                          This opinion will be unpublished and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
                                     A16-0098

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                Jamie Charlotte Blahowski,
                                       Appellant.

                                  Filed October 31, 2016
                                         Affirmed
                                     Schellhas, Judge

                              McLeod County District Court
                                 File No. 43-CR-15-6

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

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bjorkman,

Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant seeks reversal of her conviction of fifth-degree controlled-substance

crime, arguing that the district court erred by allowing the state to impeach her with a prior

misdemeanor conviction. We affirm.

                                          FACTS

       Around 10:30 p.m. on January 1, 2015, Glencoe Police Officer Andrew Fiebelkorn

observed appellant Jamie Blahowski driving a vehicle. Officer Fiebelkorn stopped the

vehicle that Blahowski was driving because he knew that Blahowski’s driver’s license had

been revoked. Officer Fiebelkorn approached the front passenger side of the vehicle and

began speaking with Blahowski; almost immediately, he saw near the center console a

baggie containing a crystalline substance that he suspected was methamphetamine. Officer

Fiebelkorn radioed for backup, approached the front driver side of the vehicle, and

instructed Blahowski to exit the vehicle. Blahowski verbally defied Officer Fiebelkorn’s

repeated commands to exit the vehicle and physically resisted his attempts to remove her

from the vehicle. As he struggled with Blahowski, Officer Fiebelkorn saw her reach toward

the center console and then toss her right hand over her right shoulder.

       Glencoe Police Officer Benjamin Jarvi arrived on the scene and helped Officer

Fiebelkorn remove Blahowski from the vehicle, handcuff her, and detain her. The officers

then searched the vehicle for the baggie of suspected methamphetamine, weapons, and

other contraband. Upon Officer Fiebelkorn’s request, other officers arrived at the scene,

including a K-9 unit, and assisted. During the search, Officer Jarvi located the baggie of


                                              2
suspected methamphetamine on the floorboard of the rear passenger side of the vehicle.

Officer Fiebelkorn secured the baggie of suspected methamphetamine, and subsequent

chemical testing confirmed that the baggie contained 0.041 grams of methamphetamine.

       Respondent State of Minnesota charged Blahowski with fifth-degree controlled-

substance crime (methamphetamine possession), obstruction of legal process, and driving

after revocation. Blahowski pleaded not guilty and demanded a jury trial. On the morning

of trial, over Blahowski’s objection, the district court ruled that the state could impeach

Blahowski with a 2005 misdemeanor theft conviction. Blahowski nonetheless testified at

trial, acknowledged the theft conviction on cross-examination, and repeatedly denied

possessing methamphetamine at the time of the traffic stop. The jury found Blahowski

guilty as charged, and the court sentenced her to imprisonment for 12 months and 1 day

for her conviction of fifth-degree controlled-substance crime.1

       This appeal follows.

                                     DECISION

       “[Appellate courts] review a district court’s decision to admit evidence of a

defendant’s prior convictions for an abuse of discretion.” State v. Williams, 771 N.W.2d

514, 518 (Minn. 2009); see also State v. Hill, 801 N.W.2d 646, 651 (Minn. 2011) (stating

that “[appellate courts] will not reverse a district court’s ruling on the impeachment of a

witness by prior conviction absent a clear abuse of discretion” (quotation omitted)).




1
  Although the presumptive disposition was a stay of execution, Blahowski asked the
district court to execute her sentence.

                                             3
       Minnesota law provides:

                     For the purpose of attacking the credibility of a witness,
              evidence that the witness has been convicted of a crime shall
              be admitted only if the crime (1) was punishable by death or
              imprisonment in excess of one year under the law under which
              the witness was convicted, and the court determines that the
              probative value of admitting this evidence outweighs its
              prejudicial effect, or (2) involved dishonesty or false statement,
              regardless of the punishment.

Minn. R. Evid. 609(a). Accordingly, a defendant who testifies at her own trial may be

impeached by evidence that she previously was convicted of a misdemeanor if the

misdemeanor involved dishonesty or false statement. See id. (providing for impeachment

by evidence of conviction of a crime “involv[ing] dishonesty or false statement, regardless

of the punishment” (emphasis added)); State v. Zornes, 831 N.W.2d 609, 626−27 (Minn.

2013) (stating that rule 609(a) standard “appl[ies] . . . to defendants who wish to testify in

their own defense”).

       Evidence of a witness’s prior conviction of a crime involving dishonesty or false

statement is admissible for impeachment purposes so long as no more than ten years has

elapsed between the conviction and the date of the charged offense. See Minn. R. Evid.

