State v. Schwab

409 N.W.2d 876, 1987 Minn. App. LEXIS 4595

Opinions

OPINION

FOLEY, Judge.

A jury convicted appellant Floyd H. Schwab of one count of criminal sexual conduct in the second degree, in violation of Minn.Stat. § 609.343, subds. 1(a) and 2 (Supp.1985). We affirm.¹

FACTS

In January 1986, Schwab moved into the home of his girlfriend, Beverly Olson. Olson lived there with her two sons, K.O., age 17 and L.O., age five. Schwab occasionally babysat L.O.

On February 14, 1986, Olson’s sister, Paula Mooney, was babysitting L.O. so Olson and Schwab could go out to dinner. While L.O. was playing with his cousins, A.M., age 10, and R.M., age seven, he told them that he and Schwab had played the “pee-pee rub” game. A.M. yelled for her mother to come and listen to what L.O. was saying. Mooney testified that she questioned L.O. as follows:

I asked him, I said, did — “Was Floyd giving you a bath and just rubbed it?” And he said, “No.” And I said, “Well, what happened then?” He said, “He just pulled my pants down and rubbed my pee-pee.”

Mooney immediately called her sister and told her what L.O. had said.

After receiving her sister’s phone call, Olson did not confront Schwab. She went out for dinner with him as planned and later they slept together. L.O. stayed overnight with Mooney. The next day, Olson questioned L.O. about the “pee-pee rub” game. Olson then confronted Schwab and told him to move out of her house. She also contacted the Hennepin County Child Protection Department.

On April 1, 1986, Lieutenant Dennis Weiss of the Minneapolis Police Department’s Family Violence Unit contacted Schwab, told him that he was a suspect in the L.O. case and requested that he come in to discuss it. At Weiss’ office, Schwab was advised of his rights and told that he would not be arrested on that date. During the conversation with Weiss, Schwab said, “Well, it did happen, but I didn’t pee on [L.O.].” Schwab was arrested on April 16, 1986.

At the omnibus hearing, Schwab moved to suppress the statements he made to Weiss. The trial court denied the motion and ruled that if Schwab testified, his statements to Weiss and his 1985 conviction for second-degree intrafamilial sexual abuse would be admissible for impeachment purposes.

At trial, the court found that five-year-old L.O. was competent to testify. During L.O.’s testimony, he made several remarks that he did not want Schwab to see him and that Schwab was staring at him. When L.O. was asked about how to play the “pee-pee rub” game he played with Schwab, L.O. testified: “You know, your pee-pee, you rub it, he pulled down his pants, he pulled down my pants and rub it together.” L.O. also demonstrated the game with anatomically correct male dolls. L.O. identified the dolls as Schwab ,and himself, undressed the dolls and rubbed their genital areas together. Finally, L.O. testified that Schwab told him not to tell anyone about the “pee-pee rub” game. Olson testified that when she confronted Schwab, he hung his head, kind of started to cry and said he could not help himself.

Schwab did not testify at trial. Instead, Schwab presented two witnesses. Curt Ba-zoff, Schwab’s brother, testified that Schwab moved out of Olson’s house the last week in January 1986 and lived next door to him. Becky Bungert, Schwab’s new girlfriend, testified that she spent time with Schwab every day since the third week in January 1986, that Schwab was living with Roscoe Benson next door to Curt Bazoff at the end of January 1986, and that Schwab was with her on February 14, 1986.

On rebuttal, the State called Etta Tyson, Olson’s neighbor. Tyson testified that Schwab was living with Olson until February 15 or 16,1986. The jury found Schwab guilty of criminal sexual conduct in the second degree.

ISSUES

1. Did the trial court err by ruling that Schwab’s prior felony conviction for second-degree intrafamilial sexual abuse could be used for impeachment purposes if he testified?

2. Was the evidence sufficient to sustain Schwab’s conviction?

3. Did Schwab receive effective assistance of counsel?

ANALYSIS

1. At the omnibus hearing, the trial court ruled that if Schwab testified, his 1985 felony conviction for second-degree intrafamilial sexual abuse would be admissible for impeachment purposes. Schwab argues that the trial court’s ruling unnecessarily chilled his right to testify on his own behalf.

Admissibility of prior convictions for impeachment purposes is governed by Minn. R.Evid. 609, which provides in part:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect * * *

It is well established that it is "within the trial court’s discretion to determine whether the probative value of the conviction outweighs its prejudicial effect. State v. Amos, 347 N.W.2d 498, 502 (Minn.1984). The trial court’s decision will not be overturned absent a clear abuse of discretion. Id.

The Minnesota Supreme Court requires the trial court to consider five factors when determining whether to admit evidence of a prior conviction for impeachment purposes:' (1) the impeachment value of the prior crime; (2) the date of the conviction and defendant’s subsequent history; (3) the similarity of the prior conviction with the present crime; (4) the importance of defendant’s testimony; and (5) the importance of the credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn.1978).

The impeachment value of the prior crime.

Schwab’s prior conviction has legitimate impeachment value because it would “allow the jury to see ‘the whole person’ and therefore permit the jury to better judge the truth of the defendant’s statements.” State v. Ford, 381 N.W.2d 30, 32-33 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. March 27, 1986).

