                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2255

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                    Jesse Keith Fultz,
                                        Appellant.

                                 Filed December 1, 2014
                                        Affirmed
                                       Kirk, Judge

                              Kanabec County District Court
                                 File No. 33-CR-13-146


Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Barbara McFadden, Kanabec County Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,

Judge.
                          UNPUBLISHED OPINION

KIRK, Judge

          On appeal from his convictions of theft of a motor vehicle and possession of a

controlled substance, appellant contends that the district court abused its discretion by

allowing a testimonial hearsay statement into evidence and admitting his prior

convictions for impeachment purposes. We affirm.

                                         FACTS

          At approximately 9:23 a.m. on May 16, 2013, J.S. called 911 to report that her

boyfriend, appellant Jesse Keith Fultz, had stolen her vehicle, a grey Nissan Xterra.

Kanabec County Deputy Sheriff Alex Gerhardson responded to J.S.’s call and met J.S. at

her residence. Around 2:00 a.m. that morning, J.S. awoke and realized that her vehicle

was missing. J.S. called appellant, who had been at her home the previous evening, and

demanded that he immediately return her vehicle. Appellant told her that he would return

the vehicle in 25 minutes but failed to do so. While J.S. waited for appellant, she

searched one of appellant’s two bags that he had left at her house and discovered her CDs

and her son’s missing video games, which appellant had previously claimed had been

stolen.     Deputy Gerhardson searched the bags and discovered drug paraphernalia,

including a cell phone, a digital scale, a broken glass bulb, a silver container, and straws

and containers, tucked among appellant’s clothing.

          Later that same morning, Kanabec County Sergeant Kevin Braiedy responded to a

homeowner’s call about two suspicious-looking men who had recently walked across her

neighbor’s yard and into the adjacent woods. When Sergeant Braiedy arrived at the


                                             2
neighbor’s residence, he observed a Nissan Xterra parked on the street matching the

description of J.S.’s stolen vehicle. The neighbor pointed out to Sergeant Braiedy the

trail that the men had followed into the woods. Sergeant Braiedy and Kanabec County

Deputy Sheriff Seth Griffin walked along the trail and eventually located two males, who

were later identified as appellant and Jeremy Kellum, attempting to hide underneath a

pine tree. The deputies handcuffed both men and patted them down. They found a set of

brass knuckles in appellant’s front pants pocket and a small black bag containing a small

amount of marijuana residue hidden in appellant’s waistband.          The deputies also

recovered two glass pipes with white residue, a digital scale, and a metal pipe with some

white residue in it underneath the tree.

       While handcuffed, appellant continued to clench one of his fists and failed to heed

the deputies’ instruction to open his hand. Deputy Griffin tased appellant and appellant

relaxed his grip and opened his hand, revealing two baggies containing a crystal-like

substance.    Chemical analysis conducted by the Minnesota Bureau of Criminal

Apprehension determined that one of the baggies contained eight grams of

methamphetamine.

       In June, respondent State of Minnesota charged appellant with numerous crimes,

including: (1) second-degree possession of a controlled substance; (2) fifth-degree

possession of a controlled substance; (3) theft of a motor vehicle; (4) obstruction of the

legal process; (5) possession of metal knuckles; (6) driving after suspension of his

driver’s license; and (7) attempted theft. Appellant pleaded not guilty to all of the

charges and requested a jury trial.


                                            3
       Before trial, the state moved to admit impeachment evidence of appellant’s felony

convictions within the last 10 years, all convictions for crimes involving dishonesty or

false statements, and evidence of appellant’s probationary status at the time of the alleged

offenses under Minn. R. Evid. 609. Appellant’s criminal record includes 11 prior gross

misdemeanors and felonies. Appellant opposed admission of his prior drug offenses

because they were a stipulated-to element of the fifth-degree controlled substance charge

and were the same as the crime charged. Appellant also opposed admission of the 2001

fourth-degree criminal sexual conduct conviction because of its potentially prejudicial

effect on the jury and requested that evidence concerning his probationary status not be

admitted to the jury.

