                          This opinion will be unpublished and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
                                     A15-1732

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Cass Howard Ellingboe,
                                       Appellant

                                Filed December 5, 2016
                   Affirmed in part, reversed in part, and remanded
                                     Reyes, Judge

                         Yellow Medicine County District Court
                                 File No. 87CR15193

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Keith Helgeson, Yellow Medicine County Attorney, Granite Falls, Minnesota (for
respondent)

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

         Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes,

Judge.
                         UNPUBLISHED OPINION

REYES, Judge

       Appellant argues that the district court erred when it admitted two of his prior

burglary convictions for impeachment purposes and convicted him of both third-degree

assault and felony fifth-degree assault. Because we conclude that the district court was

well within its discretion in admitting these convictions for impeachment purposes but

that felony fifth-degree assault is a lesser included offense of third-degree assault, we

affirm in part, reverse in part, and remand.

                                          FACTS

       In the morning hours of March 11, 2015, J.B. went to D.B.’s home in Granite

Falls, Minnesota to house-sit. When J.B. arrived at D.B.’s home, inside he found three

individuals, B.B., G.B., and R.L., who did not live there. J.B. did not mind having B.B.

and G.B. there, but he did not want R.L. there. He asked R.L. to leave, but R.L. refused.

J.B. then walked over to appellant Cass Ellingboe’s home to speak with appellant and

H.N. about the issue.

       Afterward, J.B., appellant, H.N., and another friend, S.H., all drove over to D.B.’s

home. Appellant, S.H., and H.N. entered the home while J.B. remained in appellant’s

car. B.B., G.B., and R.L. were still inside the home. Also inside the home was A.S.,

B.B.’s mother. Shortly after arriving, appellant engaged in a physical altercation with

G.B. Appellant punched G.B. in the face, threw him against a chair, placed him in a

chokehold while he was on the ground, and repeatedly kicked and punched his head and

body. Appellant then left D.B.’s home and drove away in his car.


                                               2
       As a result of this altercation, G.B. incurred serious injuries, including two broken

bones in his nose, abrasions, and significant bruising to his neck, face, and head. He

initially received medical treatment at a local hospital, but his injuries were so severe that

he had to be airlifted to Hennepin County Medical Center.

       Appellant was eventually charged with third-degree assault in violation of Minn.

Stat. § 609.223, subd. 1 (2014), and felony fifth-degree assault in violation of Minn. Stat.

609.224, subd. 4(b). The district court held a pre-trial hearing on the state’s motion to

allow impeachment of appellant with ten of his prior felony convictions if he chose to

testify. After considering the Jones factors discussed in State v. Hill, 801 N.W.2d 646,

653 (Minn. 2011), the district court issued an order allowing appellant to be impeached

with evidence that he had an unspecified felony conviction from 2013,1 a third-degree

burglary conviction from 2010,2 and either an aiding and abetting first-degree burglary

conviction or a third-degree burglary conviction, that were both from 2007.

       During the jury trial, appellant took the stand and testified that he was acting in

self-defense when he engaged in the physical altercation with G.B. Appellant testified

that he entered the house, walked through the living room where he saw “random” man

and A.S. sitting on the couch, and went to the kitchen because he thought the “crazy


1
  Appellant’s conviction was for violation of a no-contact order on July 9, 2013. The
district court allowed this conviction in as an unspecified felony because this conviction
was based on an underlying assault case, making the specifics of this conviction too
prejudicial for the jury to hear.
2
  Appellant had two third-degree burglary convictions from July 26, 2010: (1) A third-
degree burglary conviction from Yellow Medicine County and (2) a third-degree burglary
conviction from Chippewa County. The district court ruled that only one of these
convictions was admissible for impeachment purposes.

                                              3
guy,” referring to R.L., was in the kitchen. When appellant returned to the living room,

he realized that the “random” man in there was G.B. Appellant testified that he asked

him, “You’re [G.B.], right?” At that point, G.B. looked at him, and appellant then said,

“You’re the one that molested my little sister, right?” Appellant testified that he then

stepped towards G.B. with his hands out while saying “You’re a child molester and

rapist,” at which point G.B. threw multiple punches at appellant.

