                          This opinion will be unpublished and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
                                     A15-1504

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Shawnti Tramayne Fleming,
                                       Appellant.

                               Filed September 19, 2016
                                       Affirmed
                                      Ross, Judge

                             Hennepin County District Court
                               File No. 27-CR-12-32133

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Kelly O. Moller, Assistant County Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Johnson,

Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       A jury convicted Shawnti Fleming of second-degree drug possession and child

endangerment after police found 14 grams of crack cocaine in the Chevy Blazer he was

driving with his three-year-old daughter as a passenger. Fleming appeals from his

convictions, arguing that the district court abused its discretion by allowing hearsay in

violation of his right to confront adverse witnesses and by admitting prior-conviction

evidence without a limiting instruction, that the prosecutor committed misconduct by

asking a defense witness how much he was paid to testify, and that his defense counsel

provided constitutionally deficient representation. We affirm because the supposed hearsay

caused no prejudice, the district court acted within its discretion and did not plainly err in

admitting the conviction evidence without giving a limiting instruction, the prosecutor was

permitted to explore witness bias, and trial counsel represented Fleming reasonably.

                                          FACTS

       An informant told Minneapolis police that a tan or gold Chevy Blazer carrying crack

cocaine would arrive at a particular intersection on September 25, 2012, and officers waited

there for it at 5:30 p.m. The Blazer arrived and officers converged on it at gunpoint, finding

three men and a young girl inside. The driver was Shawnti Fleming and the girl was his

three-year-old daughter. Police searched the jacket that Fleming had been holding in his

lap and found two bundles of cash totaling $4,725 and two baggies containing 14 grams of

crack cocaine.




                                              2
       The state charged Fleming with first-degree controlled substance crime (sale) under

Minnesota Statutes section 152.021, subdivision 1(1) (2012), and gross-misdemeanor

endangerment of a child under section 609.378, subdivision 1(b)(2) (2012). Fleming

moved to suppress the drug evidence. The district court held an evidentiary hearing to

determine if the informant’s tip gave police probable cause to arrest Fleming. The district

court suppressed the evidence, holding that the informant’s tip did not give police probable

cause to arrest. On the state’s appeal, this court reversed and remanded for trial. See State

v. Fleming, No. A14-0426 (Minn. App. Sept. 15, 2014).

       Responding to pretrial motions, the district court limited what the arresting officer

could say about the reason for Fleming’s arrest. The district court ruled that the officer

could testify that he had information that there were drugs in the Blazer, but the officer

could not testify about the informant’s statements or how police got the information.

       Officer Jeffrey Werner testified that he was working on a narcotics case. When

asked about a tan or gold Blazer, consistent with the district court’s pretrial ruling, Officer

Werner said, “I had information that that vehicle was going to be arriving in a certain area

with crack cocaine in it.” He told the jury that officers approached with guns drawn. The

officer said he saw a jacket in Fleming’s lap, which fell to the floor when he pulled Fleming

out. Once he handcuffed Fleming, the officer searched the jacket and found $4,725 in cash

and two baggies with 14 grams of crack cocaine.

       Fleming called the two other men from the Blazer to testify. The first man testified

that he did not see Fleming with a jacket, and the second testified that S.R.A., supposedly

another recent passenger, had forgotten his jacket in the backseat when they dropped him


                                              3
off shortly before police stopped the Blazer. Fleming called S.R.A., who testified that he

had forgotten his jacket, which he said had his crack cocaine in its pockets, when he had

been dropped off. The jacket had no personally identifying markings or identifying items.

(S.R.A. claimed that his father’s identification was also in the jacket, but the officer

testified that he found no one’s identification.)

       The prosecutor ended S.R.A.’s cross-examination this way:

              Q: Okay. So how much did you get paid to do this here today?
              A: What are you talking about? Is that an appropriate question?
              THE COURT: Just answer the question
              THE WITNESS: I didn’t get paid nothing.

Fleming’s attorney did not object to any of this exchange.

       Fleming testified in his own defense. The state had informed him before trial that,

if he testified, it would seek to introduce five prior felony convictions to impeach him. The

district court allowed only the two most recent convictions for impeachment purposes: a

2003 fifth-degree drug possession conviction and a 2006 second-degree drug possession

conviction, with the 2006 conviction only named as an unspecified felony. Fleming

testified that he had dropped S.R.A. off a few minutes before being arrested and that the

jacket was never in his lap. He also testified that the money was not in the jacket but was

taken from his pants pocket, and he said he was carrying such a large amount of cash so he

could buy a car. Fleming did not at any point request, and the district court did not give, a

limiting instruction restricting the jury’s consideration of the impeachment evidence.




