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State v. Souder

Court of Appeals of Minnesota

September 25, 2017

State of Minnesota, Respondent,
v.
Kelsey Anne Souder, Appellant.

         Carlton County District Court File No. 09-CR-14-2238

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

          Thomas H. Pertler, Carlton County Attorney, Jeffrey LH Boucher, Assistant County Attorney, Carlton, Minnesota (for respondent)

          Thomas M. Skare, Thos. Skare Law Office, S.C., Cloquet, Minnesota (for appellant)

          Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Connolly, Judge.

         SYLLABUS

         Minnesota Rule of Evidence 609 does not preclude evidence of a criminal defendant's conviction from being admitted to impeach the defendant's trial testimony simply because the conviction and its underlying offense occurred after the defendant's charged offense.

          OPINION

          ROSS, JUDGE

         A jury found Kelsey Souder guilty of first-degree damage to property for vandalizing a car with spray paint. On appeal, Souder argues that the district court improperly ruled that evidence of her prior felony conviction would be admissible, contending both that it was not really a "prior" offense because it occurred after the alleged vandalism and also that it was unfairly prejudicial in substance. She also argues that the district court erred by granting her only a half-day continuance to respond to new evidence the state discovered during the trial. Nothing in Minnesota Rule of Evidence 609, which allows certain prior-conviction evidence to be admitted to impeach a witness's credibility, precludes the district court from accepting evidence of a criminal defendant's conviction on the ground that the conviction occurred after the testifying defendant's charged offense. We also reject Souder's related argument that the district court abused its discretion when it considered the factors bearing on admissibility. And we hold that the district court did not abuse its discretion by granting Souder a half-day continuance instead of the full day she requested. We therefore affirm Souder's conviction.

         FACTS

         The state charged appellant Kelsey Souder with felony first-degree damage to property for vandalizing a car in September 2014. The prosecutor learned that, after Souder's alleged vandalism but before her trial, a South Dakota district court had convicted her of conspiracy to commit second-degree robbery. The prosecutor sought the district court's permission to introduce evidence of the conviction to impeach Souder's credibility, should she testify. Souder cited State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978), characterizing her conviction as a "subsequent criminal conviction[]" and contending that the purpose of the impeachment rule is to reveal a testifying defendant's "character at the time of the crime" being tried. Souder reasoned that, because her South Dakota crime and conviction occurred after her alleged vandalism, the conviction was irrelevant to show her character at the time of the vandalism. The district court rejected the argument and ruled the 2015 conviction to be admissible. The case proceeded to trial in August 2016.

         Jurors learned that M.H.'s car had been vandalized with black spray paint and that Souder had apparently discovered presumably romantic electronic messages that her former boyfriend had been sending to M.H. by social media. The two women exchanged unfriendly Twitter messages, and the jury reviewed one incriminating post-vandalism barb from Souder that read, "& that's why you don't f-ck wit me b--ch[.]"

         Jurors heard from Cloquet Police Detective Scott Holman, who had recorded several interviews with Souder. Souder initially told the detective that she was working all night when the vandalism occurred. But Souder's employer soon contradicted that claim. Confronted with the contradiction, Souder changed her story to tell the detective that she had instead spent all night helping a friend babysit. But the friend contradicted that story, disclosing that Souder stayed no later than about 2:00 a.m.

         On the last day of trial, the parties learned about new evidence "of an alleged confession made by [Souder]" to her friend L.D. Souder asked for a mistrial or, in the alternative, a continuance of at least one day to prepare her response to the anticipated testimony. The prosecutor opposed a long continuance, emphasizing that he had promptly disclosed L.D.'s late assertion. The prosecutor offered the state's help to issue subpoenas to any witnesses necessary for Souder's defense and argued that Souder could cross-examine L.D. about her account of the alleged confession. The ...


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