State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0831

State of Minnesota,
Respondent,

vs.

Xavier Marshawn Foster,
Appellant.

Filed June 26, 2023
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-20-10948

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M., Judge; and
Hooten, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from final judgments of conviction for four counts of unlawful
possession of a firearm or ammunition, appellant Xavier Marshawn Foster argues that he
is entitled to a new trial because the district court abused its discretion by refusing to allow
him to impeach a prosecution witness with prior convictions. In the alternative, Foster
argues that the district court erred by imposing sentences for both possession of a firearm
and possession of ammunition because the offenses occurred as part of a single behavioral
incident. In an uncounseled supplemental brief, Foster also argues for a new trial based on
ineffective assistance of counsel. We affirm.
FACTS
On May 3, 2020, police officers arrived at an apartment building in response to a
911 call reporting that a man had fired a gun. Officers spoke to T.H. —a resident of the
apartment building—who identified Foster as the person who shot the gun. Foster also
lived in the building.
Officers located Foster and took him into custody. Officers also obtained a search
warrant and searched Foster’s apartment. They found a 9mm Luger bullet in a bowl in the
kitchen table and a box of 9mm Luger ammunition in a drawer under the oven. An officer
also found a 9mm Luger cartridge casing outside of the apartment building. No gun was
recovered.
Respondent State of Minnesota charged Foster with four counts of being a
prohibited person in possession of a firearm or ammunition pursuant to Minnesota Statutes
3
section 624.713, subdivision 1(2) (2018). A jury trial was held from February 23 to
March 2, 2022. At the trial, Foster stipulated that he was ineligible to possess a firearm and
ammunition on the date in question. The state presented testimony from T.H. and D.M. —
another eyewitness—that, during a dispute between them and Foster outside the apartment
building, Foster went inside the building, returned outside with a gun, and fired it into the
air.
The jury found Foster guilty of all counts. The district court convicted Foster of all
four counts and sentenced Foster to concurrent 60-month prison terms on two of the counts.
Foster appeals.
DECISION
Foster argues that that the district court (1) abused its discretion by refusing to allow
him to impeach T.H., who testified for the state, with two prior convictions and (2) erred
by imposing multiple sentences because the offenses arose out of the same behavioral
incident. In an uncounseled supplemental brief, Foster also contends that he was denied
effective assistance of counsel.1 We address each argument in turn.
I. The district court did not abuse its discretion by refusing to allow Foster to
impeach T.H. with prior convictions.

Foster argues that the district court abused its discretion by precluding the defense
from impeaching T.H. with two prior convictions involving false statements.

1 Foster also asserts in his supplemental brief that the district court abused its discretion by
preventing him from impeaching T.H. with prior convictions. Because that argument is the
same as the first issue in the principal brief, we address the arguments together.
4
Under Minnesota Rule of E vidence 609, prior convictions may be admitted to
impeach the credibility of a witness if (1) the crime was punishable as a felony and the
district court determines that the probative value of admitting the evidence outweighs its
prejudicial effect or (2) the crime involved dishonesty or a false statement, regardless of
punishment. Minn. R. Evid. 609(a). Convictions that are stale, though, are generally
inadmissible but may be admitted if the district court “determines, in the interests of justice,
that the probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.” Minn. R. Evid. 609(b). A conviction is stale
under the rule “if a period of more than ten years has elapsed since the date of the conviction
or of the release of the witness from the confinement imposed for that conviction,
whichever is the later date.” Id. Appellate courts will not reverse a district court’s ruling
under rule 609 absent a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584
(Minn. 1998).
Foster moved to impeach T.H. with a September 25, 2009 misdemeanor conviction
for falsely reporting a crime and an April 4, 2011 gross-misdemeanor conviction for aiding
and abetting insurance fraud. The district court denied the motion . It concluded that,
because both convictions took place more than ten years before T.H.’s testimony on
February 24, 2022, both convictions were stale. It further decided not to apply the
exception for admission of stale convictions because no unusual need existed to warrant
their admission. Foster argues that both determinations constituted an abuse of discretion.
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A. The district court did not abuse its discretion by determining that both
of T.H.’s convictions were stale.

