This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Brian Keith Engquist,



Filed July 1, 2003

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 02010424


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Michael Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Brian Keith Engquist appeals from his conviction for felon in possession of a firearm, arguing that the district court abused its discretion by permitting the state to introduce rebuttal testimony that disclosed his felon status after appellant stipulated that he was an ineligible person.  Because the prejudicial impact of this testimony outweighed its probative value, we reverse.


            On review of evidentiary rulings, the defendant has the burden of proving that the district court abused its discretion and that he was prejudiced.  State v. Matelski, 622 N.W.2d 826, 831 (Minn. App. 2001), review denied (Minn. May 15, 2001). 

            Where a prior conviction is an element of the crime charged, a defendant’s offer to stipulate to the prior conviction must be accepted by the court unless the facts underlying the prior conviction are in some way relevant to a disputed issue.  Id. at 832; State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984) (holding that trial court erred by refusing to permit defendant to stipulate to prior convictions in gross misdemeanor DWI matter, but that such error was harmless); State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984) (same).  Where the parties stipulate to the existence of an element of a charge

the door should be left open so that in appropriate cases where the probative value of the evidence outweighs its potential for unfair prejudice, the evidence may be admitted. 


Davidson, 351 N.W.2d at 11.  But admissible evidence may be excluded if its prejudicial impact outweighs its probative value.  Minn. R. Evid. 403; State v. Hjerstrom, 287 N.W.2d 625, 628 (Minn. 1979). 

            Here, appellant, who claimed that he sought help at the home of Donald Marske because he was being pursued by a group of men armed with clubs, argued necessity as a defense to the charge of felon in possession.  On rebuttal, Marske, who gave appellant the firearm, testified that appellant never asked whether he could take refuge in Marske’s house.  Marske also testified that appellant told him he was a felon.  The state advanced two theories to permit use of this disputed testimony.  The state first argued that the statements were not hearsay and were admissible under Minn. R. Evid. 801(d)(2).  We agree that appellant’s statements to Marske constituted admissions of a party and properly fell under this exception to the hearsay rule.  The state also argued that this evidence was necessary to rebut appellant’s claim that Marske denied him admission into the house and to explain why Marske followed appellant to the scene of the arrest.  On this point we disagree.

            If the sole purpose of Marske’s testimony was to rebut appellant’s claim of necessity, appellant’s statement about his felon status was irrelevant.  Marske’s rebuttal testimony was crucial to the necessity issue only insofar as it negated appellant’s testimony that he had sought refuge in Marske’s home but had been denied entry.  Marske could easily have been instructed to avoid repeating appellant’s statement regarding his felon status, while still rebutting appellant’s testimony.  The failure to do so is particularly troubling where defense counsel requested redaction of Marske’s testimony. 

            Even if the statement was admissible under Minn. R. Evid. 801(d)(2), it may nonetheless be excluded if unduly prejudicial.  The Minnesota Supreme Court stated:

We believe that generally in a prosecution for being a felon in possession of a weapon the defendant should be permitted to remove the issue of whether he is a convicted felon by stipulating to that fact.  In the vast majority of such cases the potential of the evidence for unfair prejudice clearly outweighs its probative value.


Davidson, 351 N.W.2d at 11.  We therefore conclude that the prejudicial effect of admitting Marske’s testimony regarding appellant’s statement to him outweighed the negligible probative value of this evidence.

            If admission of the statement was an abuse of discretion, a new trial is necessary unless the state can show beyond a reasonable doubt that the error was harmless.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  Error is harmless if the “verdict actually rendered was surely unattributable to the error.”  Id. (citation omitted).  On this record, we cannot say that the verdict is surely unattributable to error.  We therefore reverse and remand for a new trial. 

            Reversed and remanded.