State of Minnesota, Respondent, vs. Hector Otoniel Flores, Appellant. A04-2359, Court of Appeals Unpublished, April 18, 2006. (2024)

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2359

State of Minnesota,

Respondent,

vs.

Hector OtonielFlores,

Appellant.

Filed April 18, 2006

Affirmed

Collins, Judge*

Clay County DistrictCourt

File No. K2-03-1988

Mike Hatch, Attorney General, John B. Galus, AssistantAttorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN55101-2134; and

Lisa Borgen, Clay County Attorney, Courthouse,

Bradford Colbert, Legal Assistance to Minnesota Prisoners,875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

Consideredand decided by Willis, Presiding Judge; Stoneburner, Judge; and Collins, Judge.

U N P U B L I S H E D O P I N I O N

COLLINS, Judge

Inthis direct appeal from convictions of attempted second-degree murder, felon inpossession of a firearm, and terroristic threats, appellant Hector OtonielFlores argues that (1) the prosecutor committed prejudicial misconduct; (2) thedistrict court abused its discretion in admitting evidence of a prior robberyconviction to impeach his testimony; and (3) the evidence is insufficient onthe element of intent to kill to sustain the conviction of attemptedsecond-degree murder. We affirm.

FACTS

Whileat a house party after midnight on October 25, 2003, Floresdrew a gun from his front pants pocket and pointed it toward Miguel Torres(Miguel). A shot was fired, hitting Miguelin the hand. About eight to ten peoplewere at the party that began on the evening of October 24. They were drinking alcohol in various forms,some smoked marijuana, and some may have used methamphetamine. Witnessaccounts of the incident are conflicting.

Accordingto Miguel, before the shooting, Flores wasbragging about money, drugs, and his past.Miguel thought that Flores appearedparanoid and under the influence of drugs.When Miguel suggested that Flores go home and take care of his family, Flores became upset.Miguel testified that he thought Floreswas angered because he had been insulted and felt disrespected in front of thewomen present. Miguel told Flores to stay away from him. When Miguel turned aroundafter getting a beer from the refrigerator, Floreswas holding a gun pointed at Miguel’s chest.Miguel reacted by reaching out in a vain attempt to knock the gunaside. The gun went off and Miguel wasshot in the hand. Miguel then ran out ofthe house.

Miguel’sbrother, Jesus Torres (Jesus), was present and offered a similar description ofthe incident. He added that Flores twice pointed the gun at Jesus, first immediatelyafter shooting Miguel, telling Jesus to “get the f - - k out of there” and againafter both Flores and he had left the house.

Otherwitnesses offered various versions of the events, most of which contradictedMiguel’s and Jesus’ testimony. Several statedthat Miguel was aggressive and either hit or tried to hit Floresbefore the shot was fired. But others testifiedthat after the shooting, Flores pointed orwaved the gun in a circle while telling everyone to “back off!”

Theessence of Flores’ account of the incident was that Miguel had been boisterousand pointing his finger in Flores’ face; that Miguel hit him; that Flores respondedby drawing the gun from his pocket; and that the gun just went off byaccident. He testified that he did notremember waving the gun around thereafter.

Afterthe shooting, Flores fled the house, ranthrough the backyard, stumbled into a creek, and wound up sleeping beneath abridge. When he awoke, Floreswent to his wife’s house to change his bloody and wet clothes. Knowing that as a prior convicted felon hewas prohibited from having a firearm, Floresthrew away the gun, but he kept and hid the ammunition clip.

Thenext day Flores saw the party’s host and, afterapologizing for disrespecting her house, said that he knew he should go to thepolice. Within the next day or two Flores called his mother to ask if the police had beenlooking for him.

Followinga jury trial and return of verdicts, the district court entered judgments ofconviction and sentenced Flores to serveconcurrent prison terms of 27 months for terroristic threats, 60 months for felonin possession of a firearm, and 183 months for attempted murder in the seconddegree. This appeal followed.

D E C I S I O N

I.

Flores argues that the prosecutor committed misconduct byimproperly interjecting race into the judicial proceedings and improperlyeliciting testimony regarding the supply and use of methamphetamine. We disagree.

