                            This opinion will be unpublished and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
                                       A15-0748

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                    Mackey Keyota Drake,
                                         Appellant.

                                     Filed May 16, 2016
                                          Affirmed
                                      Peterson, Judge

                                  Rice County District Court
                                   File No. 66-CR-14-809

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

John Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

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

         Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,

Judge.

                           UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from a conviction of violating the terms of a domestic-abuse order for

protection, appellant argues that he was deprived of a fair trial by (1) the district court’s
evidentiary rulings, (2) the district court’s refusal to grant a continuance following the

state’s late disclosure of evidence, (3) defense counsel’s failure to effectively cross-

examine the victim, and (4) the district court’s misstatement of the law during jury

instructions. We affirm.

                                          FACTS

       Appellant Mackey Keyota Drake and C.L. met in June 2012 and began a romantic

relationship. When the relationship ended in April 2013, C.L. obtained an order for

protection (OFP) against Drake that prohibited him from having any contact with C.L.

Drake was charged with violating the OFP by making phone calls to C.L. on March 14 and

15, 2014, and the case was tried to a jury.

       C.L. testified at trial that she was the one who decided to end the relationship, and,

over Drake’s objection, she obtained the OFP because there had been violence in the

relationship. C.L. testified about two phone calls that she received from Drake in March

2014. She received the first call in the evening from a number that she did not recognize.

When she answered, she recognized Drake’s voice. According to C.L., Drake said that he

had gotten C.L.’s phone number from one of his friends, he wanted C.L. to move back to

the cities, she was his property, and he would come to get her if she did not move back.

Drake claimed that he and C.L. were still married, although they had never been married.

C.L. received a second call from the same number at 1:00 a.m. She answered the phone

and identified the caller’s voice as Drake’s. C.L. received other calls from unknown

numbers, which she suspected was Drake using someone else’s phone to call her. C.L.

called the police and reported the calls from Drake.


                                              2
       Morristown Police Officer Christopher Langr responded to C.L.’s call. C.L. told

Langr that she had an OFP against Drake and that he had called her cell phone. Langr took

photographs of C.L.’s cell phone, and he testified at trial that the photographs, exhibits 2

and 3, showed that two calls were made from Drake’s phone number to C.L.’s cell phone.

Langr testified that one of the photographs, exhibit 3, showed “[t]hat the phone call was

answered and that there was an on-going live connection between the two phones.” Langr

used his work cell phone to call Drake’s number. A man with a low voice answered the

call but did not say anything when Langr asked for Drake, and Langr hung up. When Langr

was asked if he talked to C.L. about whether she spoke to Drake, Langr testified:

                    At that point it was kind of her own investigation also,
              she was answering the phone calls and trying to confirm who
              was calling her.

                     I myself did not witness or was able to record any of the
              conversations. Therefore, I did not make any documentation
              saying that I heard what she said or anything to that matter.

       Drake denied making any calls to C.L. He testified that his phone was missing for

a week in March 2014, including on March 15. Drake testified that his friend Bo, who had

had an intimate relationship with C.L., had taken the phone. Drake claimed that he was

the one who had broken up with C.L. and that he had not had any contact with her since

that time. Drake suspected that Bo made the calls to C.L. and pretended to be Drake, and

C.L.’s phone log showed a call to a Bo.

       In closing argument, defense counsel emphasized that C.L. did not disclose until

trial that a conversation occurred between her and Drake and argued that the reason C.L.

did not disclose the conversation sooner was because it never occurred. Defense counsel’s


                                             3
argument addressed the credibility of C.L.’s testimony that she recognized Drake’s voice

versus Drake’s testimony that he did not have his phone when the calls were made to C.L.

In rebuttal, the prosecutor stated: “So this idea that [these] conversations [are] the crucial

piece of this, . . . it just doesn’t matter. He can’t cause her phone to ring, he cannot contact

her in any fashion, whether or not they had a conversation.” The district court instructed

the jury:

                     The elements of a violation of an Order for Protection
              are[:] first, there was an existing court order for protection;
              second, that [Drake] knew of the existence of the order; third,
              [Drake] violated a term or condition of the order by calling
              [C.L.]; four, [C.L.] received a call from [Drake] on or about
              March 15, 2014 . . . .

