                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1083

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                              Christopher Ralph Magnuson,
                                       Appellant

                                    Filed May 31, 2016
                                         Affirmed
                                       Worke, Judge

                             Sherburne County District Court
                                 File No. 71-CR-13-685

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Timothy A. Sime, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and

Schellhas, Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges his theft-by-check and theft-by-swindle convictions, arguing

that the district court abused its discretion by allowing the state to impeach appellant with
prior convictions if he chose to testify because the probative value of the evidence was

outweighed by its capacity for unfair prejudice. We affirm.

                                          FACTS

      On March 18, 2013, appellant Christopher Ralph Magnuson executed a personal

check in the amount of $36,934.63 for the purchase of a truck at Elk River Ford.

Magnuson drove the vehicle off the lot. Magnuson’s check was not honored because the

account was closed. Elk River Ford attempted to resolve the issue with Magnuson.

Magnuson initially stated that he would call the bank and rectify the situation. When he

failed to do that, he stated that he would send a cashier’s check. When he did not send a

cashier’s check, Magnuson stated that his brother would deliver payment. That too did

not happen. On April 1, Elk River Ford repossessed the vehicle.

      Magnuson was charged with felony theft by swindle and felony theft by check.

The state moved to admit evidence of some of Magnuson’s prior convictions for

impeachment purposes, including: (1) a 2006 theft conviction, (2) a 2011 receiving-

stolen-property   conviction,   (3)   a   2012   fifth-degree   controlled-substance-crime

conviction, (4) a 2014 theft-by-false-representation conviction, (5) a 2014 receiving-

stolen-property conviction, and (6) a 2015 issuance-of-a-dishonored-check conviction.

The state also sought to offer different instances of behavior as Spreigl evidence to prove

intent, knowledge, absence of mistake or accident, or common scheme or plan.

       At Magnuson’s jury trial, after considering the admissibility of the proffered

Spreigl evidence, the district court instructed the jury on how to use the evidence it

determined to be admissible:


                                            2
                    The State is about to introduce evidence of
             occurrences on July 6th of 2013 at . . . Anoka County . . . July
             20th, 2013 at Anoka County, and August 13th, 2013 at
             Chisago County. This evidence is being offered for the
             limited purpose of assisting you in determining whether
             [Magnuson] committed those acts with which [Magnuson] is
             charged in the complaint. This evidence is not to be used as
             proof of the character of [Magnuson] or that [Magnuson]
             acted in conformity with such character. [Magnuson] is not
             being tried for and may not be convicted of any offenses other
             than the charged offenses. You are not to convict [Magnuson]
             on the basis of occurrences on July 6th, July 20th, or August
             13th of 2013 in Anoka County or Chisago [C]ount[y]. To do
             so might result in unjust double punishment.

      Following consideration of the admissibility of the six prior convictions for

impeachment purposes, the district court stated:

             [H]aving done the Jones analysis . . . for purposes of
             impeachment only . . . I am not going to allow admission of
             the fifth degree controlled substance crime because I think it
             has limited impeachment value but a strong likelihood of
             prejudice. I am going to allow impeachment through the theft
             by [false] representation . . . .
                     ....
             Additionally, I’m allowing [a] receiving stolen property
             [conviction] . . . because I believe that it also has strong
             impeachment value. It’s different enough to not likely
             confuse the jury, the time is obviously relevant, and I think it
             does speak to the issues at hand in [Magnuson’s] testimony.
             I’m also going to allow [the other receiving stolen property
             conviction]. I’m going to exclude the theft . . . both because
             of its age and because I don’t know that it speaks to
             impeachment. And I’m not going to allow the issuance of a
             dishonored check, because I think it has a lot of potential to
             confuse the jury with the facts in this case and I don’t know
             that it has impeachment value.




                                            3
The district court determined that evidence of three of the six prior convictions was

admissible for impeachment purposes—the theft-by-false-representation conviction and

the two receiving-stolen-property convictions.

       Magnuson waived his right to testify because he was subject to impeachment by

his prior convictions. The jury found Magnuson guilty of theft by swindle and theft by

check. Based on the jury’s findings that the state proved beyond a reasonable doubt that

Magnuson has five or more prior felony convictions and that the current offense was

committed as a part of a pattern of criminal conduct, the district court sentenced

Magnuson as a career offender to 120 months in prison. This appeal follows.

                                     DECISION

       Magnuson argues that the district court abused its discretion by permitting the

state to impeach him with the three prior felony convictions if he chose to testify. This

court reviews the district court’s ruling on impeachment by prior conviction for a clear

abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

       First, Magnuson argues that the district court abused its discretion by admitting

evidence of a theft-by-false-representation conviction.        The state may attack the

credibility of a testifying defendant by impeaching him with evidence of a prior

conviction of an offense that “involved dishonesty or false statement.” Minn. R. Evid.

609(a)(2).

       In his reply brief, Magnuson concedes that this conviction is admissible for

impeachment purposes because it involved dishonesty or false statement. We generally

accept a party’s concession when there is no fault in the district court’s analysis. State v.