609(b) (providing that “[e]vidence of a conviction . . . is not admissible if a period of more

than ten years has elapsed since the date of the conviction”); State v. Ihnot, 575 N.W.2d

581, 585 (Minn. 1998) (holding that “the date of the charged offense is the appropriate end

point for the 10-year period that determines whether a conviction is stale under Minn. R.

Evid. 609(b)”). Indeed, a district court must admit such evidence without regard to whether

its probative value outweighs its prejudicial effect. See State v. Bettin, 295 N.W.2d 542,



                                              4
545 (Minn. 1980) (“Crimes directly involving dishonesty or false statement are

automatically admissible without regard to the seriousness of the punishment and without

any balancing of probative value against prejudice being required.”); State v. Head, 561

N.W.2d 182, 185–87 (Minn. App. 1997) (stating that “Minn.R.Evid. 609(a)(2) overrides

the district court’s general discretion to exclude relevant evidence under Minn.R.Evid.

403” and concluding that “district court erred by excluding evidence about [state’s

witness]’s two prior convictions for providing false information to police”), review denied

(Minn. May 28, 1997).

       If “dishonesty is an element of the crime” of conviction, evidence of the conviction

“falls within the plain language of Minn.R.Evid. 609(a)(2)” and is admissible under the

rule without regard to the manner in which the crime was committed. Head, 561 N.W.2d

at 187. But even if dishonesty is not an element of the crime of conviction, evidence of the

conviction is admissible under rule 609(a)(2) if the crime was committed in a manner

involving dishonesty. Cf. State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992) (noting that

“[t]he difficulty in determining whether a particular crime falls under Minn.R.Evid.

609(a)(2) lies not in just the type of crime committed, but also in the manner in which the

crime is carried out,” characterizing as “very instructive” Judge Posner’s analysis of Fed.

R. Evid. 609(a)(2) in Altobello v. Borden Confectionary Prods., Inc., 872 F.2d 215 (7th

Cir. 1989), and recounting Altobello’s reasoning that “[i]n the case of [some] crimes, deceit

is not an element, but the manner in which the witness committed the offense may have

involved deceit, and if that is shown the conviction is admissible” (quotation omitted)).




                                             5
       Theft may be—but is not necessarily—a crime involving dishonesty or false

statement, “depending on what kind of act of thievery was involved.” State v. Sims, 526

N.W.2d 201, 202 (Minn. 1994). For example, misdemeanor theft by shoplifting generally

is not a crime involving dishonesty or false statement, State v. Darveaux, 318 N.W.2d 44,

48 (Minn. 1982), while theft by swindle categorically is a crime involving dishonesty or

false statement, see State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (concluding that

district court did not err in ruling that defendant’s prior conviction of theft by swindle was

admissible under Minn. R. Evid. 609(a)(2)); State v. Swinger, 800 N.W.2d 833, 836 (Minn.

App. 2011) (stating that misdemeanor theft by swindle, theft by fraud, and theft by false

representation were crimes involving dishonesty or false statement), review denied (Minn.

Sept. 28, 2011).

       In this case, the district court allowed Blahowski to be impeached on cross-

examination by reference to her 2005 misdemeanor theft conviction. The court reasoned

that evidence of the conviction was admissible as “a crime of moral turpitude because it’s

a crime of dishonesty.” Blahowski argues that the district court erred by admitting her

misdemeanor conviction without making the requisite determination, under Minn. R. Evid.

609(a)(2), that the crime of conviction involved dishonesty or false statement. We agree.

The record reflects no information regarding “what kind of act of thievery was involved”

in the crime of conviction, Sims, 526 N.W.2d at 202, or “the manner in which the crime

[wa]s carried out,” Ross, 491 N.W.2d at 659. Consequently, the court had no apparent basis

for its conclusion that Blahowski’s misdemeanor theft was a crime involving dishonesty or

false statement.


                                              6
       But Blahowski did not argue in district court that evidence of her 2005 misdemeanor

theft conviction was not admissible under Minn. R. Evid. 609(a)(2). Instead, she argued

against impeachment by incorrectly claiming that “all evidentiary rulings are subject to

Rule 403” and contending that, because her theft conviction was “within a few days of . . .

being ten years old,” the probative value of evidence of that conviction was outweighed by

its unfairly prejudicial impact. The state argues that our review of the district court’s

impeachment ruling therefore is limited to review for plain error. Because we conclude that

any error in the district court’s impeachment ruling did not affect Blahowski’s substantial

rights, we do not decide whether Blahowski’s objection in district court was sufficient to

preserve the assignment of error that she makes on appeal. See Minn. R. Crim. P. 31.01

(“Any error that does not affect substantial rights must be disregarded.”), .02 (“Plain error

affecting a substantial right can be considered by the court . . . on appeal even if it was not

brought to the trial court’s attention.”); State v. Reed, 737 N.W.2d 572, 583–84 (Minn.