       The jury found Drake guilty of violating the OFP, and the district court sentenced

him to an executed term of 33 months in prison. At the sentencing hearing, Drake exercised

his right to make a statement, asserting that the photographs of C.L.’s phone log indicated

that C.L. missed a call from Drake’s phone at 1:09 a.m. when she was on a call with Bo

and that C.L. made a call to Drake’s phone at 3:14 a.m. The district court stated that

Drake’s assertion went to the sufficiency of the evidence, which was an issue that could be

raised on appeal and was not relevant to sentencing.

       This appeal follows.

                                       DECISION

                                               I.

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203



                                               4
(Minn. 2003). “On appeal, the appellant has the burden of establishing that the [district]

court abused its discretion and that appellant was thereby prejudiced.” Id.

       Relationship evidence

       Drake argues that the district court abused its discretion in admitting evidence that

C.L. obtained the OFP because there had been violence in her relationship with Drake.

Defense counsel objected to the evidence, and the prosecutor argued that the evidence was

admissible under Minn. Stat. § 634.20 (2014) to explain why C.L. obtained the OFP. The

district court allowed the evidence and gave a limiting instruction, stating that the only

purpose of the evidence was for the jury to understand why the OFP was obtained and that

it was not relevant to whether Drake violated the OFP and could not be considered for that

purpose.

       Minn. Stat. § 634.20 states:

                     Evidence of domestic conduct by the accused against
              the victim of domestic conduct . . . is admissible unless the
              probative value is substantially outweighed by the danger of
              unfair prejudice, confusion of the issue, or misleading the jury,
              or by considerations of undue delay, waste of time, or needless
              presentation of cumulative evidence. “Domestic conduct”
              includes, but is not limited to, evidence of domestic abuse,
              violation of an order for protection under section 518B.01;
              violation of a harassment restraining order under section
              609.748; or violation of section 609.749 [stalking] or 609.79,
              subdivision 1 [obscene or harassing phone calls].

“Domestic abuse” includes “physical harm, bodily injury, or assault”; or “the infliction of fear

of imminent physical harm, bodily injury, or assault.” Minn. Stat. §§ 518B.01, subd. 2(a)(1)-

(2), 634.20 (2014).




                                               5
       In State v. McCoy, the supreme court adopted “Minn. Stat. § 634.20 as a rule of

evidence for the admission of evidence of similar conduct by the accused against the

alleged victim of domestic abuse.” 682 N.W.2d 153, 161 (Minn. 2004). The supreme

court explained that such evidence may be admitted “to put the crime charged in the context

of the relationship between the two” and to “assist[] the jury by providing a context with

which [to] better judge the credibility of the principals in the relationship.” Id. at 159, 161.

After McCoy was decided, the legislature amended Minn. Stat. § 643.20 to use the phrase

“domestic conduct” instead of “similar conduct.” 2013 Minn. Laws ch. 47, § 7, at 208.

The supreme court has noted that the 2013 amendment “did not change the underlying

definition.” State v. Fraga, 864 N.W.2d 615, 627 n.12 (Minn. 2015).

       Drake argues that “[t]he conduct alleged in this case was not ‘similar’ to the prior

allegation, as required by section 634.20.” But Minn. Stat. § 634.20 specifically includes

“evidence of domestic abuse” in the definition of “domestic conduct,” and the definition of

“domestic conduct” is identical to the definition of “similar conduct” in the previous version

of the statute. Compare Minn. Stat. § 634.20 (2012), with Minn. Stat. § 634.20 (2014).

       Drake also argues that any probative value was substantially outweighed by the danger

of unfair prejudice. “[U]nfair prejudice is evidence that persuades by illegitimate means,

giving one party an unfair advantage.” State v. Swinger, 800 N.W.2d 833, 839 (Minn. App.

2011) (quotation omitted), review denied (Minn. Sept. 28, 2011). “Evidence that is

probative, though it may arouse the passions of the jury, will still be admitted unless the

tendency of the evidence to persuade by illegitimate means overwhelms its legitimate

probative force.” State v. Schulz, 691 N.W.2d 474, 478-79 (Minn. 2005). One of those


                                               6
illegitimate means is “[e]vidence of a person’s character or a trait of character” introduced

“for the purpose of proving action in conformity therewith on a particular occasion.” Minn.