Thiscourt will reverse based on prosecutorial misconduct only if the misconduct,when considered in light of the whole trial, is so serious and prejudicial thatit impaired the defendant’s right to a fair trial. Statev. Powers, 654 N.W.2d 667, 678 (Minn.2003); State v. Smith, 541 N.W.2d584, 588 (Minn.1996). There are two distinct standardsfor determining whether prosecutorial misconduct is harmless error. Powers,654 N.W.2d at 678. “If the misconductwas serious, the misconduct is harmless beyond a reasonable doubt if theverdict rendered was surely unattributable to the error.” Id.(quotations omitted). In contrast, ifthe misconduct is less serious, “the standard is whether the misconduct likelyplayed a substantial part in influencing the jury to convict.” Id.(quotations omitted).

1. Race

Floresfirst argues that he is entitled to a new trial because the prosecutorimproperly interjected race into the judicial proceedings by implying that Flores was more likely to commit the crime because he isHispanic. “[T]he issue of racial orethnic bias in the courts . . . is an issue that must be confronted wheneverimproperly raised in judicial proceedings.”State v. Cabrera, 700 N.W.2d469, 475 (Minn.2005) (quotations omitted). Race isimproperly raised when it is not relevant to the case. See id.at 474.

Here,the prosecutor questioned Miguel during the trial about the argument he hadwith Flores.Miguel testified that he told Flores to leave the party and go home tohis family, after Flores had been braggingabout his past. Miguel stated that hebelieved that Flores became agitated enough toshoot him because Miguel made his remarks in front of the women at theparty. The prosecutor then engagedMiguel in the following exchange:

Q. Right. Would it be fair to say, Mr. Torres, you’refrom Hispanic origin, correct?

A. Yes.

Q. Andas is [Flores], correct?

A. Right.

Q. Andwould it be fair to say that disrespecting another male in the presence offemales that he perhaps has a relationship or whatever, is not reallyacceptable?

A. No,it’s not.

[DEFENSECOUNSEL]: I’m going to object tothat. Not only is it irrelevant, YourHonor, but it’s assuming facts that aren’t in evidence. There’s no evidence to indicate that anybodywas there with any girls.

THE COURT: Overruled. He may answer.

Q. Wouldyou say that that would be something that’s more objectionable in your culture?

A. Yes,it is.

Flores argues that the questions regarding Hispanicculture improperly introduced racial bias into the case. But the prosecutor neither suggested that Floreswas more likely commit a crime because he is Hispanic, nor implied that Flores was more aggressive or hot-tempered because he isHispanic. Instead, the legitimaterace-neutral purpose was to establishthe reason why, under the circ*mstances, Miguel’s comments would have insultedand upset Flores enough to intend to kill. Thus, we conclude that the prosecutor did notcommit misconduct by improperly interjecting race into the judicialproceedings.

2. Methamphetamine

Second, Flores argues that he is entitled to a new trial becausethe prosecutor improperly elicited testimony regarding the use and supply ofmethamphetamine. But the methamphetamineevidence was relevant to the issues of Flores’state of mind and conduct. Severalwitnesses testified about their experiences with methamphetamine to explain theeffects of the drug. And Migueltestified that before Flores shot him, Flores appearedparanoid and exhibited behaviors associated with being under the influence ofdrugs. We conclude that this evidence wasrelevant to the state’s theory as to why Floresbecame agitated enough to intentionally shoot Miguel.

Theprosecutor did imprudently ask two witnesses whether Floreshad ever supplied them with methamphetamine or other drugs. But the district court properly sustained thetimely objection in one instance, and the other witness was quick to answer inthe negative. Thus, while the questionswere improper, we conclude that there was no prejudicial effect, and Flores’ right to a fair trial was not impaired.

II.

Flores contends that the district court abused itsdiscretion by admitting evidence of his 1999 conviction of simple robbery forimpeachment of his testimony. Wedisagree.

