This opinion will be unpublished and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

A04-826

 

State of Minnesota,

Respondent,

 

vs.

 

Jason E. Hanks,

Appellant.

 

Filed April 12, 2005

Affirmed

Kalitowski, Judge

 

Becker County District Court

File No. KX-03-885

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

 

Joseph A. Evans, Becker County Attorney, 910 Lincoln Avenue, P.O. Box 476, Detroit Lakes, MN 56502-0476

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jason Hanks, who was convicted of two counts of felony first-degree driving while impaired, argues that (1) the district court erred in admitting two prejudicial statements in the record; and (2) the White Earth Tribal Police Officer lacked the authority to stop, detain, or search appellant and therefore, evidence derived from the stop was improperly admitted against appellant.  We affirm.

D E C I S I O N

I.

            Appellant argues that two statements regarding appellant’s driving record should have been excluded because, prior to trial, appellant pleaded guilty to driving-after-cancellation and stipulated to his cancellation as an element of felony first-degree DWI to avoid the jury hearing evidence concerning his driving record.  At trial, the police officer testified without objection that appellant was “cancelled.”  And when questioned why he towed appellant’s vehicle, the officer said:  “Reason for that was I did not believe the vehicle belonged at that residence to begin with, and also [appellant’s] driving record, it stated for his—.”  Appellant’s objection to the second statement was sustained so the officer was not permitted to finish his sentence.

            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 the evidence.  Id. at 561. 

            After a defendant stipulates to an element of an offense, this court has applied a harmless error test to determine if evidence of a stipulated element is improperly admitted.  See State v. Clark, 375 N.W.2d 59 (Minn. App. 1985).  In Clark, the defendant was charged with and convicted of aggravated DWI, aggravated violations, and unlawful acts.  Id. at 60.  The district court accepted defendant’s stipulation to a prior DWI violation for purposes of the aggravated DWI but refused to accept defendant’s stipulation to a prior license revocation for purposes of the aggravated violations statute.  Id. at 61.  The state objected to the latter stipulation because it would remove from the jury’s consideration two of the three elements of the offense.  Id.  The district court then permitted the state to submit evidence of both the prior DWI conviction and the license revocation in connection with the aggravated violations charge.  Id.

            This court focused on the “severely prejudicial effect of evidence of prior DWI convictions” and noted the Berkelman rule:

If a defendant is willing to concede that he has a prior DWI conviction, we fail to see why the evidence, with its great potential for being improperly used, should be admitted, unless, of course, the evidence is admissible under Rule 404(b) as evidence relevant to some disputed issue.

 

Id. at 62 (quoting State v. Berkelman, 355 N.W.2d 394, 397 n.2 (Minn. 1984)).  We then cautioned that “[i]f the jury is informed that a defendant charged with driving under the influence had a revoked license at the time, we think there is serious risk that the jury will infer the defendant has a prior DWI and utilize that inference in determining the guilt of the defendant.”  Id.  We concluded that since the defendant did not take a breath test, the evidence of intoxication was only from officer observation.  Id. at 63.  Thus, the error in admitting the evidence was not harmless and we reversed and remanded for a new trial.  Id.

            Here, the officer testified that appellant was “cancelled.”  Appellant’s attorney did not object but in light of Clark, the testimony was improper because of the strong inference that appellant’s cancellation was due to a prior DWI conviction.  However, as in Clark, appellant is not automatically entitled to reversal.  Appellant must also show that he was so prejudiced by the admission of the officer’s “cancelled” testimony that he did not receive a fair trial.  See State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998). 

            From the record, we cannot say that this improper evidence so prejudiced appellant that he did not receive a fair trial.  The prosecution submitted substantial evidence of appellant’s guilt:  the responding police officer testified as to appellant’s appearance and behavior; and the deputy that administered the blood alcohol test testified as to appellant’s test results, which indicated that he was well over the legal limit for intoxication.  Appellant presented no evidence, but cross-examined both witnesses.  No objections were made from either side during closing arguments.

            And appellant was not prejudiced by the second challenged statement because the officer was cut off before he could complete his remark and thus, the jury only heard a vague statement regarding the reason the officer towed appellant’s car.  We conclude that appellant has not established that he was denied a fair trial.

II.

 

            Appellant also argues that the officer of the White Earth Tribal Police Force was not authorized to stop or arrest appellant because the law-enforcement arrangement between the state and the White Earth Tribal Police Force violates federal law or is otherwise unconstitutional and that all evidence derived from the stop, including the officer’s testimony, must be suppressed.

            The state argues that appellant waived the issue by failing to raise it at the omnibus hearing under Minn. R. Crim. P. 8.03.  But we need not reach the issue of waiver because the Minnesota Supreme Court recently held that the law-enforcement arrangement between the state and the White Earth Tribal Police Force does not violate federal law or the constitution.  State v. Manypenny, 662 N.W.2d 183 (Minn. App. 2003), aff’d, 682 N.W.2d 143 (Minn. 2004).  In light of Manypenny, we conclude that the district court did not err in admitting the evidence derived from the officer’s stop, search, and seizure of appellant and appellant’s vehicle.

            Affirmed.