       During direct examination, appellant’s attorney asked him about his prior

convictions, and appellant admitted to being convicted of each one of them. Immediately

following these admissions, the district court issued a curative instruction directing the

jury to consider these convictions for impeachment purposes only. On cross-

examination, the state briefly asked appellant whether the convictions were all felony

convictions, and he admitted that they were. The district court repeated the curative

instructions at the end of the trial. The state made no mention of appellant’s prior

convictions in closing arguments. The jury found appellant guilty of both third-degree

assault and felony fifth-degree assault.

       On July 28, 2015, the district court judge convicted appellant of third-degree

assault and felony fifth-degree assault. However, appellant was only sentenced to 33

months in prison on the third-degree-assault count. This appeal follows.




                                              4
                                       DECISION

I.     The district court did not abuse its discretion by allowing appellant to be
       impeached by his prior burglary convictions.

       Appellant first argues that the district court abused its discretion by allowing his

impeachment at trial through the two prior burglary convictions, which appellant argues

prejudiced the jury. We disagree.

       We review a district court’s admission of evidence regarding a defendant’s prior

convictions for an abuse of discretion. State v. Williams, 771 N.W.2d 514, 518 (Minn.

2009). “Under an abuse-of-discretion standard, [appellate courts] may reverse the district

court when the district court’s ruling is based on an erroneous view of the law or is

against logic and the facts in the record.” State v. Bustos, 861 N.W.2d 655, 666, (Minn.

2015). If appellant meets his burden of demonstrating an abuse of discretion, he must

also show that he was prejudiced by the error. Id. (quotation omitted).

       Evidence of a defendant’s prior conviction “is not admissible to prove the

character of [the defendant] in order to show action in conformity therewith.” See Minn.

R. Evid. 404(b). But such evidence may be admissible to attack the credibility of his

testimony, provided that (1) the conviction is from ten or fewer years ago and (2) the

probative value of such conviction outweighs any potential prejudicial effect. See Minn.

R. Evid. 609(b). It is undisputed that both of appellant’s burglary convictions were less

than ten years old at the time of his trial.

       “[W]hether the probative value of the [prior] convictions outweighs their

prejudicial effect is a matter left to the discretion of the trial court.” State v. Graham, 371



                                               5
N.W.2d 204, 208 (Minn. 1985). In making this determination, a district court is guided

by the following five Jones 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 the defendant’s testimony,

and (5) the centrality of the credibility issue.” State v. Jones, 271 N.W.2d 534, 538

(Minn. 1978). Appellant challenges only the third Jones factor on appeal.

       Appellant argues that the district court erred because the charged crime, which

involved an assault inside of a home, is too similar to his two prior burglary convictions.

In evaluating the third factor, the district court found that each of appellant’s burglary

convictions were “a dissimilar crime to the one currently charged. This dissimilarity

means a jury would be less prone to improperly use evidence of the past conviction to

prove conformity therewith.”

       In State v. Flemino, 721 N.W.2d 326, 329 (Minn. App. 2006), the defendant

argued that a prior burglary conviction was too similar to an aggravated-robbery charge

because they both involved entering a residence and committing a crime therein. In

holding that they were sufficiently dissimilar crimes, this court stated, “[B]urglary

involves nonconsensual entries or the withdrawal of consent. The entry here was

consensual and was followed by a crime not similar in name or fact to burglary.” Id.

       Just as in Flemino, the only similarity between appellant’s prior burglary

convictions and the current assault are that the crimes occurred inside a home. Beyond

that, appellant’s prior burglary convictions are not similar to the current assault “in name

or in fact.” Id. His prior burglary convictions involved nonconsensual entry into a home.


                                              6
In the current assault case, appellant entered another’s home consensually. Further,

burglary convictions do not require assault or bodily harm to another. Here, appellant

was charged with assaulting another and inflicting substantial bodily harm. Moreover,

burglary is a property crime whereas assault is a crime against a person. We conclude

that appellant’s prior burglary convictions are sufficiently dissimilar to the charged crime.

       The district court thoroughly evaluated all of the Jones factors and did not abuse

its discretion by determining that appellant’s burglary convictions were admissible for

impeachment purposes because their probative value outweighed any prejudicial effect

they may have had.

       Appellant next argues that the admission of his prior burglary convictions

amounted to reversible error because it was highly prejudicial. As discussed above, the

admission of appellant’s prior burglary convictions was not an abuse of discretion.

Nonetheless, even if we were to assume error, appellant’s argument fails.

       “The erroneous admission of [other-crimes’] evidence is harmless unless it

substantially influenced the verdict.” State v. Campbell, 861 N.W.2d 95, 102 (Minn.