Thiscourt reviews a district court’s ruling on the impeachment of a witness byprior conviction under a clear-abuse-of-discretion standard. Statev. Ihnot, 575 N.W.2d 581, 584 (Minn.1998); State v. Graham, 371 N.W.2d204, 208-09 (Minn.1985). District courts may admitevidence of a prior crime to impeach the defendant’s testimony if theunderlying conviction is less than ten years old, punishable by imprisonmentfor more than one year, and the probative value of the evidence outweighs itsprejudicial effect. Minn. R. Evid. 609(a)(1), (b). To determine whether the probative value ofthe evidence outweighs its prejudicial effect, the court must consider thefollowing factors that the Minnesota Supreme Court enumerated in State v. Jones, 271 N.W.2d 534, 538(Minn. 1978): “(1) the impeachment valueof the prior crime, (2) the date of the conviction and the defendant’ssubsequent history, (3) the similarity of the past crime with the charged crime. . . , (4) the importance of the defendant’s testimony, and (5) the centralityof the credibility issue.”

Here, the districtcourt’s failure to explicitly discuss the Jonesfactors on the record impedes our review of the district court’s ruling. We stress that the Jones-factor analysis is important for meaningful appellate review,but we will affirm when the district court could have admitted the convictionafter proper application of the factors.State v. Vanhouse, 634 N.W.2d715, 719 (Minn. App. 2001), review denied(Minn. Dec.11, 2001).

1. Impeachment value of prior crime

First, we mustconsider the impeachment value of the prior crime. Jones,271 N.W.2d at 538. The Minnesota SupremeCourt has stated that “impeachment by prior crime aids the jury by allowing itto see the whole person and thus to judge better the truth of histestimony.” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted). Although theft crimes do not directly involvedishonesty, Minnesotacourts have recognized that prior convictions of theft crimes have impeachmentvalue. See, e.g., State v. Ross,491 N.W.2d 658, 659-60 (Minn. 1992) (concluding that burglary conviction wasadmissible under rule 609(a)(1)); Statev. Yates, 392 N.W.2d 30, 32 (Minn. App.1986), review denied (Minn. Sept. 22,1986); see also Gassler, 505 N.W.2dat 67 (“[T]he fact that a prior conviction did not directly involve truth orfalsity does not mean it has no impeachment value.”). Because Flores’ 1999 robbery conviction contributedto the jury’s view of the whole person in assessing the truthfulness of Flores’ testimony, we determine that the conviction hadimpeachment value.

2. Dateof conviction and subsequent history

Second, we considerthe date of the conviction and the defendant’s subsequent history. Jones,271 N.W.2d at 538. Here, Flores was convicted of robbery in 1999, less than fiveyears before the October 25, 2003 incident and less than six years before trial. Under Minn.R. Evid. 609(b), evidence of a conviction is not admissible if more than tenyears have elapsed since the date of conviction. Thus, convictions that have occurred withinthe ten-year period are presumptively not stale. Gassler,505 N.W.2d at 67.

Flores concedes that any impeachment value of his priorconviction had not lost its relevance.

3.Similarityof past and charged crimes

Next, we must consider the similarity ofthe past and charged crimes. Jones, 271 N.W.2d at 538. “[I]f the prior conviction is similar to thecharged crime, there is a heightened danger that the jury will use the evidencenot only for impeachment purposes, but also substantively.” Grassler,505 N.W.2d at 67. But Minnesota courts have been liberal inadmitting prior convictions for impeachment purposes even when the crime issimilar to or the same as the charged crime.State v. Stanifer, 382 N.W.2d213, 218 (Minn.App. 1986).

Flores argues that his prior conviction of robbery issimilar to charges for which he was being tried in that they are crimes ofviolence against persons, defining robbery essentially as theft accomplished bymeans of an assaultive act. But theMinnesota Supreme Court has upheld the admission of past convictions far moresimilar in their elements to the charged crime than the similarity presentedhere. See, e.g., State v. Frank,364 N.W.2d 398, 399 (Minn.1985) (affirming district court’s admission of prior rape convictions in sexualassault trial). We conclude that the arguedsimilarity of the past and charged crimes in this case does not weighsignificantly in favor of excluding the prior conviction.

4. Importanceof appellant’s testimony

Fourth, we turn toconsideration of the importance of Flores’ testimony. Jones,271 N.W.2d at 538. If the admission of adefendant’s prior conviction would cause him to refrain from testifying, theimportance of having the jury hear the defendant’s version of the case mightweigh in favor of excluding the prior conviction. Statev. Bettin, 295 N.W.2d 542, 546 (Minn.1980). But here, the impendingintroduction of the prior conviction, tempered by the proper limiting juryinstruction to be given by the district court, did not discourage Flores from testifying.Thus, we conclude that this factor does not weigh in favor of excludingthe past conviction.

