State v. Hankerson, No. A03-131 (Minn. App. 4/13/2004), No. A03-131.
| Decision Date | 13 April 2004 |
| Docket Number | No. A03-131. |
| Parties | State of Minnesota, Respondent, v. Dena Lyn Hankerson, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Goodhue County, File No. K3-02-1092.
Stephen Betcher, Goodhue County Attorney, Goodhue County Justice Center.
Mike Hatch, Attorney General, Steven L. Schleicher, Assistant Attorney General, (for respondent).
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant).
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.
UNPUBLISHED OPINION
Appellant Dena Lyn Hankerson challenges her conviction and sentence for first-degree burglary, terroristic threats, and first-degree criminal sexual conduct. She argues that the prosecutor committed prejudicial misconduct in closing arguments by (1) injecting her personal opinion that children do not lie; (2) vouching for the victim's credibility; and (3) diluting the beyond-a-reasonable doubt standard by arguing that the jury could find appellant guilty if they believed the victim. Appellant also contends that the district court abused its discretion by ruling that appellant's 1995 conviction for terroristic threats was admissible for impeachment purposes. Finally, appellant argues that because the terroristic threats were made to facilitate the sexual acts, they were part of the same behavioral incident, and a separate sentence cannot be imposed.
Because appellant failed to object to the prosecutor's closing argument at trial and failed to show that she was prejudiced by the prosecutor's conduct, and because the decision to admit appellant's 1995 conviction for terroristic threats was within the district court's discretion, we affirm on these issues. But because the terroristic threats were made to facilitate the sexual acts and were therefore part of the same behavioral incident, and because the multiple-victim exception does not apply to this case, we reverse and vacate appellant's sentence for terroristic threats.
Appellant argues that a new trial is warranted because the prosecutor committed prejudicial misconduct by vouching for the victim's credibility during closing arguments. Appellant, however, failed to object to the prosecutor's closing argument at trial. A defendant who fails to object to the prosecutor's closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). This court may reverse a conviction despite the defendant's failure to object or seek cautionary instructions "if the prosecutor's comments were unduly prejudicial." State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). The test is whether any inappropriate comments "likely played a substantial part in influencing the jury to convict." State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).
In closing arguments, the prosecutor here asserted that children tend to be blatantly honest because they have fewer life experiences than adults and have fewer motivations to lie. The prosecutor explained that when children do lie, they usually do so to keep themselves out of trouble. Applying that rationale to the case, the prosecutor implied that the victim was credible because she had no motive to lie about the sexual assault.
Appellant contends that by "vouching" for the victim's credibility and by telling the jury that they could convict if they believed the victim, the prosecutor diluted the standard of proof, thereby depriving appellant of a fair trial. Appellant must show that the inappropriate comments likely played a substantial part in influencing the jury to convict. See Parker, 417 N.W.2d at 647. Because there was a substantial amount of evidence supporting the victim's testimony, and because the district court gave the standard jury instructions, which state the factors a jury may consider when judging the credibility of the witnesses, we cannot conclude that any inappropriate comments by the prosecutor likely played a substantial part in influencing the jury to convict.
Appellant contends that she was denied a fair trial because the district court improperly allowed her to be impeached with a prior conviction for terroristic threats. A district court's evidentiary rulings are reviewed under an abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the district court, which will not be reviewed absent a clear abuse of discretion. State v. Graham, 371 N.W.2d 204, 208-09 (Minn. 1985).
When evaluating the probative value and prejudicial effect of a proffered crime that does not involve dishonesty or false statement, the district court must consider 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 (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, 537-38 (Minn. 1978).
Here, a review of these factors supports the district court's decision to admit the prior conviction for terroristic threats. Appellant's prior conviction was useful for impeachment purposes because it assisted the jury in weighing appellant's credibility. See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (...
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