This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dale William Sorenson,
Filed February 1, 2005
Affirmed in part, reversed in part, and remanded
Polk County District Court
File No. K8-03-1250
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Greg Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
Melissa Sheridan, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant Dale William Sorenson was convicted of one count of felony harassment, Minn. Stat. § 609.749, subd. 5 (2002); one count of felony fifth-degree assault, Minn. Stat. § 609.224, subds. 1(2), 4(b) (2002); and one count of terroristic threats, Minn. Stat. § 609.713, subd. 1 (2002). The district court sentenced appellant on the harassment conviction to a 65-month term, an upward durational departure from the presumptive 43-month sentence, based on a finding that appellant was a career criminal under Minn. Stat. § 609.1095, subd. 4 (2002). Appellant challenges his convictions and sentence, arguing that (1) the district court erred by permitting the state to introduce evidence of appellant’s prior convictions; (2) he was deprived of his right to a fair trial by statements made by the prosecutor during opening and closing arguments that referred to the victim’s “cry for help”; and (3) the district court erred by departing upwardly from the presumptive sentence without having a jury consider the facts supporting the departure.
Because appellant failed to object and neither the introduction of appellant’s convictions or the prosecutor’s statements were plain error, we affirm appellant’s convictions. But because appellant was entitled to have a jury consider the facts supporting the upward durational departure, we reverse appellant’s sentence and remand to the district court. See State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2005) (applying Blakely v. Washington, 124 S. Ct. 2531 (2004) to the Minnesota Sentencing Guidelines).
D E C I S I O N
I. Introduction of Prior Offenses
Appellant was charged with offenses that include the fact of prior offenses as an element of the offense. For fifth-degree felony assault, the state is required to prove that the current offense occurred within three years of the first of two or more previous qualified domestic violence-related offense convictions. Minn. Stat. § 609.224, subd. 4(b) (2002). A “qualified domestic violence-related offense” includes fourth- and fifth-degree assault. Minn. Stat. § 609.02, subd. 16 (2002). For felony harassment, the state must prove that the defendant has engaged in a pattern of harassing conduct. Minn. Stat. § 609.749, subd. 5(a) (2002). A “pattern of harassing conduct” includes two or more offenses within a period of five years, including fifth-degree assault. Id., subd. 5(b).
Far from objecting, appellant stipulated that the district court could read the dates and facts of the two prior convictions into the record. Appellant now argues that the court should have removed this information from the jury’s consideration and that it was plain error for the court to present this information to the jury.
The district court’s evidentiary rulings are reviewed for abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). If the defendant fails to object to the admission of the evidence, he or she waives the right to appeal the district court’s ruling unless it is plain error that affected the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). In order to overcome the waiver, the error must be “so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object – and thereby present the trial court with an opportunity to avoid prejudice – should not forfeit his right to a remedy.” State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (quotation omitted).
A defendant has a limited right to stipulate to certain evidence. See State v. Carnahan, 482 N.W.2d 793, 795 (Minn. App. 1992) (“Normally, a criminal defendant’s judicial admission or offer to stipulate does not take away the state’s right to offer evidence on a point.”). The right to remove an element of the offense from the jury by stipulation is not absolute, but is an exception to the general rule that the state has the right to offer evidence despite a defendant’s offer to stipulate. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002). This exception is made when the potential for unfair prejudice substantially outweighs the probative value of the evidence. Id. It is usually allowed when only the defendant’s status is at issue, e.g., felon, prior DWI, and the stipulation can establish that status without underlying facts. Id. at 562. But where the evidence has value beyond the stipulation, the state is generally permitted to offer it. Id. at 561.
In Stillday, the defendant, like appellant here, was charged with a pattern of harassing conduct, Minn. Stat. § 609.749, subd. 5, based on prior acts of harassment and assault. Id. at 560. Despite the defendant’s offer to stipulate to the fact of the convictions, the district court permitted the state to enter detailed evidence about the factual basis for the prior convictions. Id. In affirming, this court concluded that more than the fact of a prior conviction is necessary to prove the particular charge because a jury nevertheless would need to determine if the victim had been terrorized by the pattern of harassment. Id. at 562.
Here, unlike Stillday, appellant affirmatively agreed by stipulation that the prior convictions could be presented to the jury, without the underlying factual basis; appellant did not seek to prevent the state from presenting the fact of conviction, nor did he stipulate to withdrawing that element from the jury’s consideration. Under these circumstances, we conclude that the district court did not commit plain error by reading the stipulation to the jury. See State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998) (concluding that failure to object to or stipulate that fact of conviction should be kept from the jury resulted in waiver of right to challenge admission of that evidence), review denied (Minn. July 16, 1998).
II. Prosecutorial Misconduct
This court reviews allegations of prosecutorial misconduct to determine whether the defendant was deprived of his right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). When the defendant fails to object, the issue of prosecutorial misconduct is deemed waived, unless the misconduct is unduly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Where no objection is made, the issue is reviewed under a plain error standard, “asking whether the alleged conduct was so clearly erroneous under applicable law and prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). Nevertheless, a new trial will not be granted if the error is harmless beyond a reasonable doubt. Id. at 301-02. Where the misconduct is serious, it is harmless beyond a reasonable doubt if the verdict is surely unattributable to the error; for less serious misconduct, it is harmless beyond a reasonable doubt if it did not play a substantial part in influencing the jury. Id. at 302.
Appellant objects to the prosecutor’s references in opening and closing statements to the victim’s “cry for help.” The objectionable comments must be considered in the context of the entire argument. Johnson, 616 N.W.2d at 729. Where, as here, the statements are just an isolated part of an extensive argument, this militates against finding plain error. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (opining that improper argument consisting of four pages out of a 45-page argument that was otherwise unobjectionable was not reversible error). In Washington, the supreme court considered other factors as well: (1) the defendant failed to object or seek a curative instruction; (2) the district court instructed the jury that the arguments of counsel were not testimony and warned them against sympathy, passion or prejudice; (3) the jury convicted on some charges and acquitted on others, leading the court to believe that the jury was not inflamed by passion; and (4) the strength of the evidence. Id. All of these factors are present in this matter.
Although there are distinct ethical boundaries that limit the content of prosecutorial argument, the courts “have never so constrained prosecutors as to require them to make a colorless closing argument.” State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). Viewed in the context of the entire argument, we cannot conclude that the isolated statements made by the prosecutor influenced the jury’s verdict. We therefore conclude that appellant was not deprived of his right to a fair trial.
Appellant was sentenced to 65 months, an upward durational departure from the presumptive sentence of 43 months. The district court based this departure on a finding that appellant met the requirements of the career offender statute, Minn. Stat. § 609.1095, subd. 4 (2002). Appellant argues that the district court erred in imposing this upward durational departure without jury findings, based on Blakely v. Washington, 124 S. Ct. 2531 (2004). The Minnesota Supreme Court has affirmed the application of Blakely to the sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2005). Because, under the reasoning of Blakely, appellant should have been afforded a jury hearing before enhancement of his sentence, we reverse his sentence and remand to the district court for sentencing in accordance with Blakely.
Affirmed in part, reversed in part, and remanded.