State of Minnesota v. Cass Howard Ellingboe, A15-1732

Early morning March 11, 2015: Cass Ellingboe went to a residence where an altercation occurred; he punched, choked, kicked, and repeatedly struck G.B., who suffered serious injuries and was airlifted for treatment.
Ellingboe was charged with third-degree assault and felony fifth-degree assault and testified at trial claiming self-defense.
Prior to trial, the district court ruled (after applying Jones factors) that the State could impeach Ellingboe with three prior felony convictions, including two third-degree burglary convictions and a 2013 no-contact-order violation based on an underlying assault.
At trial Ellingboe admitted the convictions on direct; the court gave curative instructions twice and the prosecutor did not mention the convictions in closing; jury convicted on both assault counts.
On sentencing the court imposed 33 months on the third-degree count; Ellingboe appealed, challenging (1) the admission of prior burglary convictions for impeachment and (2) being convicted of both third-degree assault and felony fifth-degree assault.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior burglary convictions for impeachment	State: convictions admissible under Minn. R. Evid. 609(b); probative value outweighs prejudice	Ellingboe: burglary convictions too similar to charged assault and unduly prejudicial	Court: No abuse of discretion; burglary convictions dissimilar enough under Jones factors and admissible for impeachment
Prejudice / harmless error from admission of convictions	State: any error was harmless given curative instructions and strong evidence	Ellingboe: admission was highly prejudicial and likely impacted jury	Court: Any error harmless — cautionary instructions, corroborating evidence, and prosecutor's restraint weigh against reversal
Conviction on both third-degree assault and felony fifth-degree assault	State: maintained convictions	Ellingboe: cannot be convicted of greater and lesser included offense simultaneously	Court: Felony fifth-degree assault is a lesser/multi-tier included offense of third-degree assault; conviction for both not permitted — felony fifth-degree count vacated and remanded

State v. Hill, 801 N.W.2d 646 (Minn. 2011) (discusses Jones-factor analysis for impeachment with prior convictions)
State v. Williams, 771 N.W.2d 514 (Minn. 2009) (standard of review for admission of prior convictions)
State v. Bustos, 861 N.W.2d 655 (Minn. 2015) (reversal requires showing of prejudice from erroneous evidentiary ruling)
State v. Jones, 271 N.W.2d 534 (Minn. 1978) (established five-factor test for impeachment with prior convictions)
State v. Graham, 371 N.W.2d 204 (Minn. 1985) (probative vs. prejudicial balance for prior convictions)
State v. Flemino, 721 N.W.2d 326 (Minn. App. 2006) (distinguishing burglary from consensual-entry offenses for impeachment similarity analysis)
State v. Campbell, 861 N.W.2d 95 (Minn. 2015) (harmless-error standard for admission of other-crimes evidence)
State v. Rosenberg, 851 N.W.2d 609 (Minn. 2014) (discusses burden to show reasonable likelihood of substantial effect on verdict)
State v. Pflepsen, 590 N.W.2d 759 (Minn. 1999) (judgment of conviction is formal adjudication under Minn. Stat. § 609.04)
State v. Bertsch, 707 N.W.2d 660 (Minn. 2006) (defines "necessarily included" offense test)
State v. Mitchell, 881 N.W.2d 558 (Minn. App. 2016) (compare elements, not facts, to determine included offenses)
State v. Hackler, 532 N.W.2d 559 (Minn. 1995) (lesser degree offenses in multi-tier statutory schemes can be included offenses)
State v. Crockson, 854 N.W.2d 244 (Minn. App. 2014) (remedy is remand to vacate improper duplicate conviction)