This opinion will be unpublished and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
A16-0604
State of Minnesota,
Respondent,
vs.
Bashir Abdullahi Farah,
Appellant.
Filed February 13, 2017
Affirmed
Smith, Tracy M., Judge
Olmsted County District Court
File No. 55-CR-15-4845
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant Bashir Abdullahi Farah appeals from his second-degree-assault
conviction, arguing that he is entitled to a new trial because admitting evidence of his
preliminary-breath-test (PBT) result was plain error and because the district court abused
its discretion in ruling that the state could impeach Farah with ten prior convictions.
Because the admission of the PBT result was not plain error and the district court’s ruling
on the admissibility of the prior convictions was not a clear abuse of discretion, we affirm.
FACTS
On July 16, 2015, Farah encountered O.F. while walking through a parking lot.
Farah threatened to cut and kill O.F. and swung a knife at O.F. from approximately two to
three feet away. O.F. picked up a metal object, intending to defend himself with it, and
waved over a police officer. Farah ran away. The officer chased Farah on foot but did not
catch up to him. Shortly thereafter, another police officer found Farah inside a nearby
apartment and arrested him. Because Farah appeared to be intoxicated, the arresting officer
administered a PBT. The PBT showed an alcohol concentration of 0.295. Farah was
transported to jail.
A bystander found a knife on the ground between the location of the arrest and the
location of the assault. The bystander gave the knife to a third police officer, who believed
it matched the description of Farah’s knife.
Farah was charged with second-degree assault, stalking with a dangerous weapon,
and stalking with two or more prior violations.
Before trial, the state moved to impeach Farah with six crimes-of-dishonesty
convictions and five felony convictions, should Farah testify. The district court concluded
that all six crimes of dishonesty and four of the felonies were admissible for impeachment.
Farah decided not to testify.
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At trial, the arresting officer testified that the PBT showed a 0.295 alcohol
concentration. The state twice compared the PBT result with the legal limit for driving,
once in questioning and once in closing argument.
The jury found Farah guilty on all three counts and found an aggravating factor for
sentencing. The district court sentenced Farah to the statutory maximum of 84 months in
prison for the second-degree assault.
Farah appeals.
DECISION
I. The admission of the PBT result was not plain error and did not affect Farah’s
substantial rights.
Farah asserts for the first time on appeal that admitting testimony about his PBT
result was plain error because it violated Minn. Stat. § 169A.41, subd. 2 (2014). We review
an error that was not objected to at trial for plain error. State v. Strommen, 648 N.W.2d
681, 686 (Minn. 2002). Under the plain error standard, the defendant must show “(1) error;
(2) that was plain; and (3) that affected substantial rights.” Id. If those three elements are
present, we may correct the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotation omitted).
Subdivision 1 of Minn. Stat. § 169A.41 authorizes a police officer to require a driver
suspected of certain driving-related violations to provide a breath sample for a preliminary-
screening test. Minn. Stat. § 169A.41, subd. 1 (2014). Subdivision 2 of that section states
that “[t]he results of this preliminary screening test” must be used for the purpose of
deciding whether to arrest the driver and require chemical testing under the implied-
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consent law, and “must not be used in any court action except” to prove that a chemical
test was properly required under the implied-consent law and in six specific types of actions
related to driving and driver’s licenses. Id., subd. 2. The state argues that the limitations
of section 169A.41, subdivision 2, apply only to PBT results obtained in the circumstances
listed in subdivision 1, and that nothing in that section limits the admissibility of results of
PBTs administered for reasons not involving driving, as in this case.