                                             4
Werner, 725 N.W.2d 767, 770 n.1 (Minn. App. 2007). Because Magnuson concedes that

the district court could have appropriately admitted evidence of the theft-by-false-

representation conviction, his argument is focused on the prejudicial impact of the district

court’s decision to admit evidence of the two receiving-stolen-property convictions.

       The state may impeach a testifying defendant with evidence of a prior felony

conviction if (1) no more than ten years have elapsed since the date of conviction or since

the witness was released from confinement for that conviction and (2) the district court

determines that the probative value of admitting the evidence of conviction outweighs its

prejudicial effect. Minn. R. Evid. 609(a)(1), (b); State v. Zornes, 831 N.W.2d 609, 626-

27 (Minn. 2013).      To determine whether the probative value of Magnuson’s prior

convictions outweighed their prejudicial effect, the district court applied a five-factor test,

considering:

               (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 (the
               greater the similarity, the greater the reason for not permitting
               use of the prior crime to impeach), (4) the importance of
               defendant’s testimony, and (5) the centrality of the credibility
               issue.

See State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).

       Impeachment value of prior crime

       The district court found that the receiving-stolen-property convictions have

“strong impeachment value.”        “[A]ny felony conviction is probative of a witness’s

credibility, and the mere fact that a witness is a convicted felon holds impeachment

value.”   State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011).            The convictions have


                                              5
probative value because they enable the jury to see Magnuson as a “whole person” and

better judge his credibility. See id. at 651 (quotation omitted).

       Magnuson admits that his prior convictions were relevant to his credibility, but

asserts that the state presented the jury with Spreigl evidence relevant to his character for

truthfulness. However, the district court instructed the jury that the Spreigl evidence, was

“not to be used as proof of the character of [Magnuson] or that [Magnuson] acted in

conformity with such character.” (Emphasis added.) This factor weighs in favor of

admission.

       Date of conviction and defendant’s subsequent history

       The district court found that the time of the convictions “is obviously relevant.”

Magnuson’s convictions are not stale because they occurred in 2011 and 2014, fewer than

ten years before the current crime. See Minn. R. Evid. 609(b). Magnuson concedes that

this factor weighs in favor of admission.

       Similarity of past crime with charged crime

       The district court found that the receiving-stolen-property convictions were

“different enough to not likely confuse the jury.” Generally, the more similar the prior

conviction to the charged offense the greater the danger that the jury will use the

evidence for substantive, rather than impeachment, purposes. State v. Lloyd, 345 N.W.2d

240, 247 (Minn. 1984).

       Magnuson asserts that “[t]hough the crime of receiving stolen property does not

necessarily involve the same acts of dishonesty inherent in a theft offense, it is

nevertheless dependent upon and related to an unlawful taking of property that the


                                              6
defendant is later found to possess.” But in State v. Flemino, this court rejected a similar

argument that a prior burglary conviction was similar to a robbery charge because “both

involved entering a residence and committing a crime therein,” stating that the crimes

were “not similar in name or fact.” 721 N.W.2d 326, 329 (Minn. App. 2006).

       Here, when the district court considered the prior felonies offered by the state, it

excluded the issuance-of-a-dishonored-check conviction because “it ha[d] a lot of

potential to confuse the jury with the facts in this case.”       Thus, the district court

considered the similarity of all prior offenses to the current charges. And Magnuson cites

no authority to support the position that receiving stolen property and theft by swindle

and theft by check are similar offenses. This factor weighs in favor of admission, but

even if it weighed against admission, it does not preclude admission. See State v.

Hochstein, 623 N.W.2d 617, 624-25 (Minn. App. 2001) (stating that this factor weighed

against admission when prior crime was nearly identical to charged crime but affirming

admission based on other factors).

       Importance of defendant’s testimony and centrality of credibility issue

       The fourth and fifth Jones factors are often considered 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.

       Magnuson argues that his “testimony was essential to his defense” because it

would have shown his subjective intent in taking the truck—whether it satisfied the

permanent-deprivation element. He claims that if he had testified, the jury would have

been able to determine whether he was being truthful about his intent. If the jury were to


                                             7
consider the truthfulness of his testimony, his credibility would be centrally important in

this case, which weighs in favor of admission.

       In sum, the Jones factors weigh in favor of admission; therefore, the district court

did not abuse its discretion in ruling that evidence of Magnuson’s prior receiving-stolen-

property convictions was admissible for impeachment purposes.

       Magnuson asserts that he chose not to testify because of the district court’s ruling

on the admissibility of the impeachment evidence, which prevented him from presenting

a complete defense. But because the district court did not abuse its discretion in ruling

the evidence admissible, the district court did not violate Magnuson’s right to testify and

present a complete defense. See State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993)

(stating that “it is only when a [district] court has abused its discretion under Rule 609 . . .

that a defendant’s right to testify may be infringed by the threat of impeachment

evidence”).

       Affirmed.




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