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This opinion will be unpublished and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
A18-1589

State of Minnesota,
Respondent,

vs.

Dana Dionte Davis,
Appellant.

Filed August 12, 2019
Affirmed
Smith, John, Judge*

Dakota County District Court
File No. 19HA-CR-16-4075

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

James C. Backstrom, Dakota County Attorney, Torrie J. Schneider, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Smith, John, 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
SMITH, JOHN, Judge
We affirm the judgment of conviction of appellant Dana Dionte Davis because we
conclude that the prosecutor did not err by impeaching an alibi witness with details of a
prior conviction or by impeaching appellant’s testimony with alleged “were they lying”
questions when referring to work schedules.
FACTS
Appellant quit his position as a cook at Smashburger in Eagan, Minnesota, where
he had worked for approximately three weeks. The following day, shortly before
Smashburger closed at 10:00 p.m., appellant entered the restaurant wearing a blue hooded
sweatshirt with the hood covering part of his face. An employee, A.M., was “sitting in a
booth reading” on her phone and “wasn’t paying a lot of attention,” but remembered a man
entered the restaurant who was “ta ll, black, [and] wearing a hoodie,” which was “a dark
color, gray or black.”
Appellant walked into the kitchen where a manager, G.W., was working. Although
G.W. and appellant had not worked a shift together, G.W. knew who appellant was and
recognized him. Appellant demanded all the money in the safe, to which G.W. replied
“Very funny, Dana.” Appellant then removed his hood and said “he was tired of motherf-
---rs disrespecting him.” Appellant reite rated his demand for the money in the safe.
Another employee, M.H., who had previously worked with appellant and recognized him
due to his height, body shape, and uncovered face, approached to ask appellant what was

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wrong but appellant pushed M.H. away to continue demanding money. At trial, both M.H.
and G.W. were “100 percent” certain that appellant was the robber.
G.W., either on his own accord or because he was forced by appellant, entered the
refrigerator unit, where he spent between “30 seconds and two minutes” before exiting. At
some point during this time, G.W. pulled the silent alarm in the refrigerator. While G.W.
was in the refrigerator, M.H. spoke with appellant for at least a minute . During this talk,
M.H. referred to appellant as “Dana” and appellant “stated that he was disrespected the day
prior to him quitting.” Appellant asked M.H. whether the store had any cameras, and M.H.
replied that the store did have cameras. However, appellant then asked for the cameras’
tapes and M.H. admitted there were no cameras in the store.
Once G.W. exited the freezer, appellant began repeatedly punching G.W. in the face
and body while demanding money. After appellant stopped punching G.W., G.W. opened
the safe and gave appellant “leather banking envelopes,” “plastic deposit envelopes,” and
“rolls of change ,” for a total of $700 -$1,100. Afterwards, A.M. entered the kitchen and
did not see either the assault or G.W. giving money to appellant. As A.M. entered the
kitchen, M.H. saw “an accomplice” standing outside the kitchen door, whom he described
as an “African-American” male wearing a “black hoodie or jacket” and “[b]lack pants and
a black pair of shoes with red stripes.” M.H. noticed that this second man had “what
appeared to be the outline of a gun,” although the man did not enter the kitchen.
Appellant then forced G.W., M.H., and A. M. into the freezer (which could only be
accessed through the refrigerator unit) and locked the refrigerator door by zip tying the key
to the handle. Appellant made th reats to the effect that “if anyone exited the freezer, he