                                              4
       The jury acquitted Fleming of the first-degree sale charge but found him guilty of

the lesser included offense of second-degree possession and of child endangerment. The

district court sentenced Fleming to 98 months in prison. Fleming appeals.

                                      DECISION

       Fleming raises several arguments challenging his convictions. First, he argues that

the arresting officer’s testimony was inadmissible hearsay that violated his confrontation

right. Second, he maintains that the district court abused its discretion by allowing the state

to impeach him with two prior convictions and then plainly erred by not giving the jury a

limiting instruction on how it may consider the convictions. Third, he argues that the

prosecutor committed misconduct by asking S.R.A. whether he was paid for his testimony.

Fourth, he asserts that his trial counsel provided him constitutionally deficient

representation. He raises several additional arguments in a pro se supplemental brief.

                                               I

       Fleming argues that Officer Werner’s testimony about his knowledge of the Blazer

containing drugs constituted inadmissible hearsay under State v. Litzau, 650 N.W.2d 177,

182 (Minn. 2002). Litzau does not carry Fleming’s argument. It reminds us that we review

evidentiary rulings for an abuse of discretion. Id. The Litzau court explained that, when the

purpose is to explain police action, testimony that police received a tip is not inadmissible

hearsay. Id. The opinion includes a limit, however, so that an officer may not relate hearsay

statements of others to explain how the investigation focused on the defendant. Id.

       The rule presented and applied in Litzau asks two parallel questions: whether the

officer’s testimony contains inadmissible hearsay and whether its probative value is


                                              5
substantially outweighed by the danger of unfair prejudice. Litzau, 650 N.W.2d at 182–83;

see generally State v. Hardy, 354 N.W.2d 21, 24–25 (Minn. 1984) (noting that the

prosecutor tried to use the contents of a tip for a hearsay purpose, but that even a limited

elicitation for a nonhearsay purpose would have been unjustifiably prejudicial). Comparing

this case to Litzau is instructive. In Litzau, the arresting officer testified, “I explained to

[appellant] that we had a reliable source that has told us that he was carrying—transporting

drugs in his car.” Id. at 181. And the police chief testified that he had received a “tip

indicating the suspicion that [appellant] possessed controlled substances.” Id. The supreme

court held that these statements constituted inadmissible hearsay, and it implied that they

were unfairly prejudicial under rule 403 given that “[t]here was no reason for the officers’

testimony about the substance of the informant’s conversation which pointed directly to

appellant’s guilt of the crime for which he was on trial.” Id. at 183.

       When it determined that the testimony contained inadmissible hearsay, the Litzau

court noted United States v. Williams, 133 F.3d 1048, 1052 (7th Cir. 1998), for the

proposition that an “officer’s testimony must be limited to the fact that he spoke to an

informant without disclosing the substance of that conversation.” Litzau, 650 N.W.2d at

183 n.4. The Williams court stated that “[t]estimony recounting the conversation between

a government agent and an anonymous informant where the informant identifies the

defendant and the substance of the conversation is offered into evidence constitutes

inadmissible hearsay.” 133 F.3d at 1052 (emphasis added). Williams, like Litzau and

Hardy, involved statements that directly identified and implicated the defendants. These

cases highlight a key aspect of the limit on officer testimony concerning tips: that the


                                              6
officer “may not, under the guise of explaining how [the] investigation focused on

defendant, relate hearsay statements of others.” Litzau, 650 N.W.2d at 182 (emphasis

added). The use of the word “guise” implies that the true purpose of the statement would

not be to explain police conduct, but rather to implicate the defendant directly.

       In contrast with Litzau, Officer Werner testified that he had “information that that

vehicle was going to be arriving in a certain area with crack cocaine in it.” Unlike the

statement in Litzau, this statement did not implicate the defendant, but only the “vehicle”

without reference to anyone in particular. The statement is consistent with Fleming’s

defense, which was that the drugs belonged to someone who had allegedly been in the

Blazer (S.R.A.), not that there were no drugs in the Blazer. That the statement did not point

to Fleming renders it nonprejudicial and admissible under Litzau, and the fact that the

statement dovetails with Fleming’s argument reinforces this conclusion. And the statement

that the Blazer “was going to be arriving in a certain area with crack cocaine in it” was

offered to explain police action rather than to prove that the vehicle was in the area and

contained crack cocaine. The substance of Officer Werner’s testimony here was not offered

to prove the truth of the matter asserted.