       After considering the relevant factors, the district court ruled that appellant’s

previous felony convictions were “fair game” for impeachment if he chose to testify

given his numerous prior offenses and poor track record on probation. Specifically, the

district court ruled that the state could impeach appellant with the 2003 and 2004

convictions of providing false information to police, the 2009 offense of first-degree

criminal damage to property, the 2007 offense of felony check forgery, and the 2010

violation of a no-contact order, but it barred evidence of the 2001 offense for fourth-

degree criminal sexual conduct under Minn. R. Evid. 609. The district court opined that

the state could use appellant’s prior drug convictions as impeachment evidence on the

condition that they be referred to as prior unspecified felonies and appellant stipulated to

the priors as an element of the fifth-degree controlled substance charge.        Appellant

stipulated to having a fourth-degree controlled substance conviction in 2004, a fifth-


                                             4
degree controlled substance conviction in 2005, and a fifth-degree drug possession

conviction in 2010, which were admitted as unspecified felonies.

        During the three-day jury trial, J.S. testified that on the evening of May 15, she

had placed her car keys in her purse rather than putting them in their usual spot by the

door out of fear that appellant might attempt to take her vehicle while she was asleep.

J.S. denied giving appellant permission to use her vehicle on May 15 or 16.

        Appellant testified on his own behalf and insisted that he had merely borrowed

J.S.’s vehicle. He admitted that his mother had informed him that morning that the

vehicle had been reported stolen and J.S. had demanded that he immediately return the

vehicle. Appellant explained that J.S. routinely allowed him to drive her vehicle in

exchange for babysitting her son, paying her bills, and facilitating exchanges between

J.S.’s son and her son’s dad in the Twin Cities. Appellant explained that he had not

stolen J.S.’s CDs and her son’s video games, but had packed the items in his bag in

anticipation of playing the games with J.S.’s son at his mother’s residence later that

week.

        When questioned by the prosecutor why he had abandoned J.S.’s vehicle and

walked into the woods with Kellum, appellant testified that Kellum, who had been

driving J.S.’s vehicle around Mora, panicked when he saw a police vehicle because he

did not have a valid driver’s license and suggested that they hide in the woods. They

exited J.S.’s vehicle and walked along a trail into the woods and sat down underneath a

tree. Appellant accused the police of beating him up after he was handcuffed and

planting the methamphetamine on his person because they held a grudge against him.


                                             5
         The jury found appellant guilty of all counts.      The district court sentenced

appellant to 30 months for theft of a motor vehicle and 132 months for second-degree

possession of a controlled substance, to be served concurrently, and ordered the

remaining sentences to be served concurrent with the first two sentences. The district

court did not sentence on the lesser-included offenses of fifth-degree possession of a

controlled substance and attempted theft. This appeal follows.

                                     DECISION

I.       The district court did not err by allowing Sergeant Braiedy’s testimony.

         The Confrontation Clause of the United States Constitution bars “admission of

testimonial statements of a witness who did not appear at trial unless he was unavailable

to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004). Whether the admission

of evidence violates a defendant’s rights under the Confrontation Clause is a question of

law that is reviewed de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).

         Appellant argues that his conviction for motor vehicle theft must be reversed

because the district court erred in allowing Sergeant Braiedy to testify that Kellum told

him after being arrested and Mirandized that he knew that appellant “was not to have

possession” of J.S.’s vehicle. The state argues that appellant forfeited any right to raise a

Confrontation Clause objection on appeal because he only raised a hearsay objection at

trial.   At trial, appellant objected to Sergeant Braiedy’s testimony as inadmissible

hearsay, but the district court overruled appellant’s objection under the statement-against-

interest exception to the hearsay rule. See Minn. R. Evid. 804(b)(3).


                                             6
       The state correctly notes that a challenge to the introduction of hearsay testimony

at trial cannot be construed as a Confrontation Clause challenge on appeal. See State v.

Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (holding defendant failed to preserve for

review on direct appeal a claim that his right of confrontation was violated when

defendant’s objection to admission of victim’s statements was based solely on the

residual hearsay exception and it was not apparent from the context of defendant’s

argument that the Confrontation Clause was the basis for defendant’s challenge to

evidence); see also State v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (holding that “a

hearsay objection at trial is not sufficient to preserve a confrontation clause objection on

appeal” (quotation omitted)).

       When a defendant fails to object to the admission of evidence at trial, this court

reviews the admission for plain error, including constitutional challenges.          State v.