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would kill everyone.” Due to appellant’s threats, G.W., M.H., and A. M. waited several
minutes before calling 911.
Officers responded within a minute or two of the silent alarm going off at
Smashburger. Officer Roche of the Eagan Police Department arrived at the restaurant and
saw “a van with its hazard lights on stopped in the lane of traffic immediately adjacent to
the back door.” Officer Roche did not see any pedestrians nearby nor did he see a nyone
run to the vehicle from the restaurant. Officer Roche stopped behind the van and exited
his squad car to approach the van, but the van took off. Officer Roche pursued the vehicle
for around 15 minutes, and ended the pursuit using a precision immobi lization technique.
After stopping the car, police arrested D .C. and W.D. W.D., appellant’s brother, is an
African-American male who was “wearing a black hooded sweatshirt,” “red shorts under
his black jeans,” and “[b]lack shoes with white trim.” A load ed handgun was recovered
from the car, but no bank bags, “large amounts of cash,” or rolls of coins were found in the
van.
Other officers arrived on scene at Smashburger within 10 minutes, and did not see
anyone fleeing the restaurant. After securing the building, officers discovered A.M., G.W.,
and M.H. locked in the freezer. G.W. and M.H. immediately identified appellant as the
perpetrator to officers. Officers also discovered rolls of coins strewn throughout the
restaurant and outside, some of which were discovered near the back entrance and others
were found “more towards the southeast, nowhere near” where the getaway van had been
located.

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Subsequently, appellant was charged with one count of first -degree aggravated
robbery (count 1), in violation of Minn. Stat. § 609.245, subd. 1 (2016); one count of aiding
and abetting first -degree aggravated robbery (count 2), in violation of Minn. Stat.
§ § 609.05, subd. 1 (2016), .245, subd. 1; one count of kidnapping (count 3), in violation
of Minn. Stat. § 609.25, subd. 1 (2016); and one count of false imprisonment (count 4), in
violation of Minn. Stat. § 609.255, subd. 2 (2016). Before trial, the state amended the
complaint to dismiss count 2 (aiding and abetting first -degree aggravated robbery) and to
add a second count of kidnapping (count 5), in violation of Minn. Stat. § 609.25, subd.
1(2); a third count of kidnapping (count 6), in violation of Minn. Stat. § 609.25, subd. 1(2);
a second count of false imprisonment (count 7), in violation of Minn. Stat. § 609.255, subd.
2; and a third count of false imprisonment (count 8), in violation of Minn. Stat. § 609.255,
subd. 2.
Appellant waived his right to a jury trial and a bench trial was conducted. The
district court found appellant guilty on all counts. Foll owing conviction, appellant
attempted to escape from custody. Before sentencing, appellant sought a downward
dispositional departure (probation), although it was characterized as a downward
durational departure. At the sentencing hearing, the district co urt sentenced appellant to
111 months for count 1, 21 months for count 3 to run concurrent with count 1, 21 months
for count 5 to run consecutive with counts 1 and 6, and 21 months for count 6 to run
consecutive with counts 1 and 5. Appellant was convicte d of but not sentenced on counts
4, 7 or 8.

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D E C I S I O N
I. The prosecutor did not err by eliciting details underlying D .J.’s 2006
conviction.

Appellant argues that the prosecutor committed prosecutorial misconduct by
improperly impeaching a defense witness, D.J., by asking a question about the details of a
2006 conviction . Appellant contends that the prosecutor plainly erred because the
prosecutor “impeached [D.J.] with his first -degree aggravated robbery conviction and
asked him to confirm a key detail of that prior conviction—namely, that he had committed
the crime with [appellant].” Appellant also contends that the prosecutor did not provide
notice nor receive court approval to impeach D.J. with the 2006 conviction.1 Appellant did
not object at trial during the state’s cross-examination or during closing argument.
This court reviews unobjected-to prosecutorial misconduct under a modified plain-
error standard where the appellant must show (1) an error and (2) that was plain. State v.
Parker, 901 N.W.2d 917, 926 (Minn. 2017). An error is plain if it is “clearly contrary to
the law at the time of the appeal.” State v. Dobbins, 725 N.W.2d 492, 513 (Minn. 2006) .
If the appellant can show plain error, then the state bears the burden of demonstrating “that

1 On April 9, 2018, the prosecutor informed the district court that it had not yet received
from appellant the middle names or birthdates of appellant’s witnesses and could not
determine whether the witnesses had criminal records. On April 10, 2018, the pr osecutor
informed the district court that, despite not receiving the defense witnesses’ middle names
or birthdates, the state determined that at least one defense witness, D.J., had a criminal
record and that the state intended to impeach D.J. with “a firs t-degree aggravated robbery
that is from 2006 that was committed with both [appellant] and W .D. [appellant’s
brother].” Upon the state telling the court of its intent to impeach D.J., the district court
merely responded “[o]kay.” Appellant did not voice any objections to the state providing
notice this way, nor does appellant now contend that the district court erred by not applying
the Jones factors. See State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

