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State v. Al Burr

Court of Appeals of Minnesota

December 16, 2013

State of Minnesota, Respondent,
v.
James Al Burr, Appellant.

UNPUBLISHED OPINION

St. Louis County District Court File No. 69DU-CR-12-1566

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Smith, Judge; and Minge, Judge.

MINGE, Judge [*]

Appellant challenges his conviction of and sentencing for felony domestic assault and felony domestic assault by strangulation, arguing that the district court erred: (1) by ruling that the state could impeach him with five prior convictions, (2) by incorrectly calculating his criminal-history score, and (3) by sentencing him to separate concurrent sentences for felony domestic assault and felony domestic assault by strangulation because they arose from the same behavioral incident. Appellant also argues pro se that the state's witnesses were not credible or competent to testify and that the state was required to disclose the victim's medical records. We affirm in part, reverse in part, and remand.

FACTS

In the evening of May 10, 2012, appellant, James Burr, and his girlfriend, B.K.G., were drinking with their friend, B.D.P. at B.D.P.'s apartment. Appellant started calling B.K.G. a "white trick, " and accused her of sleeping with other men. B.D.P. called the police because appellant was "acting out of line." When officers arrived at B.D.P.'s apartment, they took appellant to detox for the night.

Appellant was released from detox on May 11, 2012, at approximately 6:00 a.m. He returned to B.D.P.'s apartment and started acting aggressively. He again called B.K.G. a "white trick, " and accused her of sleeping with other men. His behavior escalated and he became more violent. Appellant began throwing objects around the apartment; he broke dishes, a small folding table, and damaged B.D.P.'s couch. B.D.P. called 911 and explained that appellant was at his apartment, that he was not welcome, and that he was destroying property.

Appellant then began physically attacking B.K.G. During the attack, he pulled her hair, slapped her, choked her, and threatened to kill her. As a result of the choking, B.K.G. lost consciousness. B.D.P. called 911 back to report that appellant was choking B.K.G.

Appellant stopped strangling B.K.G. when police arrived at the apartment. Officers observed several of B.K.G.'s long blond hairs in appellant's hand. Based on that morning's conduct, the state charged appellant with felony domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2012), felony domestic assault by strangulation in violation of Minn. Stat. § 609.2247, subd. 2 (2012), and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2012).

Appellant represented himself at trial. He exercised his right not to testify. The jury found appellant guilty of felony domestic assault and felony domestic assault by strangulation. It acquitted him of the terroristic threats charge. The district court sentenced him to 33 months in prison for each assault offense, to be served concurrently.

DECISION

I.

The first issue is whether the district court abused its discretion by ruling that the state could impeach him with five prior convictions, four of which came from a single case. After a hearing, the district court ruled that if appellant chose to testify, the existence of five felony convictions in his record would be admissible for impeachment purposes. The court limited evidence of the convictions to disclosure of their existence, holding that the underlying charges and the details of the offenses would not be admitted.

A district court's ruling on the admissibility of prior convictions for impeachment of a defendant is reviewed under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Evidence that a witness has been convicted of a felony is admissible for impeachment if the court "determines that the probative value of admitting this evidence outweighs its prejudicial effect." Minn. R. Evid. 609(a)(1). ...


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