2007) (explaining that under both harmless-error review and plain-error review, error is

not reversible unless it affected defendant’s substantial rights).

       “In most situations, an error affects substantial rights if the error was prejudicial and

affected the outcome of the case. Put another way, an error affects a defendant’s substantial

rights if there is a reasonable likelihood that the error had a significant effect on the

verdict.” State v. Finch, 865 N.W.2d 696, 703 (Minn. 2015) (quotations and citation

omitted); see also State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011) (stating that “[a]

plain error affects the substantial rights of the defendant when there is a reasonable




                                               7
likelihood that the error substantially affected the verdict” and explaining that this analysis

“is the equivalent of a harmless error analysis” (quotation omitted)).

       In determining whether a reasonable likelihood exists that erroneously admitted

evidence significantly affected the verdict, appellate courts may consider such factors as

the relative strength of properly admitted inculpatory and exculpatory evidence, the manner

in which the erroneously admitted evidence was presented to the jury, whether the

prosecutor referenced the erroneously admitted evidence in closing arguments, and

whether the district court gave a limiting instruction. See State v. Bolte, 530 N.W.2d 191,

198–99 (Minn. 1995) (concluding that no prejudice resulted from erroneous admission of

other-crime evidence after considering “a number of factors including the overwhelming

evidence linking the defendant to the [crime of conviction]; the fact that the defense’s

evidence was weak and of highly doubtful credibility; the fact that the prosecutor did not

rely on the evidence in question in his closing argument; the fact that the trial court gave

an appropriate cautionary instruction when requested, both during the trial and as part of

the final instructions; and the fact that other other-crime evidence was properly admitted”);

State v. Jackson, 764 N.W.2d 612, 620 (Minn. App. 2009) (“In evaluating the reasonable

likelihood that the erroneously admitted evidence significantly affected the verdict, this

court must consider the persuasiveness of that evidence. . . . Our analysis must also

consider the manner in which the evidence was presented.”), review denied (Minn. July 22,

2009). Appellate courts presume that a jury follows a district court’s limiting instruction.

State v. Thao, 875 N.W.2d 834, 839 (Minn. 2016).




                                              8
      Blahowski argues that the district court’s impeachment ruling “substantially

influenced the jury’s decision to convict [her]” of fifth-degree controlled-substance crime

because “[her] defense had no chance with the jury once her testimony was wrongly—and

unfairly—impeached with the highly prejudicial evidence of her prior conviction.”

Blahowski points to other evidence and argument presented at trial that purportedly

bolstered her testimony that she possessed no methamphetamine at the time of the traffic

stop, and she suggests that the jury would have believed her testimony if she had not been

impeached with evidence of her 2005 misdemeanor theft conviction.

      But Blahowski’s impeachment was limited to a single, brief exchange with the

prosecutor on cross-examination:

             Q: Ms. Blahowski, have you ever been convicted of theft?
             A: Yes.

This exchange was immediately followed by a limiting instruction by the district court,

which provided: “Any evidence concerning a prior conviction of the defendant is admitted

only for your consideration in deciding whether she’s telling the truth in this case. You

must not consider a prior conviction as evidence of the defendant’s character or conduct,

except as you may think it reflects on believability.” And the prosecutor did not mention

Blahowski’s theft conviction during his opening statement or his closing argument.

      The district court’s impeachment ruling did not prevent Blahowski from testifying,

and Blahowski’s testimony that she possessed no methamphetamine at the time of the

traffic stop was in direct conflict with the state’s evidence, including the testimony of

Officers Fiebelkorn and Jarvi and the squad-car recording of the traffic stop and its



                                            9
aftermath. Finally, during cross-examination, Blahowski acknowledged her guilt of the

crime of driving after revocation and admitted that she “may have” kicked a police officer

as she “physically resisted” Officer Fiebelkorn’s efforts to remove her from the vehicle.

On these facts, we conclude that no reasonable likelihood exists that the evidence of

Blahowski’s prior conviction significantly affected the jury’s verdict on the charge of fifth-

degree controlled-substance crime.

       Affirmed.




                                             10