R. Evid. 404(a).

       C.L. responded “[y]es” to the prosecutor’s question about whether she had obtained

the OFP because there had been violence in her relationship with Drake, and the issue of

violence was not brought up again. Given the single, brief reference to violence and the

district court’s limiting instruction, there was not a risk of persuasion by illegitimate means.

       Impeachment evidence

       Minn. R. Evid. 609(a)(1), (b), allows evidence of a felony conviction to be admitted

for impeachment purposes provided that ten or fewer years have elapsed since the

conviction or release from confinement and the probative value of the evidence outweighs

its prejudicial effect. In considering whether probative value outweighs prejudicial effect,

a district court considers five factors: “(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; (4) the importance of defendant’s testimony; and (5) the

centrality of the credibility issue.” State v. Williams, 771 N.W.2d 514, 518 (Minn. 2009)

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

       The state sought to admit evidence of two prior felony convictions, a 2013

conviction of violating a no-contact order and a 2011 conviction of domestic assault. The

district court ruled that the state could elicit testimony that Drake had been convicted of

two felonies but could not specify the offenses. Drake argues that the district court abused

its discretion by admitting the evidence of his prior convictions.


                                               7
       1. Impeachment value

       The Minnesota Supreme Court has ruled that “impeachment by prior crime aids the

jury by allowing it to see the whole person” and better judge credibility because “abiding

and repeated contempt for laws [that one] is legally and morally bound to obey”

demonstrates a lack of trustworthiness. State v. Brouillette, 286 N.W.2d 702, 707 (Minn.

1979) (quotations omitted). “[T]he fact that a prior conviction did not directly involve truth

or falsity does not mean it has no impeachment value.” Williams, 771 N.W.2d at 518

(quotation omitted); see also State v. Hill, 801 N.W.2d 646, 651-52 (Minn. 2011)

(reaffirming application of whole-person rationale and stating that “any felony conviction

is probative of a witness’s credibility”). The district court did not err in applying the whole-

person rationale and finding that this factor favored admission of evidence of the prior

convictions.

       2. Dates of convictions

       The district court found that this factor favored admission because both convictions,

having occurred one and three years before trial, were well within the rule 609 ten-year

time limit. Drake concedes that this factor favors admission.

       3. Similarity of past crimes with charged crime

       The district court found that the past crimes and the charged crime were similar

because all involved domestic violence, so the court ruled that the past offenses would be

unspecified.

               If a court finds that the prejudicial effect of disclosing the
               nature of a felony conviction outweighs its probative value,
               then it may still allow a party to impeach a witness with an


                                               8
              unspecified felony conviction if the use of the unspecified
              conviction satisfies the balancing test of Rule 609(a)(1).

Hill, 801 N.W.2d at 652-53.

       4. Importance of defendant’s testimony

       When a defendant testifies, as Drake did in this case, this factor does not weigh

against admissibility. See State v. Abbott, 356 N.W.2d 677, 680 (Minn. 1984) (stating that

district court’s decision to allow admission of evidence of prior conviction “did not have

the effect of keeping defendant’s version of the events from the jury” because he testified

and his credibility was at issue).

       5. Centrality of credibility

       When a defendant’s credibility is central to his defense, this factor weighs in favor

of admitting evidence of the prior convictions. State v. Swanson, 707 N.W.2d 645, 655

(Minn. 2006). “[I]f the issue for the jury narrows to a choice between defendant’s

credibility and that of one other person then a greater case can be made for admitting the

impeachment evidence, because the need for the evidence is greater.” State v. Bettin, 295

N.W.2d 542, 546 (Minn. 1980). Because this case narrowed to a choice between Drake’s

and C.L.’s credibility, this factor favored admission of evidence of the prior convictions.

       The district court did not abuse its discretion in balancing the Jones factors and

allowing Drake to be impeached with the unspecified felony convictions.

       Drake’s probationary status

       The district court denied Drake’s motion in limine to exclude evidence of his

probationary status and allowed his probation officer to provide Drake’s phone number and



                                             9
testify that he supervised Drake. The probation officer testified that he called Drake using the

number and that the caller identification on his phone showed that Drake used the phone with

that number to make calls to the probation officer. Drake argues that the evidence of his

probationary status was inadmissible because it was evidence of prior bad acts. He contends

that the jury did not need to know that he was on probation in order for the state to prove that

the phone number belonged to him. But the state did not need to prove only that the phone

number belonged to Drake; the state needed to prove that Drake made calls to C.L. The

probation officer’s testimony was evidence that the number that appeared on C.L.’s phone was

the number for a phone that Drake actually used to make and receive calls.

