This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Russell Allan Konrad,
Filed April 8, 2003
Freeborn County District Court
File No. K900662
Mike Hatch, Attorney General, Jennifer A. Service, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128; and
Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for respondent)
Samuel A. McCloud, Richard P. Ohlenberg, McCloud & Boedigheimer, PA, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of fourth-degree criminal sexual conduct. Because we conclude that the district court erred by not following the procedure set forth in Minn. R. Crim. P. 26.01, subd. 1(4), to effect a waiver of appellant’s right to trial by a 12-person jury, we reverse and remand.
Appellant Russell Allan Konrad was a band instructor at Albert Lea High School and Southwest Middle School. On April 29, 2000, Konrad was getting ready to chaperone a group of high-school students who were traveling to a band competition. As the students loaded musical instruments into the rear of a bus, one student, B.H., found that she had grease on her hands and went into the school to wash them. After she had washed her hands, B.H. noticed that Konrad was watching her from his office. Konrad then allegedly approached B.H., grabbed her buttocks, kissed her, and held her against him so that she could feel his erect penis.
The state charged Konrad with two counts of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(e) (2000); one count of fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1) (2000); and one count of solicitation of a juvenile, in violation of Minn. Stat. § 609.494, subds. 1, 2(b) (2000). The state later amended the complaint to charge only one count of fourth-degree criminal sexual conduct.
The state served notice of its intent to offer at trial evidence of prior bad acts by Konrad. Such evidence is known as Spreigl evidence, after State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The Spreigl evidence consisted of the testimony of Alan Root, Brian Espe, J.M., and A.J. Root and Espe were school principals who had supervised Konrad. J.M. and A.J. were former students of Konrad’s and were juveniles when the incidents they testified to occurred. Konrad moved the district court to exclude the Spreigl evidence. The district court denied Konrad’s motion, concluding that the testimony of the four witnesses (1) proved the prior bad acts by clear-and-convincing evidence, (2) was relevant, and (3) was not unduly prejudicial to Konrad’s defense.
On November 27, 2001, the first day of Konrad’s trial, the attorneys met with the district court judge in chambers. Konrad was not present. During the in-chambers conference, Konrad’s attorney stated that “we are willing to waive down to a six-person jury.” The state took no position on the issue, and the trial proceeded before a six-person jury. Konrad neither stated personally in writing or orally on the record that he wished to waive his right to a 12-person jury nor did he object to being tried by a six-person jury. The jury found Konrad guilty of fourth-degree criminal sexual conduct.
Konrad appeals, arguing that the district court (1) erred by not following the procedure set forth in Minn. R. Crim. P. 26.01 to effect a waiver of his right to a 12-person jury and (2) abused its discretion by admitting the Spreigl evidence.
D E C I S I O N
We first address Konrad’s claim that the district court erred by not following the procedure set forth in Minn. R. Crim. P. 26.01, subd. 1(4), to effect a waiver of the number of jurors required by law. The interpretation of the rules of criminal procedure presents a question of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).
Because Konrad was charged with a felony, he was entitled to be tried by a 12-person jury. Minn. Const. art. I, § 6. But the constitutional right to a 12-person jury in felony cases is waivable, as long as the waiver is knowing, intelligent, and voluntary. State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002), review denied (Minn. Dec. 17, 2002). Under the rules of criminal procedure, a waiver of the right to a 12-person jury is effective only if (1) both the state and the defendant stipulate to the waiver before the verdict; (2) the court advises the defendant of his right to be tried before a 12-person jury; (3) the defendant agrees personally, either in writing or orally in open court, to trial by a reduced jury; and (4) the court approves the stipulation. See Minn. R. Crim. P. 26.01, subd. 1(4); State v. McKenzie, 532 N.W.2d 210, 218 (Minn. 1995); Roberts, 651 N.W.2d at 201-02.
Here, the record shows that the state and the defense did not agree to a waiver, that the court did not advise Konrad of his right to be tried before a 12-person jury, and that Konrad did not personally agree, either in writing or orally on the record, to trial by a reduced jury. The record also shows that at no time did Konrad object to trial by a reduced jury.
The state argues that because Konrad did not object to the six-person jury at trial, this issue should be analyzed under the plain-error test of State v. Griller, 583 N.W.2d 736 (Minn. 1998). We apply plain-error analysis to unobjected-to error when a defendant’s decision to not object to an issue at trial serves as a waiver of that issue on appeal. See State v. Peterson, 533 N.W.2d 87, 91 (Minn. App. 1995); see also Minn. R. Crim. P. 31.02. But a waiver of the constitutional right to a 12-person jury must be effected in accordance with the rules of criminal procedure. See Roberts, 651 N.W.2d at 201-02. Here, the procedure set forth in Minn. R. Crim. P. 26.01, subdivision 1(4), was not followed. Konrad did not, therefore, waive his right to a 12-person jury, and it is inappropriate to apply the plain-error test.
The state also suggests that we apply invited-error analysis here because it was Konrad’s counsel who requested a six-person jury. Criminal defendants should not be allowed “to court error in order to preserve a basis for appeal and thus force the state into the cumbersome necessity of a new trial.” State v. Kortness, 284 Minn. 555, 558, 170 N.W.2d 210, 213 (1969) (quotation omitted); see also Majerus v. Guelsow, 262 Minn. 1, 11, 113 N.W.2d 450, 457 (1962) (“[I]t was the attorney for the defendant who requested the trial judge’s action; defendant will not now be heard to attack that action.”). But the Minnesota Supreme Court has refused to apply the doctrine of invited error when the error is one of fundamental law. State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997). We have already noted that the right of a defendant accused of a felony to be tried before a 12-person jury is a right of constitutional dimension. And the supreme court has held that “the number 12” is an essential attribute of a jury. State v. Hamm, 423 N.W.2d 379, 381 (Minn. 1988). We, therefore, decline the state’s invitation to apply the doctrine of invited error.
The formal procedure set forth in rule 26.01, subdivision 1(4), for waiver of a 12-person jury was not followed, and the district court erred by accepting Konrad’s attorney’s offer to waive his client’s right to a 12-person jury. We therefore reverse Konrad’s conviction and remand for further proceedings.
Because we reverse the conviction, we decline to reach the issue of whether the district court abused its discretion by admitting the Spreigl evidence offered by the state.
Reversed and remanded.