                        This opinion will be unpublished and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
                                   A15-0152

                                 State of Minnesota,
                                    Respondent,

                                          vs.

                                 Faron Wayne Ruel,
                                     Appellant.

                               Filed February 1, 2016
                                      Affirmed
                                  Klaphake, Judge *

                              Polk County District Court
                               File No. 60-CR-12-2741


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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and

Klaphake, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant challenges his conviction of aiding and abetting third-degree criminal

sexual conduct, arguing that the district court committed reversible error by ruling that if

he testified, he could be impeached with prior convictions of second-degree controlled-

substance crime and criminal vehicular operation. He also argues that the district court

constructively amended the complaint by instructing the jury that it must find that the

complainant was “physically helpless” rather than “mentally incapacitated,” as originally

charged, and he raises additional issues pro se. Because the district court did not abuse its

discretion in its ruling on impeachment evidence, the complaint was not constructively

amended, and appellant’s pro se arguments do not merit relief, we affirm.


                                      DECISION

                                              I

       Ruel challenges the district court’s ruling that his prior convictions of second-degree

controlled-substance crime and criminal vehicular operation would be admissible as

impeachment evidence, should he decide to testify. This court reviews the district court’s

ruling on impeachment by prior conviction for a clear abuse of discretion. State v. Ihnot,

575 N.W.2d 581, 584 (Minn. 1998).

       Under certain circumstances, the state may introduce evidence of prior criminal

convictions “[f]or the purpose of attacking the credibility of a witness.” Minn. R. Evid.

609(a). Evidence of a prior crime that does not involve dishonesty is admissible as



                                              2
impeachment only if the crime was a felony, is not stale, and the probative value of the

evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a), (b). To determine

whether the probative value of Ruel’s prior convictions for impeachment purposes

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

requires the district court to consider:

                (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.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). The district court concluded that four

of the five Jones factors supported admission of the impeachment evidence and that the

other factor—the importance of the defendant’s testimony—was neutral.

       We conclude that the district court did not abuse its discretion by ruling this

evidence admissible. Although Ruel’s prior felony convictions do not involve dishonesty,

they are not stale because they occurred in 2003, fewer than ten years before the current

crime. See Minn. R. Evid. 609(b).          Under current law, the convictions have probative

value, enabling the jury to see the defendant as a “whole person” and better judge his

credibility. State v. Hill, 801 N.W.2d 646, 651-52 (Minn. 2011). Generally, the more

similar the prior conviction to the charged offense, the greater the danger that the jury will

use the evidence for substantive, rather than impeachment, purposes. State v. Lloyd, 345

N.W.2d 240, 247 (Minn. 1984). But neither of Ruel’s prior convictions is similar to the

charged offense.



                                                3
         “A defendant has a constitutional right to present his version of events to a jury.”

State v. Zornes, 831 N.W.2d 609, 628 (Minn. 2013). A district court might exclude

evidence of a conviction, even if relevant, if it determines that its admission for

impeachment would cause the defendant not to testify, and it is more important that the

jury hear the defendant’s version of events. State v. Bettin, 295 N.W.2d 542, 546 (Minn.

1980). Although Ruel elected not to testify, the jury heard his version of events through

the testimony of a police investigator, to whom he denied having sex with the complainant,

and a recorded phone call, in which he told the complainant that nothing had happened

while she was unconscious. If a defendant’s credibility is the central issue in the case, a

greater case can be made for admitting impeachment evidence of prior convictions because

there is a greater need for the evidence. Id. Here, Ruel’s credibility was a central issue

because the state presented evidence that he denied his involvement in the sexual assault,

while an accomplice testified and implicated Ruel as a participant.

       Ruel argues that the erroneous admission of his prior felony convictions unfairly

chilled his constitutional right to testify in his own defense. But to prevail on this argument,

he must show that the district court abused its discretion by ruling that the probative value

of the impeachment evidence outweighed its prejudicial effect.          State v. Gassler, 505

N.W.2d 62, 68 (Minn. 1993). Because we conclude that the district court properly applied

the Jones factors and did not abuse its discretion in admitting the prior-convictions

evidence, we do not separately address this argument.




