may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Robert Clarence Hensley,
Pine County District Court
File No. K70219
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Mark R. Ireland, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063-1693 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of possession of a firearm by an ineligible person, appellant Robert Clarence Hensley argues that he was denied effective assistance of counsel and that the district court committed plain error by allowing repeated references to his status as a felon who had been convicted of a crime of violence. We affirm.
Appellant was convicted of felony terroristic threats and second-degree burglary on March 10, 1999. On May 7, 2001, his civil rights were restored with the exception that he was prohibited from shipping, transporting, possessing, or receiving a firearm. Minn. Stat. §§ 609.165, subd. 1a (order of discharge restoring civil rights must provide that person convicted of crime of violence is not entitled to ship, transport, possess, or receive firearm), 624.712, subd. 5 (2000) (listing crimes of violence).
Appellant was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 609.165, subd. 1(a) (2000), based on an incident that occurred January 5, 2002, when Pine County deputy sheriff Thomas Pitzen saw appellant driving. Because Pitzen knew that appellant’s driver’s license had been revoked, he stopped appellant and arrested him for driving after revocation. Pitzen searched appellant’s vehicle and found a shotgun lying behind the front seat. Appellant told Pitzen that the shotgun did not belong to him.
Appellant testified that he had followed Sheldon Cummings to Barb Alle’s house in Hinckley. Cummings was returning a pickup truck to Alle. The plan was for appellant to follow Cummings to Alle’s house where Cummings would transfer his belongings from the pickup truck to the vehicle appellant was driving, and appellant would drive Cummings home. When appellant arrived at Alle’s house, Alle and Cummings were engaged in conversation, so appellant went inside Alle’s house to use the bathroom. When he came outside, Cummings told him that he no longer needed a ride because he was taking a different vehicle of Alle’s back to his house. Appellant followed Cummings to make sure that he made it back to Pine City. A short time later, Pitzen stopped appellant.
At trial, appellant denied knowing that the shotgun was in his vehicle and testified that the gun was not his. Appellant testified that Cummings must have put the shotgun in the vehicle while he was inside Alle’s house. Alle corroborated portions of appellant’s testimony, but she testified that she did not see Cummings transfer any property from the pickup truck to any other vehicle. Pitzen testified that he never took a statement from Cummings concerning the gun and that a trace on the gun did not reveal an owner.
Before voir dire, the parties discussed whether appellant could stipulate that he had previously been convicted of felony terroristic threats. The record indicates that the state agreed to stipulate, but it is not clear from the record what the terms of the stipulation were. In granting appellant’s motion to stipulate, the court stated that
there is a case State v. Allen . . . [wherein] the trial court refused to accept defendant’s offer to stipulate to prior felony convictions in a case in which the offense was possession of a hand gun by a felon, and that was found to be prejudicial by the Minnesota Court of Appeals. . . . So for that purpose I will note that there has been a stipulation offered and that the Court will allow that stipulation to go forward without the certified copy of the conviction being presented to the jury.
During the trial, the jury heard repeated references to appellant’s prior felony convictions. For example, the state introduced a letter that Pitzen found during the search of appellant’s car. The letter, which was sent to appellant by the department of corrections, states that appellant’s civil rights are restored with the exception that he is not to ship, transport, possess or receive a firearm. The letter states:
However, if you have been convicted of a Crime of Violence under Minn. Stat. § 624.712 subd. 5, you are not entitled to ship, transport, possess or receive a firearm until ten (10) years have elapsed from the date of discharge and during that time, are not convicted of any other Crime of Violence.
Later, during direct examination, appellant’s counsel asked appellant about his felony conviction:
Q Mr. Hensley, you understand that you have been charged with a crime?
Q And the crime that you’re charged with is that you are a felon ineligible to possess a firearm.
Q Mr. Hensley, would you agree that you have been convicted of a felony in the past?
Q And that felony was terroristic threats?
Q When did that happen, sir?
A Back in 1998.
Q And who was the victim of that climb? [sic]
A One Ben Neville (phonetic).
Q And you agree that because of that a conviction you cannot possess a firearm?
On cross-examination, the prosecutor asked appellant about the letter that was introduced earlier and about his prior felony convictions:
Q In addition to the felony
terroristic threats, you were also convicted of felony burglary,
A That is right.
Q And you had the letter stating that you couldn’t possess firearms, so you knew you weren’t supposed to possess firearms, right?
A That’s right.
Appellant’s attorney did not object.
