This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-51

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jesse Ray Kangas,

Appellant.

 

 

Filed September 26, 2000

Affirmed

Halbrooks, Judge

 

St. Louis County District Court

File No. K899300276

 

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 North 5th Avenue West, #501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

 

††††††††††† Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

††††††††††† Appellant challenges his convictions of first-degree aggravated robbery and tampering with a witness.† He contends that the trial court erred by admitting evidence relating to a juvenile offense and by permitting argument that the prior offense could be considered by the jury in assessing appellantís credibility.† The trial court properly admitted the evidence, but it was improper to permit argument that the prior offense could be used to assess appellantís credibility.† But we conclude that these statements did not substantially affect the verdict.† We, therefore, affirm.†

FACTS

††††††††††† Appellant Jesse Ray Kangas was with a friend at the Short Stop convenience store in Hibbing at approximately 6:00 a.m. on March 14, 1999.† While they were in the store, D.S. and two of his friends entered the store also intending to purchase food and beverages.†

Kangas and D.S. were acquaintances, but had not seen each other for several months.† In June 1998, D.S. had provided the police with information relative to a robbery and assault that Kangas and another individual had committed while Kangas was still a juvenile.† Kangas ultimately pleaded guilty to the assault charge and was remanded to the custody of the commissioner of corrections.† Kangas had returned to Hibbing only a few days prior to March 14, 1999, after being released from juvenile detention and working in the Twin Cities for a brief time.†

Kangas and D.S. exchanged greetings in the store and ultimately agreed to walk to an alley behind the store.† Kangasís friend accompanied them to the alley, but D.S.ís friends waited in front of the store.† Kangasís and D.S.ís versions differ on why they went to the alley and what occurred.†

D.S. testified that Kangas said that they needed to talk and walked with D.S. into the alley.† Once they reached the alley, Kangas became hostile and asked D.S. why he had provided information to the police regarding the June 1998 assault and robbery.† D.S. claimed that Kangas began slapping him and then demanded all of his money and his ring.† D.S. testified that when he refused to give Kangas his property, Kangas punched him in the mouth.† D.S. gave Kangas approximately $10 in cash and his ring that was valued at approximately $215.† D.S. testified that Kangas stated that he would assault D.S. every time that they met and that the assaults would be worse in the future.

In contrast, Kangas testified that they went into the alley because D.S. offered to share some marijuana with Kangas.† He did not deny asking D.S. about providing information to the police, but he claimed he did so without hostility.† Rather, Kangas testified that as soon as he mentioned D.S.ís statement to the police, D.S. became very defensive and hostile.† He stated that D.S. threw his lit cigarette at Kangas and that the cigarette hit him in the chest.† Kangas testified that he slapped D.S. in response to having the cigarette thrown at him.† Kangas denied robbing D.S. or threatening and assaulting him in retaliation for the information D.S. provided to the police.

Following the incident in the alley, Kangas and his friend left the store in Kangasís truck.† D.S. came out of the alley with a bloody lip and was crying.† He told his two friends what had happened.† They went to another friendís house and immediately called the police.† D.S. provided the police with a statement that was consistent with his trial testimony.† The police did not locate Kangas until the next day.† When the police questioned him, Kangas provided a statement that was vastly different from his trial testimony.† Kangas admitted that he saw D.S. at the store, but denied going into the alley with him.†

At trial, the state attempted to introduce evidence of Kangasís 1998 juvenile conviction as Spreigl evidence.† The trial court denied this request, but ruled that the state could introduce evidence of the 1998 assault and robbery for the purpose of proving the witness-tampering charge.† Counsel for D.S. did not object at trial to the introduction of that evidence when D.S. testified or when the police officer who took D.S.ís statement in June 1998 testified.† During closing arguments, both counsel commented upon the prior offense and indicated to the jury that it could be used to assess Kangasís credibility.†

The jury returned guilty verdicts on both the robbery and tampering charges.† Kangas contends that his trial was fundamentally unfair.† He bases this assertion on the fact that the state introduced evidence at trial regarding the facts surrounding his juvenile adjudication that was not necessary to prove the instant charges.† Kangas also contends that his right to a fair trial was violated when the jury was told that it could consider the juvenile adjudication when assessing his credibility.†

D E C I S I O N

††††††††††† Kangas did not object in the trial court to the errors that he now contends resulted in a fundamentally unfair trial.

