This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Chebon Jackson Yahola,
Filed August 16, 2005
Hennepin County District Court
File No. 03091594
Mike Hatch, Attorney General,
John M. Stuart, State Public
Defender, Lydia Villalva Lijo, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
O P I N I O N
On December 13, 2003, R.R. shot T.E. in the arm during a party. Pursuant to Minn. Stat. § 624.713, subds. 1(b), 2 (2004), the state charged appellant Chebon Yahola with being a prohibited person in possession of the firearm that R.R. used to shoot T.E. During trial, the parties stipulated that appellant is legally prohibited from possessing a firearm; but the record does not demonstrate that appellant agreed to the stipulation orally on the record or in writing.
Before the state rested, the district court read the parties’ stipulation to the jury: “Both parties stipulate that the defendant is legally prohibited from possessing a handgun.” After reading the stipulation, the district court explained, “[t]his stipulation is evidence for your consideration just like any other evidence in the case.” Appellant did not object to the district court’s reading of this stipulation to the jury. After closing arguments, the district court again instructed the jury that “the parties have stipulated that [appellant] is a legally prohibited person from possessing a firearm.”
Appellant has a prior felony conviction from 2002 for simple robbery. The district court ruled that the state could use appellant’s prior felony conviction to impeach appellant if he testified. Appellant chose not to testify. The jury found appellant guilty of being a prohibited person in possession of a firearm. This appeal follows.
Appellant argues that he is entitled to a new trial because the district court erred by failing to secure appellant’s waiver of his right to a jury trial on an element of the charged offense either orally on the record or in writing.
Appellant argues that he is entitled to a new trial because the district court never determined whether appellant personally agreed to waive his right to a jury trial on a charged element before instructing the jury that the parties had stipulated that appellant was legally prohibited from possessing a firearm.
The state concedes that, under State v. Wright, the district court erred by failing to secure an oral or written waiver from appellant before permitting the stipulation at trial of an element of the charged offense. We agree with both parties that the district court erred by failing to secure appellant’s waiver of his right to a jury trial because there is no evidence in the record that appellant personally waived this right orally or in writing.
We next consider the state’s
argument that the district court’s failure to properly secure appellant’s
waiver was not plain error, or alternatively, that it was not prejudicial
error. The state argues that because appellant
did not object to the stipulation, we should apply the plain-error test under State v. Griller, 583 N.W.2d 736, 740 (
The Wright court noted that we will find a constitutional error prejudicial
if there is “a reasonable possibility” that the error might have contributed to
Here, applying the harmless-error test, we conclude that the verdict was surely unattributable to the error. By accepting the stipulation, the district court sought to treat appellant’s prior conviction in a way that would minimize prejudice to appellant. The error was not prejudicial because appellant benefited from keeping the knowledge of his prior robbery conviction from the jury. Appellant did not deny his prior conviction and presumably chose not to testify in order to prevent the jury from learning of his prior felony conviction. On this record, there is no reasonable likelihood that the verdict would have been different had the jury not been instructed to consider the stipulation. Thus, the error was harmless beyond a reasonable doubt.