We conclude that section 169A.41 restricts the use of only those driving-related
PBT results obtained pursuant to the authority granted in that section; it does not restrict
the use of PBT results obtained otherwise. Subdivision 2 of section 169A.41 restricts the
use of “[t]he results of this preliminary screening test,” referring to the screening test that
may be required of a driver under subdivision 1 of that section. Id. (emphasis added). The
conclusion that this language limits the use of tests taken pursuant to that statute is
reinforced by the fact that section 169A.41 is not the only statute addressing PBTs. Three
other sections in the Minnesota Statutes authorize officers to require PBTs when they
suspect someone of hunting, Minn. Stat. § 97B.065, subd. 3 (2014), operating an aircraft,
Minn. Stat. § 360.0752, subd. 7 (2014), or carrying a pistol, Minn. Stat. § 624.7142, subd. 3
(2014), while under the influence of alcohol. Each of those sections limits the use of PBT
results obtained under that particular section to certain purposes or types of actions related
to that section. See Minn. Stat. § 97B.065, subd. 3; Minn. Stat. § 360.0752, subd. 7; Minn.
Stat. § 624.7142, subd. 3. Thus, the use restrictions imposed by each statute corresponds
to the particular authority to require the test granted by each statute.
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Here, the officer administered the PBT not because Farah was driving, hunting,
operating an aircraft, or carrying a pistol, but because Farah appeared intoxicated and, the
officer testified, the jail wants to have an idea of the level of intoxication of arrestees.
Because the PBT result in this case was not obtained pursuant to any of the statutes
authorizing law enforcement to require a PBT, its admissibility is not restricted by those
statutes, and it was not error to admit evidence of it at trial.1
Furthermore, even if admission of the PBT result were plainly erroneous, it would
not be a reversible error because it did not affect Farah’s substantial rights. Strommen, 648
N.W.2d at 686. “An error affects substantial rights if the error is prejudicial—that is, if
there is a reasonable likelihood that the error substantially affected the verdict.” Id. at 688.
Farah cites State v. Litzau, which states that “[w]here the evidence was aimed at
having an impact on the verdict, we cannot say the verdict was surely unattributable to the
error.” 650 N.W.2d 177, 184 (Minn. 2002). Farah argues that the admission of the PBT
result affected the verdict because the state used it to bolster O.F.’s credibility, which was
an important factual issue for the jury. In its closing argument, the state listed factors
1
In his reply brief, Farah expands on his argument that admission of the evidence was error
under Minn. Stat. § 169A.41 by asserting that the PBT had to have been administered
pursuant to that section because otherwise the PBT was unauthorized by law. Farah
supplies no caselaw for the proposition that a PBT administered for a reason other than
testing for possible intoxication of a driver is unauthorized by law or that admission of the
result of such a PBT constitutes error. Without such authority, we cannot conclude that
admission of such a PBT result is plain error. See State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006) (stating that an error is plain if it “contravenes case law, a rule, or a standard
of conduct”). Because the question of the officer’s authority to administer the PBT was
not argued to or considered by the district court, we do not consider it on appeal. See Roby
v. State, 547 N.W.2d 354, 357 (Minn. 1996).
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indicating that O.F. was credible, including that the PBT corroborated O.F.’s testimony
that Farah seemed intoxicated. The state referred to Farah as “drunk,” “belligerent,” and
“intoxicated” many times throughout its closing argument and pointed to Farah’s level of
intoxication as an explanation for his actions.
Although the state’s repeated references to Farah’s level of intoxication do seem to
be “aimed at having an impact on the verdict,” see id., most of those instances referred to
Farah as intoxicated generally; the specific PBT result was only mentioned twice. Two
witnesses testified that Farah appeared to be intoxicated, which likely would have made a
substantially similar impression on the jury even without the PBT evidence. We conclude
that the admission of the PBT result did not affect Farah’s substantial rights and that any
error in admitting the evidence would not warrant reversal. Strommen, 648 N.W.2d at 686.
II. The district court did not abuse its discretion in concluding that Farah could
be impeached with ten prior convictions.
Farah argues that he is entitled to a new trial because he chose not to testify based
on the district court’s erroneous ruling that he could be impeached with ten prior
convictions if he testified. We will reverse a district court’s ruling on the admissibility of
a defendant’s convictions for impeachment only if there was a clear abuse of discretion.