       Drake argues that the jury could have been prevented from receiving evidence of his

probationary status by having the probation officer identify himself as a county employee,

rather than as a probation officer. We have found nothing in the record that indicates that this

option was presented to the district court, and Drake has not explained how the district court

abused its discretion by failing to independently choose this option. But, even if the district

court erred in admitting the evidence, we are not persuaded that the error was prejudicial

because the probation officer’s identity was referred to only to explain why he knew what

Drake’s phone number was. The probation officer did not identify the offense for which Drake

was on probation or say anything about Drake’s probationary status. See State v. Hall, 764

N.W.2d 837, 843 (Minn. 2009) (concluding that new trial was not warranted when reference

to defendant’s prior conviction was of a passing nature and was not dwelled on or highlighted

for the jury).




                                              10
                                            II.

       The district court has discretion to decide whether to grant a continuance. State v.

Miller, 488 N.W.2d 235, 239 (Minn. 1992). On review of a denial of a continuance request,

an appellate court must examine “the circumstances surrounding the requested continuance

and whether the denial was so prejudicial in the preparation of an adequate defense as to

materially affect the outcome of the trial.” Id. (quotation omitted). “A defendant must

show prejudice to justify reversal.” State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).

       On the second day of trial before the jury was sworn, the prosecutor met with C.L.

for the first time to go over her testimony, and C.L. stated that she had had a conversation

with Drake when he called. C.L. had not previously stated that a conversation occurred.

Defense counsel requested a mistrial or that the evidence be excluded. The district court

stated that defense counsel’s request was not properly characterized as a request for a

mistrial because the jury had not been sworn and addressed whether the case should be

continued. The district court denied a continuance. The court offered to grant a 30-minute

recess to allow defense counsel to meet with C.L., but defense counsel declined the offer

because he did not want to meet with C.L. alone, which could make him a potential witness,

or with a representative from the county attorney’s office.

       Drake asserts that the late disclosure changed his trial strategy because his theory

had been that an unanswered call was not “contact” and the state could not prove that Drake

made the call when it was not answered. Drake argues:

              With additional time the defense could have had an
              investigator speak with witnesses, further examined the phone
              history log, and consulted with an expert to examine the phone


                                            11
              and decode meanings of the call history symbols which appear
              to suggest that there was only one incoming, answered call
              from “Mackey;” the other call appears to be outgoing and
              unanswered.

       The cases relied on by Drake involved scientific, technical issues. State v. Holmes,

No. A04-1017, 2005 WL 1804256, at *2 (Minn. App. Aug. 2, 2005) (after voir dire began

in criminal-sexual-conduct case, state disclosed that examining nurse had specialized

training in examining sexual-assault victims and would testify that photographs showed

tears, rather than abrasions, and that she had never seen this type of injury in a consensual-

sex investigation), review denied (Minn. Oct. 26, 2005); State v. Scharfencamp, 416

N.W.2d 825, 826 (Minn. App. 1987) (in driving-while-impaired case, defense prepared for

trial believing nurse would testify that she used a brown-stoppered vial to store the

defendant’s blood rather than a gray-stoppered vial that contained the proper chemicals for

blood-alcohol testing, but learned on the day of trial that nurse would testify that she used

a gray-stoppered vial).

       Unlike Scharfencamp and Holmes, Drake has not shown that a need for an expert to

examine the phone arose only when C.L. stated that she spoke with Drake when he called.

If the call-history symbols appeared to suggest that there was one incoming, answered call

from Mackey, which is Drake’s first name, the meanings of the symbols were essential to

Drake’s theory that there was no contact because there was no answered call. If an expert

was needed to examine the call-history log and decode the call-history symbols, the expert

was needed before C.L. stated that she spoke with Drake.




                                             12
       Drake responded to C.L.’s testimony that she spoke with him by attacking her

credibility. This was a straightforward case with only four witnesses, and Drake does not

identify any additional information that he could have learned to rebut C.L.’s testimony

that she spoke to Drake by having an investigator interview witnesses. Also, as the district

court noted, C.L. was a known witness who could have been interviewed by an investigator

for defense counsel before trial. Because Drake has not shown that the denial of the

continuance caused him prejudice, he is not entitled to a new trial on that basis.