Foster argues that the district court abused its discretion by determining that both of
T.H.’s convictions were more than ten years old and thus presumptively inadmissible under
rule 609(b). He contends that the district court erred by measuring the ten-year period with
an endpoint of the date of T.H.’s testimony (February 24, 2022) rather than the date of
Foster’s offense (May 3, 2020). If the endpoint were the date of Foster’s offense, T.H.’s
2011 conviction for aiding and abetting insurance fraud would not have been stale and
would have been admissible under rule 609(a)(2).
Caselaw identifies two endpoints for measuring the ten-year time period under rule
609(b)—one for defendants when they testify as witnesses and one for nondefendant
witnesses. In Ihnot, the supreme court held that the date of the defendant’s charged offense
is the appropriate endpoint to determine whether a prior conviction is stale. 575 N.W.2d at
585. In State v. Munger, this court declined to extend the rule in Ihnot to nondefendant
witnesses; instead, we held that the date of the nondefendant witness’s testimony or of the
trial is the appropriate endpoint. 597 N.W.2d 570, 572 (Minn. App. 1999), rev. denied
(Minn. Aug. 25, 1999). Foster argues that Munger is inconsistent with Ihnot and that we
should overrule Munger and apply the rule from Ihnot to a nondefendant witness. We reject
the argument.
First, Munger is a precedential opinion and we are bound by our precedential
opinions. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), rev. denied (Minn.
6
Sept. 21, 2010) (explaining that this court is bound by the precedent established in the
supreme court’s opinions and its own precedential opinions).
Second, we have no reason to overrule our decision in Munger. See State ex rel.
Pollard v. Roy, 878 N.W.2d 341, 348 (Minn. App. 2016), rev. denied (Minn. Dec. 27,
2016) (stating that we may “overrule our own precedent if provided with a compelling
reason to do so”). Contrary to Foster’s argument, Munger is not inconsistent with Ihnot. In
Ihnot, the supreme court explained that, “if prior convictions lose their probative value for
impeachment purposes because of ten years of ‘good behavior,’ that is the period [the
court] should measure —the period of unquestioned good behavior.” 575 N.W.2d at 585.
The supreme court concluded that a defendant’s period of unquestioned good behavior
ends on the date of the defendant’s alleged offense. Id. In Munger, we discussed Ihnot’s
reasoning and observed that a nondefendant witness’s period of unquestioned good
behavior has no connection to the defendant’s conduct. Munger, 597 N.W.2d at 572-73 .
We therefore concluded that the endpoint of the ten-year period for a nondefendant witness
should not be the date of the defendant’s alleged offense but rather should be the date of
the nondefendant witness’s testimony or of the trial. Id.
Moreover, Foster’s asserted fairness reason for overruling Munger is unpersuasive.
He contends that Munger creates an asymmetrical rule that works to the government’s
advantage and the defendant’s disadvantage because it allows the government to impeach
a testifying defendant with older crimes than those permitted to be used by the defense to
impeach the state’s witnesses. But it is the status of the witness—as either the defendant or
not the defendant— that dictates which endpoint applies, not the identity of the party calling
7
the witness. The rule in Munger applies to all nondefendant witnesses, whether they are
testifying for the prosecution or the defense.2
Foster has not provided a “compelling reason” to overrule our precedent, and the
district court properly concluded that both convictions were stale and presumptively
inadmissible.
B. The district court did not abuse its discretion by excluding the stale
convictions.

In the alternative, Foster argues that the district court abused its discretion by not
applying the exception to the ten-year time limit to allow him to impeach T.H . with the
stale convictions.
Stale convictions may be admitted to impeach a witness’s testimony if the district
court determines, “in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs its prejudicial
effect.” Minn. R. Evid. 609(b). Though the parties do not entirely agree on how to apply
this rule to the convictions in this case, both agree that the exception for stale convictions

2 Foster also asserts that Munger unconstitutionally prevented him from presenting a
complete defense because the admissibility of T.H.’s prior conviction depended on which
party offered the evidence. As Foster acknowledges, he did not assert a constitutional
argument in the district court, and this court generally does not entertain new arguments
on appeal. See Steward v. State, 950 N.W.2d 750, 756 (Minn. 2020). In any event, the
argument lacks merit. As discussed above, it was the status of the testifying witness as a
defendant or nondefendant that determined the end point of the ten-year period, not which
party offered the evidence. And, contrary to Foster’s assertion, it is not arbitrary to measure
the period of good behavior differently for defendants and nondefendants.