       Fleming also argues that Officer Werner’s testimony violates the Confrontation

Clause because he was unable to cross-examine the declarant. But even if the statement

contained testimonial hearsay that violated Fleming’s right to confrontation, its admission

does not require reversal. We review violations of the Confrontation Clause for harmless

error, asking whether a violation was harmless beyond a reasonable doubt. State v.

Courtney, 696 N.W.2d 73, 79 (Minn. 2005). We consider the manner in which the evidence


                                             7
was presented, whether it was highly persuasive, whether it was used in a closing argument,

whether it was effectively countered, and the strength of the evidence. Id. at 80.

         Officer Werner’s testimony about the substance of the tip was brief and not

apparently “aimed at having an impact on the verdict.” Litzau, 650 N.W.2d at 184. Nor

was it very persuasive concerning Fleming’s guilt. The trial did not address the issue of

whether the Blazer contained crack cocaine (the substance of the supposed hearsay

declaration). Fleming’s defense was that the drugs belonged to another, not that there were

no drugs in the Blazer, and this defense mitigated any potential harm from the testimony.

The testimony was referenced in closing, but the references mainly explained police

conduct. And the state presented consistent evidence showing the location of the jacket in

Fleming’s lap at the time of the stop and proving that the jacket contained crack cocaine.

Fleming’s defense witnesses presented numerous inconsistencies. We conclude that any

potential violation of Fleming’s right to confrontation was harmless beyond a reasonable

doubt.

                                             II

         Fleming challenges the district court’s decision allowing him to be impeached with

two prior convictions. A witness’s prior felony convictions are admissible to impeach

credibility if the district court determines that the conviction’s probative value outweighs

its prejudicial effect. Minn. R. Evid. 609(a)(1). To evaluate whether prior convictions may

be used to impeach the defendant, the district court considers five factors: (1) the prior

conviction’s impeachment value, (2) the conviction’s date and the defendant’s subsequent

criminal history, (3) the similarity of the past crime and the charged crime (with greater


                                             8
similarity weighing against admission), (4) the importance of the defendant’s testimony,

and (5) the centrality of credibility in the case. State v. Jones, 271 N.W.2d 534, 537–38

(Minn. 1978). We review the district court’s decision to admit prior convictions for a clear

abuse of discretion. State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006).

       The district court allowed the state to impeach Fleming with a 2003 fifth-degree

possession conviction and a 2006 second-degree possession conviction, but it restricted the

2006 conviction to being referred to as only a felony conviction without specifics.

Minnesota Rule of Evidence 609(a) allows a party to impeach a witness with unspecified

felony convictions. State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011). Whether to disclose

the details of the conviction is within the district court’s discretion. Id.

       Fleming argues that the fifth-degree possession conviction should have been

introduced only as an unspecified felony, if at all, because its only relevance is an

impermissible propensity inference. Not so. A conviction for any felony carries some

impeachment value. Id. The comments to rule 609 resolve the tension between properly

using felonies to impeach and improperly inviting juries to draw an impermissible

inference that the defendant tends to commit certain crimes. See Minn. R. Evid. 609 cmt.

The rules arm the district court with the discretion to exclude convictions when potential

prejudice outweighs the probative value. The solution is not what Fleming implicitly

suggests, which is to require that similar prior convictions may be referred to only

generally. The district court analyzed both convictions applying the Jones factors and

determined that the probative value outweighed the prejudicial effect of admitting the prior




                                               9
convictions. It reasoned that sanitizing only one of the two convictions was necessary. This

demonstrates the district court’s proper exercise of its discretion.

       Fleming also argues that the district court erred by failing to give the jury a limiting

instruction that it may consider the prior convictions only for impeachment and not as

evidence that Fleming was predisposed to commit drug crimes. Because Fleming did not

request a limiting instruction during trial, we review only for plain error. State v. Taylor,

869 N.W.2d 1, 17 (Minn. 2015). Fleming must show that the district court committed an

error, that is plain, and that the error affected his substantial rights. Id. at 15. We will then

reverse only if the error seriously affects the fairness, integrity, or public reputation of the

proceedings. Id.

