4 Wash.App. 908, 484 P.2d 1167
On the afternoon of September 14, 2006, Minneapolis police responded to a 911 call of a shooting in South Minneapolis and found Bennie Hodges lying wounded with blood on his pants near the buttocks area.1 Hodges told the responding officer that he had been shot by appellant, whose nickname is "Little Cuz."2 Hodges was taken to the hospital, where police spoke to his mother, who had been with him and described the shooter as an African-American male roughly 25 years old with short braids to his neck but could not make a positive identification from a photographic lineup.
The next day Hodges identified appellant in a photographic lineup as the shooter, and Hodges' mother independently identified appellant as the shooter in a separate photographic lineup.3 A next-door neighbor who saw the shooting described the shooter as an African-American male roughly 25-30 years old with braids, wearing a light-colored shirt and dark blue jeans, a description that matched appellant.4 Appellant was charged with first-degree assault, two counts of attempted first-degree aggravated robbery, second-degree assault, and felon in possession of a firearm; a second amended complaint added a charge of attempted first-degree murder.5
At trial the State presented testimony from Hodges, Hodges' mother, the next-door neighbor, and a friend of appellant who testified that she picked him up from a Subway restaurant that afternoon. The district court denied appellant's motion to suppress the photographic lineup identifications and granted the State's request to impeach appellant with two prior drug-related felonies if he testified. Appellant chose not to testify. The jury found appellant guilty of first-degree assault, second-degree assault, and felon in possession of a firearm, but the district court declared a mistrial on the attempted first-degree murder charge because the jury could not reach a unanimous verdict.
In March 2007 the district court first sentenced appellant to 60 months for the felon-in-possession conviction, which increased his criminal-history score from three to four and raised the presumptive sentence range for the first-degree assault conviction.6 The court then imposed the maximum presumptive sentence of 160 months for first-degree assault, to be served concurrently with the firearm sentence.7 The court of appeals affirmed, and the Minnesota Supreme Court granted review.
Whether the district court abused its discretion when it ruled that the State could impeach appellant with two prior drug-related felony convictions if he chose to testify?8
Minnesota Rule of Evidence 609(a)(1) permits evidence of a defendant's prior felony convictions for impeachment if the court determines that the probative value outweighs its prejudicial effect, evaluated under the five Jones factors of (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 defendant's testimony, and (5) the centrality of the credibility issue.9
No. The district court applied the Jones factors to the facts that appellant's prior drug-related convictions occurred less than two years before trial and demonstrated a pattern of lawlessness, were dissimilar to the charged assault offenses because they involved no violence, and that appellant presented his theory of the case through the testimony of V.R. without making any offer of proof regarding additional testimony he would have provided.101112
The district court therefore did not abuse its discretion in allowing the State to impeach appellant with the prior convictions.13
Whether the district court erred when it imposed a sentence for appellant's felon-in-possession-of-a-firearm conviction and then included that conviction when calculating his criminal-history score for his first-degree assault sentence?14
Minnesota Statutes section 609.035 subdivision 3 creates an exception to the single-behavioral-incident rule that permits multiple sentences for a felon-in-possession offense and any other offense arising from the same incident, and the sentencing guidelines prohibit application of the Hernandez method only for the specific exceptions listed in Minn. Sent. Guidelines II.B.1.c, leaving the method available for the felon-in-possession exception.1516
No. The district court sentenced the felon-in-possession conviction first because that offense occurred before the assault, imposed the 60-month sentence which raised appellant's criminal-history score from three to four and expanded the presumptive range for the assault, and then imposed the 160-month assault sentence, all of which is permitted because the guidelines do not extend their Hernandez prohibition to the felon-in-possession exception under section 609.035.171819
The district court therefore did not err when it calculated appellant's criminal-history score and imposed sentence.20