2015); see also Minn. R. Crim. P. 31.01 (providing that “[a]ny error that does not affect

substantial rights must be disregarded”). Appellant “bears the ‘heavy burden’ of showing

that there is a reasonable likelihood that the alleged error substantially affected the

verdict.” Campbell, 861 N.W.2d at 101 (quoting State v. Rosenberg, 851 N.W.2d 609,

618 (Minn. 2014). Relevant to the harmless-error inquiry are factors such as “whether

the trial court provided the jurors a cautionary instruction and whether the evidence was




                                              7
central to the State’s case.” Id. at 102. “[The supreme court] ha[s] also considered the

existence of overwhelming evidence of guilt.” Id.

       Here, the district court gave a cautionary instruction after appellant’s attorney

asked him about his prior convictions. The district court gave another cautionary

instruction at the end of the trial. The jury is presumed to have followed these

instructions. See id. at 103. Moreover, the jury was presented with substantial evidence

that appellant committed third-degree assault. The state introduced testimony from the

victim, G.B., who testified in detail about appellant assaulting him and causing him

substantial injuries. The injuries and the cause of them were corroborated by the

emergency-room doctor, who testified that the injuries were consistent with someone

being choked around the neck and repeatedly struck in the face. Additionally, B.B.’s and

A.S.’s testimony corroborated G.B.’s account of the assault.

       Finally, the prosecutor did not refer to any of the burglary convictions or any other

prior conviction during closing arguments. See id. at 101 (finding extent to which

prosecutor relied on evidence during closing arguments is important factor.). This record

leads to a conclusion that the prior convictions, which were admitted for the purpose of

impeaching appellant, did not substantially influence the verdict. Thus, any alleged error

was harmless.

II.    Felony fifth-degree assault is a lesser included offense of third-degree assault.

       Appellant further argues that the district court erred in entering judgment of

conviction for both third-degree assault and felony fifth-degree assault. We agree.




                                              8
       Both parties agree, as do we, that it was impermissible for appellant to be

convicted of both third-degree assault and felony fifth-degree assault. Whether an

offense is a lesser included offense of the charged offense is a legal question that we

review de novo. See State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).

       “[A]n actor may not be convicted of both the crime charged and “[a] lesser degree

of the same crime.” Minn. Stat. § 609.04, subd. 1(1) (2014). A conviction under this

statute is the district court’s formal adjudication of the verdict through the filing of the

official judgment of conviction. See State v. Pflepson, 590 N.W.2d 759, 767 (Minn.

1999). An included offense could be “[a] lesser degree of the same crime” or “[a] crime

necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4). “An offense is

necessarily included in a greater offense if it is impossible to commit the greater offense

without committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn.

2006) (quotation omitted). “To determine whether an offense is an included offense

falling under [section 609.04], a court examines the elements of the offense instead of the

facts of the particular case.” State v. Mitchell, 881 N.W.2d 558, 562 (Minn. App. 2016)

(quotation omitted), review denied (Minn. Aug. 23, 2016).

       Appellant was convicted of felony fifth-degree assault, which has one more

element than third-degree assault, and enhances simple misdemeanor fifth-degree assault

into a felony. A reading of the statute for both offenses demonstrates that it is possible to

prove third-degree assault without first establishing all of the elements of felony fifth-

degree assault. But our inquiry does not end there. “[T]he fact that the lesser offense is

not necessarily proved by proof of the commission of the greater offense does not mean


                                               9
that the lesser offense is not an included offense under section 609.04.” State v. Hackler,

532 N.W.2d 559, 559 (Minn. 1995). An offense that constitutes a lesser degree of the

same crime is an included offense as is “a lesser degree of a multi-tier statutory scheme

dealing with a particular subject.” Id. Here, felony fifth-degree assault is a lesser degree

of third-degree assault, and it is also part of the same multi-tier statutory assault scheme.

Consequently, felony fifth-degree assault is an included offense of third-degree assault

under section 609.04.

       We affirm the district court’s determination to allow admission of appellant’s prior

burglary convictions, and we reverse appellant’s felony fifth-degree assault conviction

and remand to the district court for its vacation. See State v. Crockson, 854 N.W.2d 244,

248 (Minn. App. 2014) (stating that when proper procedure is not followed, remedy is to

remand case for district court to vacate one of the convictions), review denied (Minn.

Dec. 16, 2014).

       Affirmed in part, reversed in part, and remanded.




                                             10