       The supreme court in Taylor recognized that it had previously cautioned only that

district courts should give limiting instructions for prior convictions even when not

requested, but it held that failing to do so is not error. Id. at 18. The district court did not

plainly err by not sua sponte instructing the jury on how it should consider Fleming’s prior

convictions.

                                              III

       Fleming argues that the prosecutor committed misconduct by asking S.R.A. how

much he was paid to testify. His defense counsel did not object to the question, and

therefore we review under a modified plain-error standard. State v. Ramey, 721 N.W.2d

294, 296 (Minn. 2006). The appellant must identify an error and show that the error was

plain. Id. at 302. If he does, the burden shifts to the state to show that the error did not

prejudice the appellant’s substantial rights. Id. If the state fails to make this showing, we


                                               10
decide whether ensuring fairness and integrity in judicial proceedings requires correcting

the error. Id.

       Fleming argues that the prosecutor had no good-faith reason to ask S.R.A. whether

he was being paid to testify. To the extent he is arguing that the question sought irrelevant

evidence, he is wrong. Cross-examination is the principal way a witness’s credibility and

the truth of his statements are tested. Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105,

1110 (1974). And one important purpose of cross-examination is to expose a witness’s

biases or motives for testifying. State v. Ferguson, 742 N.W.2d 651, 656 (Minn. 2007).

Whether a witness believes he will be financially rewarded for his testimony therefore

bears on his credibility, and witness credibility is always at issue. And even if asking

whether a witness is being paid for his testimony sought categorically inadmissible

evidence, Fleming was not harmed by the question because the witness’s unequivocal and

uncontested answer established that he was not being paid.

       Fleming maintains that the question misleadingly insinuated the existence of

evidence. He relies on three cases for the proposition that the prosecutor committed

reversible error because “[m]erely asking the question . . . planted [the] possibility in the

jurors’ minds” that S.R.A. was being paid when the prosecutor had no good-faith reason to

believe he was being paid. We do not read the cases that way. Each raises either a challenge

to a prosecutor’s questions that elicited inadmissible evidence or a challenge to a

prosecutor’s question that itself implied inadmissible evidence by an insinuation that was

not corrected by the witness’s answers. The cases therefore do not go far enough to support




                                             11
Fleming’s argument challenging the admissible and clearly nonprejudicial answer here—

“I didn’t get paid nothing.”

       The first case Fleming relies on is State v. Strommen, 648 N.W.2d 681, 686 (Minn.

2002). In Strommen, the prosecutor asked the arresting officer whether he knew the

defendant by name based on the defendant’s prior involvement with the police. 648

N.W.2d at 687. The officer replied, “Oh, yes, I know who he is,” and the officer verified

that he knew the defendant “[f]rom, like you say, prior contacts and incidents” with police.

Id. at 685. The supreme court saw the question as eliciting irrelevant, prejudicial evidence

that was otherwise inadmissible. Id. at 688. By contrast, the prosecutor here asked S.R.A.

“how much” he was paid for his testimony, to which S.R.A. answered, “nothing.” Whether

or not the question was proper, the uncontested answer favored Fleming and prevented the

jury from supposing that S.R.A. was in fact paid for his testimony.

       The next case Fleming relies on is State v. Currie, 267 Minn. 294, 126 N.W.2d 389,

(1964). The prosecutor in Currie cross-examined a defense witness asking whether she

knew two named individuals, to which the witness said, “No.” Id. at 299, 126 N.W.2d at

393. The prosecutor then introduced inadmissible evidence by dressing up a highly

prejudicial statement as a question, saying, “You know that [the defendant’s] done time

with the two of them, don’t you?” Id. at 299, 126 N.W.2d at 394. The supreme court saw

the last “question” as error because “[t]he language used by the prosecutor [was] open to

all kinds of prejudicial inferences.” Id. at 302, 126 N.W. 2d at 395. The court reasoned,

“[I]t is obvious that the effect of the question was to impugn the character of defendant . . . .

No showing was made as to whether she supposedly had been convicted of a felony, a


                                               12
violation of the city ordinance, or what; and there was no attempt to make such showing.”

Id. at 301, 126 N.W.2d at 395. Here, again by contrast, the prosecutor’s question did not

invite the witness to give inadmissible testimony, and the witness’s answer disposed of any

errant implication.