Before instructing the jury, the court distributed a copy of the jury instructions to both parties. Appellant’s attorney did not object to the instructions. The court instructed the jury:
The parties have stipulated to the fact that the [appellant] was convicted of felony terroristic threats on December the 4th, 1997. The statutes of Minnesota provide that whoever has been convicted of a crime of violence and who ships, transports, possesses or receives a firearm before ten years have elapsed since the person was restored to civil rights is guilty of a crime. The elements of a felon in possession of a firearm are, first, the defendant knowingly shipped, transported, possessed or received a firearm, second, the defendant had been convicted of a crime of violence. The statutes of Minnesota define a crime of violence to include felony terroristic threats. Third, at the time the defendant shipped, transported, possessed or received the firearm less than ten years had elapsed since the defendant was restored to civil rights for that conviction; fourth the defendant’s acts took place on or about January 5th, 2002 in Pine County.
During closing arguments, the prosecutor stated:
The second element is that [appellant] was convicted of a felony crime of violence, and he’s agreed, stipulated, that he was convicted of felony terroristic threats on December 4th of 1997, and that this is a felony crime of violence. . . . The third element is at the time of this offense . . . less than ten years had elapsed since [appellant] was restored to civil rights [following his felony terroristic threats conviction.] . . . By [appellant’s] own admission, [elements two through four] are satisfied. The only question remaining for you is this element of knowingly [possessing a firearm].
Appellant’s counsel made the following closing argument: “At the beginning of the case I asked you to listen, and I’m confident that you would render a true and just verdict, and I believe you’ve heard all the evidence, and there is really nothing else I can say. You have to decide the facts. Thank you. ”
The jury returned a guilty verdict, and appellant was sentenced to 60 months in prison, the presumptive sentence.
1. Ineffective assistance of counsel
Appellant argues that his attorney’s failure to request a stipulation that appellant was not entitled to possess a firearm was ineffective assistance of counsel.
To succeed on his ineffective-assistance-of-counsel claim, appellant “must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). “In Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances. A strong presumption exists that an attorney acted competently at trial.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotations omitted).
Although the record does not clearly state the terms of the stipulation that appellant’s attorney agreed to, it appears that the stipulation was that appellant was convicted of felony terroristic threats on December 4, 1997. Appellant contends that under State v. Davidson, 351 N.W.2d 8 (Minn. 1984), he was entitled to stipulate that he was ineligible to possess a weapon, rather than that he was a convicted felon, and that stipulating that he was ineligible to possess a weapon would have kept the prejudicial evidence of his conviction from the jury.
Davidson involved an appeal from a conviction of being a felon in possession of a handgun. Id. at 9. At the omnibus hearing, defense counsel informed the court “that defendant wanted to stipulate that he had a prior conviction of a crime of violence in order to prevent the jury from learning that he was a convicted felon.” Id. The court denied the motion, and the jury was informed that the defendant had been convicted of first-degree arson. Id. The supreme court concluded that denying the motion was error. Id. at 12. The 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. However, 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. One such case might be where the facts underlying the prior conviction are relevant to some disputed issue, making the evidence admissible under Minn. R. Evid. 404(b). Prior convictions would still be useable under Minn. R. Evid. 609 to impeach the defendant if he testified.
Id. at 11 (emphasis added). The supreme court explained that
the correct approach under the Rules of Evidence in a case such as this one is to compare the potential of the evidence for unfair prejudice with the relevance of the evidence to issues other than the issue to which the stipulation relates. In this case we believe that the potential of the evidence for unfair prejudice clearly outweighed the relevance, if any, that the evidence had to other issues. The court should have granted the defendant’s motion and should have instructed the jury to the effect that defendant had stipulated that under Minnesota law he was not entitled to possess a pistol and that therefore the jury should direct its attention to the issue of whether or not the state had established beyond a reasonable doubt that he possessed the pistol, either actually or constructively.
Id. at 11-12.
Appellant argues that, as in Davidson, the potential of the evidence of his prior conviction for unfair prejudice clearly outweighed its probative value, and, therefore, his attorney’s failure to obtain a stipulation that removed from the jury the issue of whether he is a convicted felon was ineffective assistance. But there is a significant difference between appellant’s trial and the trial in Davidson. Appellant testified at his trial, but in Davidson, defense counsel stated at the omnibus hearing that the defendant was going to waive his right to testify. Id. at 9.
This difference is significant because in Davidson, the supreme court explicitly stated that in a prosecution for being a felon in possession of a weapon, even if the defendant stipulates that he is ineligible to possess a weapon, evidence of the defendant’s prior convictions would still be admissible under Minn. R. Evid. 609 to impeach the defendant if he testified. Id. at 11. Here, because appellant testified, a stipulation that he was ineligible to possess a weapon would not necessarily have kept the jury from learning about his prior convictions. The jury could have learned about the convictions if the prosecution offered them to impeach appellant.
However, we can only speculate whether appellant’s attorney chose not to seek a different stipulation because he was concerned that, in spite of the stipulation, appellant’s convictions would be revealed to the jury when appellant testified. This is a direct appeal from appellant’s conviction; there has been no postconviction hearing. An appellate court will consider an ineffective-assistance-of-trial-counsel claim on direct appeal when the record is sufficient to allow proper review of the claim. Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001). Because there is no record indicating why appellant’s attorney stipulated that appellant was convicted of felony terroristic threats, we cannot determine whether counsel’s representation fell below an objective standard of reasonableness. Therefore, the record is not sufficient to permit us to review appellant’s ineffective-assistance-of-trial-counsel claim.