State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006).
Evidence of prior convictions is admissible under Minn. R. Evid. 609(a) for the
purpose of attacking a witness’s credibility. A felony conviction is admissible if the
probative value of admitting that evidence outweighs its prejudicial effect. Minn. R. Evid.
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609(a)(1). In applying this balancing test, the district court must consider the following
“Jones 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. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (quoting State v. Jones, 271 N.W.2d
534, 538 (Minn. 1978)) (holding that the Jones factors still apply even though Jones was
decided before the adoption of Minn. R. Evid. 609). Convictions for crimes involving
“dishonesty or false statement” are admissible to impeach regardless of felony or
misdemeanor status and without balancing probative value against prejudicial effect.
Minn. R. Evid. 609(a)(2).
The district court ruled that six convictions for providing a false name to an officer
were crimes of dishonesty admissible for impeachment should Farah choose to testify. The
district court also ruled that four felony convictions not involving dishonesty were
admissible based on an analysis of the Jones factors. A fifth felony conviction was ruled
inadmissible under the third Jones factor because it was very similar to the current charges.
Farah first asserts that because six false-name convictions were admissible for
impeachment, any probative value of the felony convictions was outweighed by the unfair
prejudice that would result from showing the jury such a high number of convictions.
Evidence of a prior felony conviction has impeachment value because it allows the jury to
see “the whole person” and thus better judge the trustworthiness of the witness’s testimony.
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Ihnot, 575 N.W.2d at 586. Frequent prior convictions showing a “pattern of lawlessness”
also may be probative of the witness’s credibility. Swanson, 707 N.W.2d at 655. Here,
the record demonstrates that the district court analyzed the Jones factors for each of the
felonies the state offered and decided to admit four of them based on those factors. The
district court also reasoned that the “history of repeated offenses” would be probative of a
pattern of lawlessness. See id. The district court’s balancing of the factors was not a clear
abuse of discretion.
Farah also argues that the district court abused its discretion by ruling that Farah’s
prior conviction of fourth-degree assault was admissible even though it was similar to the
current second-degree-assault charge. The third Jones factor favors excluding prior
convictions that are similar to the current charge. Jones, 271 N.W.2d at 538. But it is not
necessarily an abuse of discretion to admit a prior conviction when only one of the Jones
factors weighs against admission. See Swanson, 707 N.W.2d at 656 (concluding that the
district court did not abuse its discretion under rule 609(a) because only the third Jones
factor weighed against admitting the prior convictions); State v. Bettin, 295 N.W.2d 542,
546 (Minn. 1980) (concluding that it was not a clear abuse of discretion to allow evidence
of defendant’s prior rape for impeachment in a sexual-assault trial even though the third
Jones factor weighed against admitting it); State v. Irby, 820 N.W.2d 30, 38 (Minn. App.
2012) (concluding that the third Jones factor weighed against admitting a conviction, but
that the district court did not clearly abuse its discretion in admitting it because no other
factors weighed against it), aff’d on other grounds (Minn. 2014). The district court’s
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conclusion that the assault conviction was admissible in this case was not a clear abuse of
discretion.
Finally, Farah asserts that the district court improperly considered whether Farah
was “morally worthy of impeachment” in deciding to admit ten prior convictions. This
challenge is based on the district court’s statement that “in a sense, the Defendant has
earned this. If he had less of a record, there would be less to impeach with.” We do not
agree that this comment reflected improper consideration of factors outside of the Jones
factors. The full context surrounding the statement shows that the district court recognized
and was appropriately weighing the potential prejudicial effect of multiple convictions
against the probative value that multiple convictions have for impeaching a witness. The
record shows that the district court properly analyzed the Jones factors and concluded that
the convictions were admissible for permissible reasons.
We therefore conclude that the district court did not abuse its discretion in
concluding that the state could impeach Farah with ten prior convictions if he chose to
testify.
Affirmed.
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