8
demands a showing of “unusual need.” 3 See Jones, 271 N.W.2d at 537 (explaining that
admitting stale convictions under rule 609(b) demands a “specific showing of unusual
need”).
The district court determined that an unusual need for the prior convictions did not
exist. It stated that there was nothing in the case suggesting the passage of time had not
diminished the impeachment value of T.H.’s convictions. It also stated that T.H. had “no
pattern of lawlessness” and that the impeachment evidence was not especially necessary to
judge witness credibility because T.H. was not the sole eyewitness to testify about Foster’s
firearm possession. The district court therefore refused to admit the stale convictions.
Foster argues that the district court abused its discretion because T.H.’s credibility
was a central issue in the case and because impeachment of T.H. would also have
undermined the credibility of D.M.—the other eyewitness to Foster shooting the gun—
because T.H. and D.M. were close friends . We are not persuaded. The district court

3 Foster uses a two-step approach in analyzing the issue : first, he applies the five factors
commonly called the Jones factors that are used for evaluating the admissibility of felony
convictions under rule 609(a)(1), see State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006)
(citing State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)), and then he evaluates “unusual
need” under rule 609(b). The state suggests that it is not necessary to apply the Jones factors
when the convictions are stale and that the analysis is limited to whether unusual need is
shown under rule 609(b). We note that, even if T.H.’s convictions were not stale,
application of the Jones factors would be misplaced since the convictions were nonfelony
convictions involving dishonesty or false statement, see Minn. R. Evid. 609(a)(2), and they
were offered to impeach a prosecution witness, not a testifying defendant, see State v. Lanz-
Terry, 535 N.W.2d 635, 639 (Minn. 1995) (evaluating the admissibility of prior felony
convictions to impeach a prosecution witness by considering concerns such as protecting
witnesses from harassment, not confusing the jury, and not unreasonably prolonging trials).
Because Foster and the state agree that he must establish unusual need to admit a stale
conviction here, and we agree with the district court that Foster failed to establish unusual
need, we do not reach the parties’ dispute about Jones.
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reasonably concluded that T.H.’s credibility was not especially important. D.M. testified
that Foster fired a gun, and the ammunition found in Foster’s apartment matched the casing
found outside. Furthermore, no witnesses contradicted T.H.’s story and thus the jury was
not required to determine whether to believe T.H. or another witness. In addition, the
assertion that an unusual need existed because T.H.’s stale convictions would also
undermine T.H.’s friend’s credibility is unconvincing.
Foster also argues that the probative value of T.H.’s stale convictions substantially
outweighs their prejudicial effect because he had no option to “blunt the impact of [T.H.’s]
testimony.” But Foster had the opportunity to blunt the impact of T.H.’s testimony by
testifying himself, and he chose not to do so . Even if Foster did not testify because he
feared the impact of the possible admission of his own prior convictions under rule 609, it
does not mean that he lacked the opportunity to testify. See State v. Gassler, 505 N.W.2d
62, 67-68 (Minn. 1993). In addition, Fos ter had the opportunity to cross-examine each
witness.
In sum, we discern no abuse of discretion in the district court’s determination that
there was no specific showing of unusual need justifying admission of T.H.’s stale
convictions under rule 609(b).
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II. The district court did not err when sentencing Foster.

Foster also challenges his sentences, arguing that the district court erred by imposing
more than one sentence for two of the counts of which he was convicted because the
offenses arose out of the same behavioral incident.4
The district court imposed sentences for count I, unlawful possession of firearm,
which was based on the gun that was discharged, and count IV, unlawful possession of
ammunition, which was based on the 16 rounds of 9mm Luger ammunition found in the
oven drawer of Foster’s apartment.5
Minnesota law prohibits district courts from imposing multiple sentences for
offenses committed as part of a single behavioral incident. State v. Barthman, 938 N.W.2d
257, 265 (Minn. 2020) ; see Minn. Stat. § 609.035, subd. 1 (2018). To determine whether
the facts establish a “single behavioral incident,” courts consider whether the facts show a
unity in time, place, and purpose between the offenses. Barthman, 938 N.W.2d at 265. In
evaluating a determination to impose multiple sentences, appellate courts “review the
district court’s finding of fact under a clearly erroneous standard, and its application of the
law to those facts de novo.” Id.
Foster asserts, with little analysis, that his possession of the gun outside his
apartment and his possession of the bullets inside his apartment were part of the same

4 The district court entered convictions for all four counts but only sentenced on two. On
appeal, Foster does not challenge the multiple convictions.