Generally, failure to object to evidence at trial constitutes waiver of those issues on appeal.† However, notwithstanding a defense counselís failure to object at trial, this court will consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial.† The test for determining plain error is ďwhether there was or was not a reasonable likelihood that any error substantially affected the verdict.Ē

 

Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996) (citations and quotation omitted).† Because Kangas failed to raise appropriate objections below, his conviction will be affirmed absent plain error.†

Kangas concedes that some information regarding the prior offense was necessary for the state to prove the tampering charge.† The tampering statute requires retaliation against an individual who provided information to law enforcement ďconcerning a crime.Ē† Minn. Stat. ß 609.498, subd. 1(f) (1998).† In other words, the state cannot prove its tampering case unless it introduces some evidence regarding another crime.†

Kangas contends that his trial counsel should have stipulated to the fact that D.S. provided the police with information implicating Kangas in a crime.† But because there was no offer to stipulate, there is no basis for arguing on appeal that a stipulation should have been used.† See State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998) (providing that, generally, even if a defendant offers to stipulate to something, the state is not forced to accept the stipulation in exchange for presenting relevant evidence), review denied (Minn. July 16, 1998).† At a minimum, Kangasís trial counselís failure to offer to make such a stipulation did not make the trial fundamentally unfair requiring this court to reverse his conviction and remand for a new trial.† Cf. State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984) (holding that it was error for trial court to prevent defendant charged with aggravated DWI from stipulating to prior DWI conviction, but that error in that case was not so prejudicial as to require a new trial); State v. Davidson, 351 N.W.2d 8, 12-13 (Minn. 1984) (holding that defendant charged as felon in possession of a firearm should be permitted to stipulate to prior felony, but failure to permit stipulation in that case was not so prejudicial as to require a new trial).

Further, the evidence regarding the previous conviction was relevant and not unduly prejudicial.† See Minn. R. Evid. 403 (providing that even relevant evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect).† This court has previously held that some evidence of the underlying crime in a witness tampering case ďis important to understanding the context of the chargesĒ against the accused.† Lande v. State, 406 N.W.2d 574, 577 (Minn. App. 1987), review denied (Minn. June 30, 1987).† Kangasís trial counsel did not object to the evidence at the time it was admitted and the number of witnesses permitted to testify regarding the previous incident was limited by the trial court.† See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (noting that defendantís failure to object to prosecutorís comments implies that the comments were not prejudicial).†

Further, the testimony about the previous incident was limited to the basic facts, i.e., D.S. told the police that he heard Kangas had hit a man in the head with a frying pan and robbed him.† The evidence regarding the prior incident was certainly prejudicial to Kangas because it established one of the elements of the tampering charge.† Indeed, in a criminal trial, much of the stateís relevant evidence will be prejudicial to the defendant.† But relevant prejudicial evidence is not excluded unless its probative value is substantially outweighed by its prejudicial effect.† Minn. R. Evid. 403.† The evidence regarding Kangasís juvenile offense was not unfairly prejudicial.†

††††††††††† Kangas also contends that the fact that both attorneys told the jury that it could use his juvenile adjudication to assess his credibility violated his right to a fair trial.† Kangas cites to Minn. R. Evid. 609(d) as support for his contention that it was not proper for the attorneys to argue that his juvenile adjudication could be used in this way.† Minn. R. Evid. 609(d) provides that for the purpose of impeaching a witnessís credibility:

††††††††††† Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.

 

In this case, the evidence of Kangasís juvenile adjudication was not introduced for the purpose of impeaching his credibility.† Rather, it was introduced for the purpose of proving the tampering charge filed against Kangas. †See State v. Wermerskirchen, 497 N.W.2d 235, 239-40 (Minn. 1993) (discussing the ďrule of multiple admissibility,Ē i.e., evidence that may be inadmissible for one purpose should not be excluded if it is admissible for some other purpose).† Although the evidence was properly admitted, we agree with Kangas that it was improper for the attorneys to tell the jury that it could use this evidence to assess his credibility.

††††††††††† But despite this error, Kangasís right to a fair trial was not violated.† First, Kangasís trial counsel did not object to the prosecutorís argument and chose to make a similar argument himself during his closing.† This implies that Kangas did not find the prosecutorís comments prejudicial at the time they were made.† Whittaker, 568 N.W.2d at 450.† Also, the evidence was already legitimately before the jury.† Kangasís trial counsel likely commented upon it based on an assumption that the jury would consider that evidence generally even if it was not technically admissible for a particular purpose.† Additionally, the judge provided the jury with accurate instructions regarding the juryís role in assessing credibility and regarding the charged offenses in this case.† See Sanderson v. State, 601 N.W.2d 219, 226 (Minn. App. 1999) (holding that the trial courtís proper instruction ďmitigated any prejudicial effect of the prosecutorís remarksĒ), review denied (Minn. Mar. 28, 2000).†

††††††††††† Affirmed.