                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0286

                                  State of Minnesota,
                                     Respondent,

                                             vs.

                                   Kong Pheng Vue,
                                     Appellant.

                                Filed January 17, 2017
                                       Affirmed
                                   Schellhas, Judge

                             Ramsey County District Court
                               File No. 62-CR-15-4355

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

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

      Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Ross, Judge.

                       UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges his convictions for possession of a firearm by an ineligible

person and motor-vehicle theft. We affirm.
                                         FACTS

       At around 6:00 p.m., on June 11, 2015, J.W. parked his Jeep outside his garage at

his Shoreview home, left his key in it, and went into his home. While talking to his wife in

his kitchen, J.W. noticed an Asian man walk through his backyard toward the garage. The

man had long hair and glasses and was carrying a backpack. J.W. left the house to

investigate, but before he could confront the man, the man got into J.W.’s Jeep. J.W.

returned to his home and called 911. While speaking to the dispatcher, J.W. watched the

man back the Jeep down his driveway and head north on Reiland Lane, which is a dead

end.

       Shortly after 6:00 p.m., about a quarter mile down the road from J.W.’s home, C.V.

was parked in his driveway, talking on his cellphone, when a Jeep pulled up behind him,

turned around, and parked about 50 feet away. The driver, an Asian man with long hair and

glasses, exited the Jeep and began walking along the side of C.V.’s house toward a nearby

lake. C.V. approached the man and asked him if he needed help. The man replied that he

was going fishing. C.V. noticed that the man was carrying a backpack but not a fishing

pole. C.V. informed the man that he was on private property and could not fish there. The

man continued walking into C.V.’s backyard.

       Intending to call the police, C.V. walked to the front of his home where he

encountered Ramsey County Sheriff’s Deputy Jacob French, who informed him that the

Jeep was stolen. C.V. pointed the deputy in the direction of the man who had exited the

Jeep. Additional deputies arrived and began searching the area. Behind C.V.’s home, the

deputies located an Asian man carrying a backpack and a shoulder bag. Deputy French saw


                                             2
the man throw the backpack about ten feet and then sit down on a patio chair. The deputies

apprehended the man and searched him. The shoulder bag contained a Wisconsin

identification card for Kong Pheng Vue. The backpack contained a .380-caliber handgun

wrapped in a gray T-shirt and several pieces of mail with Vue’s name, including a

cellphone bill. The deputies brought Vue to the front of C.V.’s home, where C.V. identified

him as the man he had encountered earlier. Deputies also summoned J.W. to the scene,

where he identified Vue as the man who took his Jeep.

       The state charged Vue with one count of possession of a firearm by an ineligible

person and one count of motor-vehicle theft. At trial, Vue stipulated that he was ineligible

to possess a firearm, and the district court ruled that, if Vue testified in his own behalf, the

state could impeach him with two Wisconsin felony drug convictions from 2010, but only

as unspecified convictions. During direct-examination, Vue’s counsel asked him about his

criminal record, and Vue responded that he was a “felon in Wisconsin.” He also testified

that he wandered onto C.V.’s property, while walking along the shoreline at a nearby park,

and he denied stealing the Jeep and possessing the handgun. On cross-examination, Vue

admitted to possessing the backpack but then quickly said that he could not recall whether

he brought it with him. He could not explain the handgun found in the backpack. A jury

found Vue guilty of both counts.

       This appeal follows.




                                               3
                                       DECISION

                                               I

       Vue argues that the district court erred by admitting evidence of his prior felonies

because it did not adequately consider and weigh the Jones factors on the record. This court

reviews a district court’s ruling on the impeachment of a witness by prior conviction for an

abuse of discretion. State v. Hill, 801 N.W.2d 646, 651 (Minn. 2011). A district court may

admit evidence of a defendant’s prior felony convictions for impeachment if “the probative

value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1).

In determining whether the probative value of a conviction outweighs its prejudicial effect,

the district court must 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 supreme court has held that the district court should analyze on the record

whether the Jones factors support admission of the witness’s prior convictions. State v.

Swanson, 707 N.W.2d 645, 655 (Minn. 2006). Vue is correct that the district court’s

analysis here is somewhat lacking. Although the court recited the Jones factors, its analysis

appears limited to recognizing that Vue’s drug convictions were “relatively fresh” and that

“he’s not charged with a drug offense in this particular case.” But even if the district court

failed to adequately consider the factors on the record, the error is harmless if the conviction



                                               4
could have been admitted after a proper analysis of the Jones factors. Swanson, 707

N.W.2d at 655–56.

Impeachment Value

       Vue argues that his prior drug convictions have no impeachment value because they

do not directly relate to truthfulness. In support of his argument, he cites opinions from this

court questioning the value of drug convictions for impeaching a witness’s veracity. See,

e.g., State v. Norregaard, 380 N.W.2d 549, 554 (Minn. App. 1986) (stating that “using

prior drug convictions . . . to impeach an accused is not favored” because “[t]his type of

conviction does not directly relate to an accused’s truthfulness and honesty”), aff’d as

modified, 384 N.W.2d 449 (Minn. 1986). But the supreme court has made clear that “it is

the general lack of respect for the law, rather than the specific nature of the conviction, that

informs the fact-finder about a witness’s credibility” and “any felony conviction is

probative of a witness’s credibility, and the mere fact that a witness is a convicted felon

holds impeachment value.” Hill, 801 N.W.2d at 652. Vue’s felony drug convictions have

impeachment value, and this factor supports admission.

Date of Conviction and Subsequent History

       Both of Vue’s drug convictions occurred in 2010 and were within ten years of the

charged crimes. See Minn. R. Evid. 609(b). Vue concedes that this factor supports

admission.