Tscheu, 758 N.W.2d 849, 863 (Minn. 2008). Because appellant failed to object at trial,

his Confrontation Clause challenge is subject to plain-error review and warrants reversal

if: (1) an error occurred in the district court; (2) the error was plain; and (3) the error

affects his substantial rights. See id. Plain error exists if “the error contravenes case law,

a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

An error affects the defendant’s substantial rights if the error was prejudicial and affected

the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Appellant

bears the burden of persuasion on the third prong. Id. If these three prongs are satisfied,

we then determine “whether the error seriously affects the fairness, integrity, or public




                                              7
reputation of the judicial proceeding before granting relief.” Hull, 788 N.W.2d at 100

(quotation omitted).

       The state concedes, and we agree, that Kellum’s custodial, post-Miranda

statement to Sergeant Braiedy was testimonial under Crawford. “An accuser who makes

a formal statement to government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51, 124

S. Ct. at 1364; see also State v. Wright, 726 N.W.2d 464, 474 (Minn. 2007) (stating

testimonial statements are those made “when the circumstances objectively indicate that

there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution”

(quotation and italics omitted)). Moreover, the record establishes that while Kellum was

not called to testify at trial, he was included on the state’s list of potential witnesses,

which indicates that he was available to testify. Hence, the district court’s admission of

Sergeant Braiedy’s testimony regarding Kellum’s statement was error.

       The state argues that appellant failed to establish that the error was plain because

in the absence of an objection, “the question . . . is not whether the [district] court erred in

admitting the testimony, because the court was not given the opportunity to make that

decision.” See State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). Instead, the question is

whether the district court committed plain error by “fail[ing] to sua sponte strike the

testimony or to provide a cautionary instruction.” Id. We decline to adopt the state’s

reasoning on the second prong because Vick involved unobjected-to Spreigl testimony,

and was decided before Crawford.          Here, because the district court’s admission of


                                               8
Sergeant    Braiedy’s     testimony   regarding   Kellum’s   statement   contravened    the

requirements of the Confrontation Clause, we conclude that the second prong of the

plain-error test is satisfied.

       Despite the fact that plain error occurred, we conclude that appellant’s substantial

rights were not affected. The challenged testimony supported an inference that appellant

knew that he had stolen J.S.’s vehicle, which in turn could have influenced the jury’s

decision to convict him of motor vehicle theft. But the state presented stronger evidence

on this point, including J.S.’s consistent testimony that she had placed her keys in her

purse in order to prevent appellant from taking her vehicle, and that she had told

appellant that he did not have permission to take her vehicle without her consent.

Appellant and Kellum also acted suspiciously when they abandoned J.S.’s vehicle and

fled into the nearby woods after seeing a squad vehicle. Evidence of flight suggests

consciousness of guilt. State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988). Therefore, we

conclude that admission of Sergeant Braiedy’s statement was not plain error affecting

appellant’s substantial rights.

II.    The district court did not abuse its discretion in admitting evidence of
       appellant’s prior felony convictions for impeachment purposes.

       We review a district court’s ruling on the impeachment of a witness by prior

conviction under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581,

584 (Minn. 1998). Whether the probative value of the prior convictions outweighs their

prejudicial effect is a matter within the discretion of the district court. State v. Graham,

371 N.W.2d 204, 208 (Minn. 1985). Minn. R. Evid. 609(a)(1) allows the admission of



                                             9
evidence of a witness’s past convictions for impeachment purposes if the crime was

punishable by imprisonment in excess of one year and the district court determines that

the probative value of admitting the evidence outweighs its prejudicial effect. When

making this determination, the district court considers five factors set out in State v.

Jones, 271 N.W.2d 534, 538 (Minn. 1978):

              (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.

       A.     Impeachment value.

       “[A] prior conviction can have impeachment value by helping the jury see the

‘whole person’ of the defendant and better evaluate his or her truthfulness.” State v.