5 The district court did not impose a sentence for count II, unlawful possession of
ammunition, based on the bullet shot from the firearm, or count III, unlawful possession of
ammunition, based on the bullet found on the table in Foster’s apartment.
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behavioral incident. The state counters that the two offenses were part of separate
behavioral incidents because (1) they occurred at different times and different places and
(2) they were not motivated by a single criminal objective. We agree with the state.
First, Foster’s possession of the gun and the ammunition in the oven-drawer were
temporally and spatially separate. Fos ter possessed the gun when he fired it outside. He
possessed the box of ammunition in the oven drawer when the officers located it in his
apartment later that day. There is no evidence that Foster physically possessed the box of
ammunition when he shot the firearm.
Second, the incidents were motivated by separate criminal purposes. Because the
ammunition found in the oven drawer matched the ammunition fired from the gun, Foster
presumably possessed the ammunition for use in that firearm. But such “[b]road statements
of criminal purpose do not unify separate acts into a single course of conduct.” State v.
Jones, 848 N.W.2d 528, 533 (Minn. 2014). Instead, the question is “whether all of the acts
performed were necessary to or incidental to the commission of a single crime and
motivated by an intent to commit that crime.” Barthman, 938 N.W.2d at 267. Foster’s
possession of the ammunition inside the apartment was not necessary to Foster’s acts
outside. As the state points out, Foster possessed the firearm outside the building to fire it
in the air and intimidate T.H. and D.M. Though the possession of the oven-drawer
ammunition may have been related to a broader criminal purpose, it was not necessary to
fulfill Foster’s specific criminal objective outside the apartment building.
12
In sum, because the factors of time, place, and purpose support the district court’s
implicit determination that Foster’s conduct constituted two separate behavioral incidents,
the district court did not err by imposing two sentences. See id.6
III. Foster was not denied effective assistance of counsel.

In his supplemental brief, Foster asserts that he was denied effective assistance of
counsel because his lawyer did not try to locate the 911 caller and did not object to the
admission of the 911 call at trial.
Appellate courts examine an ineffective-assistance-of-counsel claim under the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Davis, 982
N.W.2d 716, 728 (Minn. 2022). To prevail under Strickland, the defendant must prove
(1) that counsel’s representation fell below an objective standard of reasonableness and
(2) that there was a reasonable probability that, but for counsel ’s errors, the result of the
proceeding would have been different. Id. Because a claim of ineffective assistance of
counsel involves mixed questions of law and fact, appellate courts review the claim de
novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
Foster’s claim fails both Strickland prongs. As to the first prong, Foster’s counsel’s
decisions not to locate the 911 caller and not to object to the 911 call were both matters of

6 In his appellate brief, Foster focuses primarily on the argument that the firearm exception
to the single-behavioral-incident rule in section 609.035 does not apply in this case. The
firearm exception permits a district court to impose a sentence for unlawfully possessing a
firearm or ammunition even though the offense arose out of the same behavioral incident
as another offense. Minn. Stat. § 609.035, subd. 3 (2018). We need not reach Foster’s
firearm-exception argument because, as explained above, the offenses constituted separate
behavioral incidents.
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trial strategy. See id. at 421 (concluding that counsel’s decision not to investigate
alternative suspects was a matter of trial strategy); Leake v. State, 737 N.W.2d 531, 542
(Minn. 2007) (“Decisions about objections at trial are matters of trial strategy.”). Appellate
courts generally do not review for competence the decisions of counsel that are based on
trial strategy. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009). And Foster offers no
explanation for why the strategic decisions here were unreasonable. As to the second prong,
Foster fails to identify any prejudice resulting from the failure to locate the 911 caller or
from the admission of the 911 call at trial.
Affirmed.