Similarity of Prior Conviction with Charged Crime

       If a prior conviction is similar to a charged crime, a danger arises that the jury will

use the prior-conviction evidence substantively rather than for impeachment. State v.


                                               5
Bettin, 295 N.W.2d 542, 546 (Minn. 1980). In other words, “The more similar the alleged

offense and the crime underlying a past conviction, the more likely it is that the conviction

is more prejudicial than probative.” Swanson, 707 N.W.2d at 655 (citation omitted).

       Although Vue concedes that the drug convictions are not similar to the charged

offenses, he nevertheless maintains that this factor weighs against admission because the

convictions were not specified. Vue argues that because the jurors were not told the

convictions were for drug crimes, they were free to speculate that the convictions were

similar to the charged offenses. The supreme court has stated that “the decision about what

details, if any, to disclose about the conviction at the time of impeachment is a decision

that remains within the sound discretion of the district court.” Hill, 801 N.W.2d at 652.

And because an unspecified conviction is not clearly similar to the charged offenses—

which is the specific danger that this factor is designed to address—this factor weighs in

favor of admission. Cf. State v. Griffin, 846 N.W.2d 93, 104 (Minn. App. 2014) (rejecting

claim that district court’s admission of “evidence of an unspecified felony, along with two

other identified felonies, allowed the jury to ‘assume the worst’ regarding the nature of the

unspecified conviction”), review denied (Minn. Aug. 5, 2014).

Importance of Defendant’s Testimony and Centrality of Credibility Issue

       Minnesota caselaw recognizes that “[i]f credibility is a central issue in the case, the

fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”

Swanson, 707 N.W.2d at 655. Vue argues that, while his credibility was important, it was

not central to the case. In support of his position he cites State v. Bettin, in which the

supreme court noted that credibility is central to the case “if the issue for the jury narrows


                                              6
to a choice between defendant’s credibility and that of one other person.” 295 N.W.2d at

546. Vue reads the Bettin court’s statement literally to conclude that his credibility was not

central because his testimony contradicted multiple other witnesses, not just one person.

But nothing in Bettin or logic supports Vue’s conclusion. And caselaw shows that the fifth

Jones factor has not been applied so narrowly. See, e.g., State v. Williams, 771 N.W.2d

514, 520 (Minn. 2009) (finding district court did not abuse its discretion when applying the

fifth factor because “the identity of the perpetrator was a central issue at trial in which

appellant’s testimony would have contradicted the other witnesses” (emphasis added));

State v. Pendleton, 725 N.W.2d 717, 729 (Minn. 2007) (finding credibility issue to be

critical because defendant’s “‘wrong place, wrong time’ defense contradict[ed] the

consistent story of the state’s witnesses” (emphasis added)); Swanson, 707 N.W.2d at 655–

56 (concluding that credibility was a central issue because “[t]he jury had to determine

whether to believe Swanson or to believe House and Hansen”).

       Vue denied stealing the Jeep and possessing the handgun. His defense depended on

the jury believing his testimony over the state’s witnesses, making his credibility the central

issue of the case. The fourth and fifth Jones factors therefore support admission. Because

all of the Jones factors weigh in favor of admission, the district court did not abuse its

discretion by admitting evidence of Vue’s prior drug convictions.

                                              II

       Vue suggests that the district court erred by not sua sponte instructing the jury about

the proper use of the impeachment evidence immediately after it was introduced. Because

Vue did not object to the lack of a contemporaneous instruction, our review is limited to


                                              7
plain error. State v. Kuhlmann, 806 N.W.2d 844, 852 (Minn. 2011). The plain-error

standard requires the defendant to show: (1) an error; (2) that is plain; and (3) that affected

his substantial rights. State v. Matthews, 779 N.W.2d 543, 548 (Minn. 2010). “An error is

plain if it is clear and obvious; usually this means an error that violates or contradicts case

law, a rule, or an applicable standard of conduct.” Id. at 549. To affect the defendant’s

substantial rights, the error must be prejudicial and affect the outcome of the case.

Kuhlmann, 806 N.W.2d at 853.

       The supreme court has held that a district court does not plainly err by not giving a

limiting instruction sua sponte when prior-conviction evidence is admitted for

impeachment. State v. Taylor, 869 N.W.2d 1, 18 (Minn. 2015). Vue therefore is not entitled

to relief because the district court did not give a limiting instruction sua sponte when the

prior-conviction evidence was admitted.

       Vue also faults the district court for the language of its final cautionary instruction

to the jury—that it could “consider whether the kind of crime committed indicates the

likelihood that the witness is telling or not telling the truth.” Because Vue did not object to

the instruction, the plain-error standard applies. Matthews, 779 N.W.2d at 548. “While

district courts have broad discretion to formulate appropriate jury instructions, a district

court abuses its discretion if the jury instructions confuse, mislead, or materially misstate

the law.” Taylor, 869 N.W.2d at 14–15 (quotation omitted). Vue is correct that this aspect

of the instruction was illogical given that the convictions were unspecified. But Vue fails

to meet his heavy burden of proving that any error affected his substantial rights. State v.

Wenthe, 865 N.W.2d 293, 299 (Minn. 2015), cert. denied, 136 S. Ct. 595 (2015). Neither


                                              8
party objected to the instruction at trial, nor did the jury express any confusion regarding

the instruction. Given the strength of the evidence against Vue, we conclude that no

reasonable likelihood exists that a more accurate instruction would have changed the

verdict. State v. Gutierrez, 667 N.W.2d 426, 434 (Minn. 2003).

       Affirmed.




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