The date of the conviction and defendant's subsequent history.

Schwab’s conviction was only one year old.

Similarity of the prior conviction with the present crime.

Schwab argues that his prior conviction should not have been admissible for impeachment purposes because the prior conviction was for substantially the same conduct for which he is now on trial and because the inevitable tendency is for jurors to believe “ ‘if he did it before he probably did so this time.’ ” Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). It is Schwab’s position that if his prior conviction for second-degree intrafamilial sexual abuse would have been admitted, he would have been portrayed to the jury as a chronic sexual abuser and the actual issues before the jury would have been irredeemably clouded. We disagree.

The Minnesota Supreme Court, in State v. Brouillette, 286 N.W.2d 702 (Minn.1979), has held that prior convictions involving criminal sexual activity are admissible in a trial where the defendant is charged with a similar offense. In Brouillette, the defendant was charged with fourth-degree criminal sexual conduct. The supreme court affirmed the trial court’s ruling that if the defendant chose to testify, his prior convictions for third-degree criminal sexual conduct would be admissible for impeachment purposes. Id. at 707-08. See also State v. Bettin, 295 N.W.2d 542, 546 (Minn.1980) (where defendant was charged with third-degree criminal sexual conduct, his prior aggravated rape conviction was admissible for impeachment purposes). See State v. Crocker, 409 N.W.2d 840 (Minn.1987). Here, we find no abuse of discretion.

The importance of defendant’s testimony.

Schwab’s version of the case was presented to the jury through his own witnesses. Schwab “made no offer of proof to show what, if anything, more he would testify about that was not already before the jury.” State v. Lloyd, 345 N.W.2d 240, 246 (Minn.1984).

Importance of the credibility issue.

Had Schwab testified, the jury would have had to choose between the credibility of L.O.’s testimony and Schwab’s testimony.

[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.

Bettin, 295 N.W.2d at 546.

Based on the foregoing Jones analysis, we find that the trial court did not abuse its discretion by ruling that evidence of Schwab’s prior conviction would be admissible for impeachment purposes if he testified.

2. Appellate court review of claims of insufficiency of the evidence is very limited. We must view the evidence most favorably to the state and assume the jury believed the state’s witnesses and disbelieved any contradictory evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978).

Schwab argues that the State has failed to prove beyond a reasonable doubt that he is guilty of second-degree criminal sexual conduct. L.O. testified that Schwab pulled down his pants and L.O.’s pants and rubbed his penis against L.O.’s penis. L.O.’s testimony alone is sufficient to support Schwab’s conviction. A sexual assault complainant’s testimony need not be corroborated. Minn.Stat. § 609.347, subd. 1 (1984). See also State v. Beard, 380 N.W.2d 537, 541 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Mar. 3, 1986) (sexual assault complainant’s testimony taken as a whole was consistent and credible). “[I]t is the exclusive function of the jury to weigh the credibility of witnesses.” State v. Blair, 402 N.W.2d 154, 158 (Minn.Ct.App.1987). The jury is entitled to believe the victim’s account of the events. State v. Trotter, 354 N.W.2d 539, 541 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. Dec. 20, 1984).

Our review of the record reveals that the jury could have reasonably believed L.O.’s account of the events and found Schwab guilty. Therefore, Schwab’s claim of insufficiency of the evidence is without merit.

3. Schwab personally asserts ineffective assistance of counsel. Schwab contends that his attorney did not have a full understanding of the facts of his case because his attorney failed to have Benson (the man he was allegedly living with at the time of the offense) testify for the defense, failed to cross-examine Olson as to her feelings about Schwab’s relationship with his new girlfriend Bungert and failed to make a motion in limine to restrict Olson's testimony.

In State v. Cermak, 350 N.W.2d 328 (Minn.1984), the Minnesota Supreme Court stated “an appeal from a conviction is not the most appropriate way to raise issues of trial counsel’s ineffective representation.” Id. at 332 n. 5. The issue of ineffective assistance of counsel should be addressed in a post-conviction proceeding. State v. Wenberg, 357 N.W.2d 355, 356 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. Feb. 6, 1985).

Schwab argues that a post-conviction proceeding is not a condition precedent for appellate court review because the only purpose it would serve is to deny him an expeditious review of his claim. In State v. Tuomi, 396 N.W.2d 847, 852 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Jan, 21, 1987), we held that while a direct appeal is not the most appropriate method for raising the issue of ineffective assistance of counsel, we would consider the claim.

To reverse a conviction based on ineffective assistance of counsel, Schwab must show that counsel’s performance was deficient as measured by an objective standard of reasonableness under prevailing professional norms and that the deficient performance prejudiced the defense. Marshall v. State, 395 N.W.2d 362, 367 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Dec. 17, 1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We find that the record does not support Schwab’s claim of ineffective assistance of counsel.

DECISION

Affirmed.

1 . Recently, this court considered Schwab's sentencing appeal following a probation revocation hearing and held that the trial court did not abuse its discretion in sentencing Schwab to consecutive terms after revoking a stay of imposition. See State v. Schwab, 404 N.W.2d 284 (Minn.Ct.App.1987).