This opinion will be unpublished and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

A03-14

 

 

State of Minnesota,

Respondent,

 

vs.

 

Terry Lee Williams,

Appellant.

 

 

Filed November 25, 2003

Affirmed
Klaphake, Judge

 

Mower County District Court

File No. K2-02-827

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Patrick A. Oman, Mower County Attorney, Jonathan P. Olson, Assistant County Attorney, 201 1st Street Northeast, Austin, MN  55912 (for respondent)

 

Lawrence W. Pry, Assistant State Public Defender, 445 Minnesota Street, Suite 900, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Klaphake, 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

KLAPHAKE, Judge

            Appellant Terry Lee Williams challenges his conviction for gross misdemeanor assault, alleging that the district court erred by admitting into evidence a stipulation to appellant’s prior conviction for domestic assault without obtaining his personal waiver of his right to a jury trial on that issue.  Because appellant failed to object at trial and to show that he was prejudiced by the stipulation, we affirm.

D E C I S I O N

            Where it is an element of the charged offense, a defendant may stipulate to the existence of a prior conviction.  See, e.g., State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984) (gross misdemeanor DWI); State v. Davidson, 351 N.W.2d 8, 12 (Minn. 1984) (felon in possession of handgun).  “Minnesota courts have recognized that a district court must accept a defendant’s stipulation to prior convictions in certain cases unless the facts underlying the prior conviction are relevant to some disputed issue.”  State v. Matelski, 622 N.W.2d 826, 832 (Minn. App. 2001), review denied (Minn. May 15, 2001).  In essence, by stipulating to one element of an offense, a defendant waives his right to trial by jury on that element, permitting him to keep unduly prejudicial evidence away from the jury so as not to invite improper speculation.  Berkelman, 355 N.W.2d at 396-97. 

            A defendant’s right to a jury trial includes the right to be tried on each and every element of the charge.  State v. Bluhm, 457 N.W.2d 256, 260 (Minn. App. 1990), aff’d in prt, rev’d in prt on other grounds, 460 N.W.2d 22, 24 (Minn. 1990).  Although a defendant may agree to submit a case on stipulated facts by waiving his trial rights, such a waiver must be made personally by the defendant and not by defense counsel.  State v. Halseth, 653 N.W.2d 782, 785 (Minn. App. 2002).  Based on the record before us, appellant did not make an unequivocal waiver of his right to jury trial on the issue of his prior conviction.

            Appellant made no objection to the district court’s instruction that the parties had stipulated to the existence of the prior conviction.  A failure to object generally means that an alleged error has been waived.  State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002), review denied (Minn. Dec. 17, 2002).  A waived issue may nevertheless be considered if it involves plain error affecting substantial rights of the defendant.  Id.  Failure to obtain a personal waiver of the fundamental right to have a jury decide each and every element of the charged offense may be plain error, but appellant must demonstrate that this failure affected his substantial rights by showing that the fairness or integrity of the proceedings was compromised.  See id. at 202-03. 

            In the usual case, a defendant objects because the district court has refused to permit a stipulation to an element of the charge that would remove potentially prejudicial evidence from the jury’s consideration.  See, e.g., Berkelman, 355 N.W.2d at 395; Davidson, 351 N.W.2d at 10; Matelski, 622 N.W.2d at 831-32.   From a review of the record here, it is clear that the district court sought to treat the prior conviction in a way that would minimize prejudice to appellant.  The state was prepared with a certified copy of the prior conviction.  Appellant himself did not deny the prior conviction, but merely clarified that it did not involve the same victim.  Under these circumstances, the district court’s admission of the stipulation did not compromise the fairness or integrity of the proceedings and was therefore not erroneous.

            We affirm appellant’s conviction.

            Affirmed.