                                               4
                                             II

       The district court may amend a complaint at any time before verdict “if no additional

or different offense is charged and if the defendant’s substantial rights are not prejudiced.”

Minn. R. Crim. P. 17.05. Rule 17.05 “is intended to protect against confusing the jury,

violating due process notions of timely notice, and adversely affecting the trial tactics of

the defense.” State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997) (quotation omitted).

If the record shows that a defendant is confronted with an additional or a different charge

after trial has begun, that charge amounts to a constructive amendment of the complaint,

and the requirements of Minn. R. Crim. P. 17.05 must be met. Id.

       “A ‘different offense’ is charged if an amendment affects an ‘essential element’ of

the charged offense.” Id. In Guerra, this court held that a complaint was constructively

amended during trial when the state alleged possession of a different type of stolen guns,

on a different date, and found in a different place, than alleged in the original complaint.

Id.; cf. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (approving amendment of the

complaint during trial when it changed only the date of possession of a firearm, which did

not change any essential element of the offense).

         A person commits third-degree criminal sexual conduct if the actor engages in

sexual penetration with another person and “knows or has reason to know that the

complainant is mentally impaired, mentally incapacitated, or physically helpless.” Minn.

Stat. § 609.344, subd. 1(d) (2012).        Ruel argues that the district court erred by

constructively amending the complaint to allege a different offense when it instructed the

jury using the “physically helpless” portion of the statute rather than the “mentally


                                              5
incapacitated” portion, which was originally charged. Compare Minn. Stat. § 609.341,

subd. 7 (2012) (stating that “‘[m]entally incapacitated’ means that a person under the

influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that

person without the person’s agreement, lacks the judgment to give a reasoned consent to

sexual contact or sexual penetration”) with id., subd. 9 (2012) (stating that “‘[p]hysically

helpless’ means that a person is (a) asleep or not conscious, (b) unable to withhold consent

or to withdraw consent because of a physical condition, or (c) unable to communicate

nonconsent and the condition is known or reasonably should have been known to the

actor”).

       We disagree. The relevant statute provides three alternative ways that a defendant

can commit third degree criminal sexual conduct in violation of Minn. Stat. § 609.344,

subd. 1(d).

       Addressing a complainant’s status as either physically helpless or mentally

incapacitated may frequently involve consideration of the same evidence. See State v.

Berrios, 788 N.W.2d 135, 142 (Minn. App. 2010) (holding that the evidence was sufficient

to sustain a conviction of third-degree criminal sexual conduct based on physical

helplessness when the victim was extremely intoxicated and had intermittent periods of

consciousness) review denied (Minn. Nov. 16, 2010); see also State v. Taylor, 365 N.W.2d

368, 368-69 (Minn. App. 1985) (reaching the same result when the complainant woke from

sleep to find the defendant engaging in sexual intercourse with her), review denied (Minn.

June 14, 1985).    Here, the complainant testified that she had been taking an excess of

prescribed medication, was intoxicated, and did not remember the evening’s events.


                                             6
Whether she was “mentally incapacitated” or “physically helpless,” the state was required

to prove the same conduct by the defendant: sexual penetration of a person whom he knew

was unable to give consent. Minn. Stat. § 609.344, subd. 1(d). We therefore conclude

that instructing the jury as to the “physically helpless” option did not affect an essential

element of the charged offense, and the district court’s action did not constructively amend

the complaint. See, e.g., State v. Mesa, 681 N.W.2d 84, 87-88 (S.D. 2004) (holding that in

a criminal-sexual-conduct trial, the court did not constructively amend the complaint by

answering a jury question referring to the victim’s alcohol impairment as mental incapacity

under one statutory subsection, despite a different subsection relating to incapacity due to

an intoxicating agent).

