantial, and whether the defendant countered
it.” State v. Wren, 738 N.W.2d 378, 394 (Minn. 2007). Here, the evidence amounted to a
single phrase and the prosecutor did not deliberately attempt to elicit the information from
the officer. See State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987) (concluding that brief
and isolated comments from witness were unlikely to have had a substantial impact on the
verdict). The defense attorney objected and moved to stri ke. The district court sustained
the objection and instructed the jury to disregard the officer’s last statement. The
prosecutor did not attempt to elicit the information again after the court sustained the
objection. See Whitson, 876 N.W.2d at 304-05.
Additionally, the district court immediately issued a curative instruction and advised
the jury to “disregard that last response about any warrant, that’s totally unrelated to
anything here and you shouldn’t consider it in your deliberations at all.” We presume that
the jurors follow the district court’ s instructions, and that the curative instructions were
effective in ameliorating the risk of prejudice to appellant. See State v. Gatson, 801 N.W.2d
134, 151 (Minn. 2011) (noting that curative instruction s lessen the risk of prejudice) .
Because the alleged misconduct was harmless beyond a reasonable doubt, we determine
that the reversal on the basis of prosecutorial misconduct is not warranted.

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e. Violation of discovery rules
Appellant argues that the stat e violated the discovery rules by failing to timely
disclose a body -camera recording . During trial, an officer testified that he interviewed
J.O., and that the interview was captured in a body-camera recording. The prosecution and
the defense were unawar e of the recording. The defense requested a continuance, which
the district court granted.
“If a party fails to comply with a discovery rule or order, the court may, upon notice
and motion, order the party to permit the discovery, grant a continuance, or enter any order
it deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8. The district court is
particularly well-suited to determine the appropriate remedy for the violation and has
discretion in deciding whether to impose sanctions. State v. Lindsey, 284 N.W.2d 368, 373
(Minn. 1979). The district court consider s “(1) the reason why the disclosure was not
made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that
prejudice by a continuance; and (4) any other relevant factors. ” Id. Whether a discovery
violation occurred is a question of law, which we review de novo. State v. Bailey , 677
N.W.2d 380, 397 (Minn. 2004). We review a trial court’s decis ion on whether to impose
sanctions for discovery violations for an abuse of discretion. State v. Patterson , 587
N.W.2d 45, 50 (Minn. 1998).
The district court considered the relevant factors and granted appellant’s request for
a continuance. First, the d istrict court considered the reason for the state’s failure to
disclose the evidence to the defense . The district court noted that the wrong case number
was assigned to the body-camera recording , and the prosecution was unaware of the

11
recording. Second, the district court addressed the prejudice to appellant. Even when a
discovery violation occurs, the state’s violation of a discovery rule will not result in a new
trial absent a showing that appellant was prejudiced. State v. Palubicki, 700 N.W.2d 476,
490-91 (Minn. 2005). The district court did not believe that the state intentionally withheld
the recording, but acknowledged that the late disclosure “might have impacted ” how the
defense prepared and presented the case. Third, the district court considered the feasibility
of rectifying th e prejudice with a continuance. Defense counsel requested a three-day
continuance to review the recording, which the district court granted. Lastly, the district
court considered other relevant factors. Counsel sought to play a portion of the recording
to the jury and agreed on an introductory instruction. The district court read the agreed -
upon instruction to the jury and played a portion of the recording to the jury.
Based on this record, we determine that the district court adequately considered the
relevant factors and determined that a continuance, coupled with an explanatory instruction
to the jury, cured any potential prejudice to appellant. We conclude that the district court’s
decision to grant a continuance based on the state’s failure to comply with a discovery rule
constitutes an appropriate remedy.
f. Cumulative effect of errors
Appellant argues that the cumulative effect of the alleged evidentiary errors
deprived him of a fair trial. In rare cases, “the cumulative effect of trial errors can deprive
a defendant of his constitutional right to a fair trial when the errors and indiscretions, none
of which alone might have been enough to tip the scales, operate to the defendant’s
prejudice by producing a biased jury.” State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012)

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(quotation omitted). Because we determine that there were no trial errors, we conclude
that appellant was not denied a fair trial.
II. The district court did not abuse its discretion by denying appellant’s motion
for a new trial as untimely.
Appellant argues that the district court abused its discretion by denying his motion
for a new trial on the basis of newly-discovered evidence. A district court may grant a new
trial in the interests of justice or any of the six grounds for a new trial articulated in
Minnesota Rule of Criminal Procedure 26.04, subd. 1(1). The motion must be served
within 15 days after the verdict and must be heard within 30 days of the verdict, unless the
court extends the period for good cause. Id., subd. 1(3). However, the rules of criminal
procedure do not allow a district court to extend the deadline for serving a new-trial motion.
Minn. R. Crim. P. 34.02. We review a district court’ s denial of a new-trial motion for an
abuse of discretion. State v. Green, 747 N.W.2d 912, 917 (Minn. 2008).
The jury returned its verdict on April 30, 2018. Appellant filed a motion for a new
trial on May 16, 2018—more than 15 days after the verdict. The district court denied the
motion as untimely under rule 26.04, and advised counsel that the court could not extend
the time to file the motion under rule 34.02. Appellant concedes that the new-trial motion
was filed after the filing deadline, but urge s this court to review the motion on its merits.
We decline to do so. “The rules of criminal procedure do not permit the district court to
extend the deadline for serving a new-trial motion.” State v. DeLaCruz, 884 N.W.2d 878,
884 (Minn. App. 2016). Wh ile rule 34.02 allows the district court to extend some
deadlines, the rule “specifically excludes the deadline for a defendant’s new-trial motion.”

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Id. (citing Minn. R. Crim. P. 34.02 (providing that a court “may not extend the time for
taking any action under Rule[] . . . 26.04, subd. 1(3)”)). It is uncontested that a ppellant’s
new-trial motion was untimely. Consequently, the district court did not abuse its discretion
in denying the motion.
Affirmed.