7
the plain error did not affect the [appellant’s] substantial rights.” Parker, 901 N.W.2d at
926. “If each of these [three] prongs is met, we will address the error only if it seriously
affects the fairness and integrity of the judicial proceedings. ” State v. Kuhlmann , 806
N.W.2d 844, 852-53 (Minn. 2011).
Under the Minnesota Rules of Evidence, a witness’s credibility may be attacked by
evidence of a past con viction. See Minn. R. Evid. 609(a). Such a past conviction is not
admissible, however, to “prove to the character of a person in order to show action in
conformity therewith.” Minn. R. Evid. 404(b). Generally, “cross-examination as to the
witness’s prior convictions may ordinarily extend only to the fact of conviction, the nature
of the offense, and . . . identity.” State v. Griese, 565 N.W.2d 419, 426 (Minn. 1997); see
State v. Williams, 210 N.W.2d 21, 25 (Minn. 1973). This rule is not absolute and the district
court has discretion regarding the scope of cross -examination, particularly when the
witness is not the defendant. Griese, 565 N.W.2d at 426. One circumstance in which this
is permitted is when the defendant “opens the door” to allowing in otherwise inadmissible
evidence of the underlying facts of a conviction. See State v. Valtierra, 718 N.W.2d 425,
435-36 (Minn. 2006). That is to say, Valtierra and Griese permit further factual inquiry
into a non -defendant witness’s underlying conviction, subject to the district court’s
discretion. See Valtierra, 718 N.W.2d at 435-37; Griese, 565 N.W.2d at 426.
During cross-examination of D.J., the prosecutor impeached D.J. with a conviction
for first-degree aggravated-robbery from 2006. The prosecutor asked D.J., “And you and
[appellant] committed that crime together?” The prosecutor did not otherwise refer to
D.J.’s 2006 conviction during cross-examination or re-cross-examination. During closing

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argument, the prosecutor stated that D.J. “is [appellant’s] cousin who is a felon and has
committed crimes with [appellant] in the past.” The prosecutor did not make any other
reference to D.J.’s felony conviction in closing argument.
In Griese, the prosecution impeached the defendant’s witness who testified
“regarding the effects of the drugs taken by Griese, as well as the effects of combining
drugs and alcohol on human behavior. ” Griese, 565 N.W.2d at 426 . To impeach that
witness, the prosecution questioned him on felony charges where the charges “dealt with
his role in drug research.” Id. In such instances, Williams is not an absolute bar to further
inquiry of the facts underlying a conviction , and the state’s questioning is instead subject
to the district court’s discretion. 2 See Valtierra, 718 N.W.2d at 435 -37; Griese, 565
N.W.2d at 426. Here, as in Griese, the prosecution questioned one of appellant’s witnesses
about an underlying conviction when the facts of that underlying conviction were relevant
to the witness’s testimony for impeachment purposes.
In sum, the prosecutor did not commit plain error by questioning the appellant’s
witness about the facts underlying his 2006 conviction.
II. The prosecutor did not ask “were they lying” questions and thus did not
err.

Appellant also argues that the prosecut or “committed misconduct by improperly
impeaching [appellant’s] testimony with ‘were they lying’ questions. ” Appellant further
contends that the prosecutor “impeached [appellant] with inadmissible evidence” and “was

2 Appellant does not contend that the district court abused its discretion in doing so and we
decline to address this issue.