       We further note that even if a constructive amendment had occurred, Ruel has failed

to show that such an amendment prejudiced his substantial rights. See State v. DeVerney,

592 N.W.2d 837, 848 (Minn. 1999) (stating that standard). The jury heard Ruel’s recorded

phone call with the complainant, in which he referred to both her intoxication and her

unconscious condition. And defense counsel informed the district court that, had the

complaint instead recited the “physically helpless” option, his trial strategy would not have

been different.


                                             III

       In a pro se supplemental brief, Ruel argues that the state failed to provide sufficient

additional evidence to corroborate accomplice testimony. See Minn. Stat. § 634.04 (2012)

(prohibiting convictions based on uncorroborated accomplice testimony). Corroborative



                                              7
evidence must “affirm the truth of the accomplice’s testimony and point to the guilt of the

defendant in some substantial degree.” State v. Reed, 737 N.W.2d 572, 584 (Minn. 2007)

(quotation omitted). Here, the state presented sufficient evidence to corroborate the

accomplice’s testimony, including Ruel’s false statements in the recorded phone

conversation that no sexual assault occurred, as well as his admitted association with the

accomplice before, during, and after the crime.

       Ruel argues that use of the recorded phone call violated his Miranda rights and his

right to counsel. But he failed to raise this issue in a timely motion to suppress evidence.

State v. Pederson–Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000). And because he

was not in custody or charged with a crime when he made the statement, he was not entitled

to a Miranda warning and did not have the right to counsel. See State v. Scruggs, 822

N.W.2d 631, 637 (Minn. 2012) (stating that “[a] Miranda warning is required if a suspect

is both in custody and subject to interrogation”); State v. Willis, 559 N.W.2d 693, 697

(Minn. 1997) (stating that the right to counsel “attaches when the state initiates adversary

judicial proceedings against an accused”). Because Ruel was not compelled to speak during

the phone call, his Fifth Amendment right to self-incrimination was not violated. State v.

Borg, 806 N.W.2d 535, 543 (Minn. 2011).

       Ruel also challenges the evidence presented by a Bureau of Criminal Apprehension

(BCA) analyst, who testified that 89.2 percent of the population could be excluded from

being possible contributors to a DNA mixture present in the complainant’s rape-kit perineal

swab, but that the accomplice and Ruel could not be excluded. Because Ruel did not object

to this evidence at trial, we review his claim under a plain-error standard of review, which


                                             8
requires him to demonstrate (1) an error, (2) that the error was plain, and (3) that the error

affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Ruel

argues that the presentation of the DNA evidence prejudiced the jury’s consideration of the

case. But the supreme court has held that a similar argument concerning “the reliability of

evidence of a predominant profile in a mixture of DNA from two or more persons” and the

“use of random match probability” failed on its merits. State v. Hannon, 703 N.W.2d 498,

508-09 (Minn. 2005). Ruel also maintains that because the sperm-cell fraction of the rape-

kit vaginal swab showed a matching profile to the accomplice’s DNA, but not his own, the

DNA evidence improperly led the jury to implicate him in the crime. But no plain error

occurred, and there is no reasonable likelihood that the evidence had a significant effect on

the jury’s verdict because Ruel was convicted of aiding and abetting third degree criminal

sexual conduct. See Griller, 583 N.W.2d at 741 (stating standard for affecting substantial

rights).

       Ruel next argues that the prosecution improperly submitted an investigator’s

testimony based on a recorded statement without introducing the complete statement as

evidence. If a party introduces a portion of a recorded statement, “an adverse party may

require the introduction at that time of any other part . . . which ought in fairness to be

considered. . . .” Minn. R. Evid. 106. But this rule applies only if portions of the actual

recording are introduced in evidence, which did not occur here. See State v. Bauer, 598

N.W.2d 352, 268 (Minn. 1999). We reject Ruel’s unsupported assertion that both the

investigator and an officer who interviewed the complainant committed perjury. See State

v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (stating that inconsistencies between


                                              9
testimony of state’s witnesses “do not constitute false testimony nor any basis for

reversal”). Finally, Ruel has failed to provide factual or legal support for his allegation

that the officers were in collusion with the prosecutor, denying him the right to a fair trial.

       Affirmed.




                                              10