Appellant argues that “[t]here was no legitimate reason for appellant’s attorney not to insist on stipulating that appellant was a person not entitled to possess a firearm in order to keep the damaging evidence of his prior convictions away from the jury.” But this argument ignores the possibility that, even with the stipulation, the jury would have learned of the convictions when they were used to impeach appellant. Under those circumstances, not only would the jury have learned of the convictions, it would have done so in a manner that could have undercut appellant’s credibility, which could be critically important when appellant was asking the jury to believe his testimony that he did not know that the shotgun was in his vehicle.
Appellant also argues that his attorney’s (1) inquiry into his terrorist-threats conviction, (2) failure to object to the prosecution’s references to his criminal record, (3) failure to object to the jury instructions, and (4) ineffectual closing argument, all constitute ineffective assistance of counsel. But because the record does not indicate any reason for counsel’s actions, it is not sufficient to permit us to review any of these ineffective-assistance-of-counsel claims.
2. Repeated references to felon status
The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to-error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted); see also Minn. R. Crim. P. 31.02 (plain errors may be considered on appeal even though they were not brought to the district court’s attention).
Appellant argues that “[e]ven though defense counsel did not request an appropriate stipulation or object to any of the extensive mention of appellant’s felony status,” the trial court committed plain error when it permitted repeated references to appellant as a felon, a repeat felon, and a violent felon because a defendant in a prosecution for felon in possession of a weapon has a right to keep evidence of prior convictions from the jury by means of a stipulation.
But appellant’s argument is based on an incorrect premise. Not every defendant in a prosecution for felon in possession of a weapon has a right to keep evidence of prior convictions from the jury by means of a stipulation. As we have already discussed, under Davidson, even if a defendant stipulates that he is ineligible to possess a weapon, evidence of the defendant’s prior convictions may still be admissible under Minn. R. Evid. 609 if the defendant testifies. Davidson, 351 N.W.21d at 11. Because appellant testified, he did not have a right to automatically keep evidence of prior convictions from the jury by means of a stipulation.
Consequently, before reviewing any decision to permit references to appellant’s felon status, we would have to conclude that it was plain error to permit references to appellant’s felon status after appellant stipulated that he was convicted of felony terroristic threats. For purposes of plain-error analysis, “‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). Appellant has cited no authority that indicates that it is error to permit references to a stipulated fact. Absent any authority indicating that a stipulated fact may not be referred to at trial, we conclude that permitting references to appellant’s felon status after appellant stipulated that he had been convicted of a felony was not a “clear” or “obvious” error. Because there was not plain error, and appellant did not object to the references to his felon status that he now claims were erroneously admitted, we will not review the alleged errors.
3. Pro se supplemental brief
In a pro se supplemental brief, appellant cites inconsistencies in Pitzen’s testimony and contends that Pitzen committed perjury. “Deciding the credibility of witnesses is generally the exclusive province of the jury.” State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999); see also State v. Hanson, 286 Minn. 317, 334-35, 176 N.W.2d 607, 618 (1970) (inconsistencies in a witness’s testimony “are a sign of the fallibility of human perception--not proof that false testimony was given at the trial”). The jury heard Pitzen’s testimony and apparently concluded that Pitzen was credible.
Appellant also asserts that his rights were violated because neither he nor anybody else was able to view photographs or a videotape that Pitzen referred to during his testimony. But appellant does not explain what right he had to view these items or why he was not able to do so. An assignment of error based on mere assertion and not supported by argument or legal authority is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection. State v. Quick, 659 N.W.2d 701, 718 (Minn. 2003).
Appellant also argues that Pitzen did not have probable cause to search his vehicle. But appellant stipulated at trial that the stop and the search of the vehicle were legal.
Finally, appellant argues that his attorney’s investigation and preparation for trial were inadequate. But because there has been no postconviction hearing, the record is not sufficient to permit us to review any of these ineffective-assistance-of-counsel claims. Voorhees, 627 N.W.2d at 649.
 At trial, appellant stipulated that the stop and the search were legal.
 Appellant argues that the prosecutor’s question impermissibly sought evidence about his 1982 burglary conviction, which is not admissible under the ten-year limit in Minn. R. Evid. 609(b). However, appellant was also convicted of burglary in 1999. It is not clear which burglary conviction the prosecutor was referring to.
 The supreme court held, however, that the error was not so prejudicial as to require reversal. Davidson, 351 N.W.2d at 12.
 As in Davidson, the defendant in State v. Allen, 375 N.W.2d 82, 84 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985), did not testify. Allen is the decision that the district court brought to the attention of counsel before trial.