       In the third and earliest case that Fleming relies on, Michelson v. United States, the

United States Supreme Court dealt with a question the prosecutor asked four witnesses:

“Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was

arrested for receiving stolen goods?” 335 U.S. 469, 472, 69 S. Ct. 213, 216 (1948). None

of the witnesses had ever heard of the fact implied by the prosecutor’s question. Id. at 472,

69 S. Ct. at 216. And like the improper prosecution questions the Currie and Strommen

courts would later address, the implied fact was prejudicial and otherwise inadmissible. Id.

at 472, 484, 69 S. Ct. at 216, 223. This case would be similar to Michelson if the prosecutor

here had asked some other witness, for example, “Did you know that three days ago Mr.

Fleming’s attorney handed S.R.A. $250 in cash for his testimony today?” In that situation,

the question implies a specific prejudicial fact that the jury would suppose is true regardless

of how the witness answers. A question like that can be justified only if the prosecutor has

a good-faith belief both that the implied fact itself constitutes admissible evidence and that

admissible evidence is available to prove the implication. For the same reasons that this

case does not resemble Currie and Strommen, it does not resemble Michelson.

       Asking the witness how much he was paid for his testimony invited S.R.A. to

answer in a way that prevented any false implication from surviving the exchange. We add

that, although we have analyzed the prosecutor’s question as it was presented to us in the


                                              13
form of a straightforward inquiry, there is another way one might interpret the question.

Transcripts reveal what words were said, not how the words were said. It is plausible under

the circumstances here that the prosecutor did not actually intend to inquire whether S.R.A.

was paid and that this was apparent to the listening jury; the prosecutor might instead have

intended the question to be a rhetorical barb, pointing out with a tinge of sarcasm not that

S.R.A. might have been paid for his testimony, but that his testimony was so apparently

unbelievable that only payment could explain it. The transcript cannot reveal inflection,

and so the tone of any courtroom theatrics is lost to us. But taking the issue as it has been

presented, we hold that the prosecutor did not commit misconduct by inquiring about the

witness’s potential bias through payment for his testimony, and even if he had, the

witness’s answer foreclosed the implication and prevented any prejudice.

                                             IV

       Fleming argues that his trial counsel’s failure to request a limiting instruction and

to object to the payment-for-testimony question constituted ineffective assistance of

counsel. We are unconvinced. To succeed on this claim, Fleming must show that the

representation fell below an objective standard of reasonableness and that, but for counsel’s

errors, the result of his trial would have been different. Strickland v. Washington, 466 U.S.

668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). An attorney must exercise “the

customary skills and diligence” of a reasonably competent attorney under similar

circumstances. State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000). A strong

presumption exists that an attorney’s performance falls within a wide range of reasonable

professional assistance. Id.


                                             14
       The state argues both alleged deficiencies were not unreasonable and were instead

trial strategy. The supreme court has said that failure to request a limiting instruction for

rule 609 impeachment is sometimes a matter of trial strategy. Taylor, 869 N.W.2d at 17

n.8. We can imagine several strategic reasons why trial counsel did not object to the

payment-for-testimony question. For example, if S.R.A.’s courtroom demeanor made his

testimony appear particularly incredible and the prosecutor’s question was, as we have

suggested, more of a sarcastic, rhetorical jab at the testimony, Fleming’s attorney might

reasonably have chosen not to defend S.R.A. Again, the transcript cannot tell us all we

need to know on that possibility. If the question seemed instead to be a serious inquiry, by

objecting to it Fleming’s attorney would both call attention to the question and invite the

jury to wonder if he feared the answer. Objecting might also have left the question

unanswered, leaving the jury to believe the worst. He might have reasoned that S.R.A.

could manage to parry the question himself with a solid answer, which he apparently

provided. Perhaps Fleming’s attorney doubted that he had a sound, legal objection. Fleming

has failed to carry his burden to show his counsel’s assistance was unreasonable.

       Fleming’s arguments in his pro se supplemental brief do not merit further

discussion. Many of the arguments address issues decided in his prior appeal. We will not

reexamine these claims, relying on the law-of-the-case doctrine. See State v. Bailey, 732

N.W.2d 612, 624 (Minn. 2007). Fleming also argues that his former appellate attorney gave

constitutionally deficient representation by failing to file a cross-appeal under Minnesota

Rule of Criminal Procedure 28.04, subdivision 3, which allows a defendant who is




                                             15
responding to the state’s appeal of a pretrial ruling to challenge any adverse pretrial order.

But he points us to no adverse pretrial order that he might have challenged.

       Affirmed.




                                             16