5. Centralityof credibility issue

Finally,we must consider whether Flores’ credibilityis a main issue in the case. Jones, 271 N.W.2d at 538. The need for the evidence of the pastconviction is greater when the jury must choose between the credibility of thedefendant and that of another person. Ihnot, 575 N.W.2d at 587.

Acentral issue is whether Flores intended toshoot Miguel. Flores and another witnesstestified that the shooting was an accident.But the prosecutor presented circ*mstantial evidence of Flores’ intent. Thatevidence depicts a scene of Flores pointinghis loaded and ready-to-fire gun at Miguel’s chest within close range,shooting, and then waving the gun in the circle of others in a menacing mannerbefore fleeing. Because that evidence and reasonable inferences conflict with Flores’testimony on the intent element, we determine that Flores’credibility was crucial to the case and weighs in favor of admitting the priorconviction. See id.

Basedon consideration of the five Jonesfactors, we hold that the district court did not err in concluding that theprobative value of the robbery conviction outweighed its prejudicial effect anddid not abuse its discretion by admitting the prior conviction for impeachmentpurposes.

III.

Flores further contends that the evidence is insufficientto sustain his conviction of attempted second-degree intentional murder becausethe state did not prove beyond a reasonable doubt that he acted with the intentto kill Miguel. We disagree.

Inconsidering a claim of insufficient evidence, this court’s review is limited toa painstaking analysis of the record to determine whether the evidence, whenviewed in the light most favorable to the conviction, is sufficient to allowthe jury to reach the verdict that it did.State v. Webb, 440 N.W.2d 426,430 (Minn.1989). We must assume the jury believedthe state’s witnesses and disbelieved any evidence to the contrary. Statev. Moore, 438 N.W.2d 101, 108 (Minn. 1989). And we will not disturb the verdict if thejury, acting with due regard for the presumption of innocence and therequirement of proof beyond a reasonable doubt, could reasonably conclude thatthe defendant was guilty of the charged offense. Bernhardtv. State, 684 N.W.2d 465, 476-77 (Minn.2004).

Aperson is guilty of second-degree intentional murder if he “causes the death ofa human being with intent to effect the death of that person or another, butwithout premeditation.” Minn. Stat. §609.19, subd. 1(1) (2002). Intent existswhen the defendant “either has a purpose to do the thing or cause the resultspecified or believes that the act, if successful, will cause thatresult.” Minn. Stat. § 609.02, subd. 9(4)(2002). Intent may be proven bycirc*mstantial evidence, including inferences drawn from the defendant’sconduct, the character of the assault, and the events occurring before andafter the crime. Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).

Here,assuming that the jurors believed the state’s witnesses and disbelievedcontrary evidence, Flores’ actions before and after he shot Miguel provided ampleevidence for a reasonable jury to find that Floresintended to kill Miguel. See Moore,438 N.W.2d 108. According to Miguel’stestimony, Flores and he were having a conversation that escalated to argument. Flores appeared paranoid, so Miguel told Flores to stay away from him. When Miguel turned back after momentarilyturning away, Flores had a gun in his handpointed at Miguel’s chest. Miguel maynot have been close enough to reach the gun, but he reacted by sweeping his armout in an attempt to block or knock the gun aside when he was shot. The bullet struck bone in Miguel’s hand andmay have thus been deflected from entering his chest. Believing that Miguel was not close enough totouch Flores or the gun, a reasonable jury could conclude that Flores did notshoot Miguel in defense of himself; rather than believe that Flores would carrya loaded gun in his front pants pocket co*cked and ready to fire, a jury couldreasonably conclude that Flores disengaged the safety and co*cked the weaponafter pulling it from his pocket.

Jesus,albeit Miguel’s brother, corroborated the events from which those inferencescould reasonably be drawn. In addition, Jesusoffered testimony about Flores’ behavior immediately after the shooting andwhile fleeing the scene, suggesting Flores’ guiltystate of mind.

Because the jurywas able to assess the credibility of the witnesses, free to accept the state’sversion of the events, and permitted to reject Flores’ alternative theories of self-defenseor accident, we conclude that it was reasonable for the jury to infer from Flores’conduct and the surrounding circ*mstances that he acted with the intent to killMiguel.

Affirmed.