                                            III.

       To prevail on a claim of ineffective assistance of counsel, a defendant must show

“(1) that his counsel’s representation ‘fell below an objective standard of reasonableness’;

and (2) ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Nissalke v. State, 861 N.W.2d 88,

94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct.

2052, 2064, 2068 (1984)). “The objective standard of reasonableness is defined as

representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” State v.

Vang, 847 N.W.2d 248, 266-67 (Minn. 2014) (quotations omitted) (noting that “counsel’s

performance is presumed to be reasonable”). An appellate court generally will not review

counsel’s trial strategy. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).

       Drake argues that his trial counsel provided ineffective assistance by failing to

cross-examine C.L. about her phone’s call-log history. Drake asserts that exhibit 3 shows

a 1:09 a.m. outgoing call from C.L.’s phone to Drake’s phone, indicating that her testimony


                                             13
that she answered a call from Drake at 1:00 a.m. was not credible. But defense counsel

might have made a strategic decision to attack C.L.’s credibility by focusing on her failure

to disclose until trial that she had a conversation with Drake rather than highlighting the

call-log history. As Drake notes, the call-log history also apparently indicates an incoming,

answered call, and multiple calls were not required to support Drake’s conviction. Because

Drake has not shown that defense counsel’s cross-examination of C.L. fell below an

objective standard of reasonableness, rather than being a matter of trial strategy, we cannot

conclude that Drake received ineffective assistance.

                                              IV.

         Because Drake did not object to the jury instructions, the plain-error standard of

review applies. See State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016).

                Under plain-error analysis, [the defendant] must show that:
                (1) there was error; (2) that was plain; and (3) his substantial
                rights were affected. . . . If these three prongs are met, the
                reviewing court then assesses whether it should address the
                error to ensure the fairness and integrity of the judicial
                proceedings.

State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012) (quotation and citations omitted).

         “Jury instructions, reviewed in their entirety, must fairly and adequately explain the

law of the case.” State v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011). “An instruction is

in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.

2001).

         During rebuttal, the prosecutor argued that a call did not have to be answered for a

violation of the OFP to occur. The district court instructed the jury:



                                              14
                     The elements of a violation of an Order for Protection
              are[:] first, there was an existing court order for protection;
              second, that [Drake] knew of the existence of the order; third,
              [Drake] violated a term or condition of the order by calling
              [C.L.]; four, [C.L.] received a call from [Drake] on or about
              March 15, 2014 . . . .

       Drake argues that the district court’s failure to instruct the jury that a call must be

answered for a violation of the OFP to occur constituted plain error, particularly in light of

the prosecutor’s rebuttal argument. “An error is plain if it was clear or obvious,” and

“[u]sually this is shown if the error contravenes case law, a rule, or a standard of conduct.”

State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). The OFP prohibits

“any contact with [C.L.] whether in person, by telephone, mail or electronic mail or

messaging, through a third party, or by any other means.” Drake cites State v. Phipps, to

support the position that an unanswered call does not constitute contact. 820 N.W.2d 282,

286 (Minn. App. 2012). Phipps is not on point because it involved personal contact, and

there are no Minnesota appellate court cases addressing whether an unanswered phone call

may constitute contact. Accordingly, any error in not instructing the jury that a call must

be answered for a violation of the OFP to occur was not plain.

       Drake has also failed to show that any error affected his substantial rights. “An error

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

of the case.” State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015) (quotations omitted),

cert. denied, 136 S. Ct. 595 (2015). “[T]here must be a reasonable likelihood that the

giving of the instruction in question would have had a significant effect on the verdict of

the jury.” Id. (quotations omitted). This case turned on the jury’s assessment of C.L.’s and



                                             15
Drake’s credibility. Drake claimed that he did not have his phone when the calls were

made to C.L. If the jury credited Drake’s testimony, whether a call was answered would

have been irrelevant because Drake could not have made the call. C.L. testified that she

did not recognize Drake’s number when she received the first call from him and only knew

that it was Drake calling because she answered her phone and recognized his voice. Given

these two versions of events, there is not a reasonable likelihood that instructing the jury

that a call must be answered would have significantly affected the verdict.

       Affirmed.




                                            16