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essentially asking [appellant] whether the schedule’s unknown creator was lying when he
created the schedule.” Appellant did not object at trial, either to the state’s questioning of
appellant during cross-examination or during closing argument.
The Minnesota Supreme Court has concluded that , “[a]s a general rule, ‘were they
lying’ questions have no probative value and are improper and argumentative because they
do nothing to assist the jury in assessing witness credibility in its fact-finding mission and
in determining the ultimate issue of guilt or innocence. ” State v. Pilot, 595 N.W.2d 511,
518 (Minn. 1999) . However, “an exception exists when a criminal defendant makes the
issue of witness credibility a central focus of his case.” State v. Jones, 755 N.W.2d 341,
353 (Minn. App. 2008), aff’d, 772 N.W.2d 496 (Minn. 2009) . This court has explained
that district courts “should allow ‘were they lying’ questions only when the defense
expressly or by unmistakable insinuation accuses a witness of a falsehood .” State v.
Leutschaft, 759 N.W.2d 414, 423 (Minn. App. 2009) (emphasis added). Furthermore, in
some cases, the state may question a witness whether evidence is wrong. See State v.
Morton, 701 N.W.2d 225, 233-34 (Minn. 2005).
As noted above, this court reviews unobjected-to prosecutorial misconduct under a
modified plain-error standard. Parker, 901 N.W.2d at 926.
At trial, appellant’s attorney attempted to introduce a police photograph of the
Smashburger work schedule, taken on October 23, 2016, into evidence. Contrary to
appellant’s assertions, the work schedule photograph was never deemed “inadmissible” but
was not admitted because, following the state’s objections, appellant failed to lay a proper

10
foundation. Neither the state nor appellant recalled the two officers who had taken photos
at Smashburger to lay a proper foundation for the photograph.
At trial, testimony was adduced from M.H and D.J. about when M.H. and appellant
worked together and what position M.H. worked. During appellant’s testimony, he
testified about his work schedule and how long he had worked at Smashburger. Appellant
also testified that he didn’t know M.H. and that he only “kn[e]w of the person [M.H.] now”
at trial, before stating that he had worked with M.H. “once or twice.” During the state’s
cross-examination of appellant, the state asked appellant about his work schedule at
Smashburger. The state then engaged in the following exchange:
Q. And in fact, you—between October 2 and October 22, you
actually worked at least eight shifts with [M.H.]. Right?
A. No.
Q. So if the work schedule says that, you disagree?
A. Yes.
Q. Oh. In fact, [M.H.] worked as a cook on some of the shifts.
A. Not at all.
Q. So if the work schedule says he worked as a cook on some
of the shifts, the work schedule’s wrong?
A. Yes.

In closing argument, the state characterized the line of questioning as:
Q. Well, if the schedule says that you worked in those three
weeks, if you worked eight shifts with [M.H.] , is the schedule
lying?
A. Yep.
Q. Well, and if it says that during those three weeks [M.H.]
worked as a cook, is the schedule lying?
A. Yep. Schedule’s wrong.

This case is analogous to Morton. In Morton, “the state asked Morton if the facts
were ‘wrong,’ but did not ask him to comment on whether anyone responsible for the

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telephone records intended to perpetuate a falsehood. In other words, the state left open
the possibility that the evidence could simply have been incorrect.” Morton, 701 N.W.2d
at 234. The supreme court did not “condone” and “carefully scrutinize[d] this line of
questioning,” but concluded that the district court did not abuse its discretion by permitting
the state to ask such questions in relation to evidence. Id. But the supreme court did
conclude in Morton that the state erred by asking “were they lying” questions of the
defendant in regards to witness testimony. Id. at 234-235. “By asking ‘were they lying’
questions on th[o]se occasions, the state shifted the jury’s focus by creating the impression
that the jury must conclude that these two witnesses were lying in order to acquit Morton.”
Id. at 235.
Here, like Morton, the prosecutor did not ask appellant whether the creator of the
workplace sch edule was lying, but asking a hypothetical question of whether a record
stating otherwise was wrong. M.H. testified that he knew who appellant was because he
had worked with him on multiple occasions and as a cook. Appellant and D.J. testified
that appellant and M.H. had only worked together one or two times and in different
positions. The state did not ask appellant whether he thought M.H. was lying, but whether
a record contradicting appellant’ s version could be incorrect. The state therefore did not
commit error.
Because there was no error, appellant’s argument regarding the cumulative impact
of such errors is without merit. In sum, we conclude that the prosecution did not commit
plain error and affirm appellant’s convictions.
Affirmed.