Swanson, 707 N.W.2d 645, 655 (Minn. 2006). Appellant argues that the district court

improperly admitted evidence of his prior felony convictions under the “whole person”

doctrine, contending that the criminal damage to property conviction and three

unspecified felonies are not probative of his credibility because they are not crimes of

dishonesty. Appellant contends that Minnesota courts mistakenly allow all previous

convictions to be admitted for impeachment purposes under the “whole person” doctrine,

which defeats the rule’s intended purpose of only allowing convictions that bear upon a

witness’s character for truthfulness. Appellant implicitly requests that we recast the first

Jones factor to only allow impeachment evidence of crimes involving dishonesty.




                                             10
       But we previously rejected a similar argument that “the ‘whole person’ analysis

makes the first Jones factor an ‘anything goes’ test.” See State v. Williams, 757 N.W.2d

504, 509 (Minn. App. 2008), aff’d, 771 N.W.2d 514 (Minn. 2009). Moreover, in State v.

Hill, the Minnesota Supreme Court held that rule 609(a) allows a party to impeach a

witness with an unspecified felony conviction, so long as the underlying conviction is

either a felony or a crime of dishonesty, and the district court finds its probative value to

outweigh any prejudicial effect. 801 N.W.2d 646, 651 (Minn. 2011). “[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.” Id. at 652. Here, the district court properly

found appellant’s challenged felony convictions to be admissible under rule 609(a).

       B.     Date of conviction and subsequent history.

       Convictions occurring within 10 years of trial are presumptively not stale. State v.

Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Appellant challenges the admission of his

2003 and 2004 false information to police convictions and the 2004 controlled substance

conviction, arguing that the district court did not consider whether these convictions were

still probative, i.e., not stale, given that they occurred almost 10 years before trial. Here,

the record shows that the convictions occurred less than 10 years before trial, and the

district court ruled that it would allow impeachment evidence of these convictions

because they were “fair game”—meaning that they were probative of appellant’s

truthfulness. The district court did not abuse its discretion by determining that the second

Jones factor favors admission.




                                             11
       C.     Similarity of Offenses.

       The greater the similarity between the alleged offense and a past conviction, the

more likely it is that the conviction is more prejudicial than probative. Swanson, 707

N.W.2d at 655. Appellant argues that the district court improperly allowed him to be

impeached by his 2003 and 2004 drug offenses by referring to these crimes as

unspecified felonies because these convictions do “not provide the jury with anything to

assess his credibility.” A district court may allow a witness to be impeached with an

unspecified felony conviction so long as the impeaching party can show that its

probativeness outweighs its prejudicial effect under rule 609(a)(1). Hill, 801 N.W.2d at

651. Here, the district court acted properly because it found the prior drug convictions

were admissible under Minn. R. Evid. 609(a), and it negated any possibility of prejudice

by requiring the state to refer to the prior drug convictions as unspecified prior felony

offenses. The district court did not abuse its discretion when it determined that the third

Jones factor weighed in favor of admission.

       D.     Importance of appellant’s testimony and centrality of the credibility
              issue.

       Appellate courts may consider the fourth and fifth Jones factors together. See

Swanson, 707 N.W.2d at 655 (grouping the fourth and fifth factors together).              “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. Appellant concedes that the district court

properly balanced these factors, but again contends that it was inappropriate to allow the

convictions under the “whole person” doctrine. As we noted earlier, the district court



                                             12
acted properly in using the “whole person” doctrine. See Williams, 771 N.W.2d at 518-

19.

       Because none of the Jones factors weigh against admission of appellant’s prior

convictions for impeachment purposes, the district court did not abuse its discretion by

ruling that the evidence was admissible under Minn. R. Evid. 609(a)(1).

III.   Appellant’s pro se supplemental brief does not raise any issues of merit.

       When a brief does not contain an argument or citation to legal authority in support

of allegations raised, the allegation is considered to be waived. State v. Krosch, 642

N.W.2d 713, 719 (Minn. 2002). We disregard any allegations made outside of the

record. See Minn. R. Crim. P. 28.02, subd. 8 (stating that “[t]he record on appeal consists

of the papers filed in the district court, the offered exhibits, and the transcript of the

proceedings, if any”).

       In his pro se supplemental brief, appellant argues that he is not guilty of all

charges because the police framed him by planting evidence at the scene of the crime and

viciously assaulted him. Appellant offers no evidence to support his claims and does not

cite to any legal authority. For these reasons, we consider his allegations to be waived.

       Affirmed.




                                            13
