This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Nathan Wayne Carr,
Filed January 30, 2007
Clay County District Court
File No. K8-05-476
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian J. Melton, Clay County
Attorney, Jenny M. Samarzja, Assistant County Attorney,
John M. Stuart, State Public
Defender, Susan J. Andrews, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of first-degree refusal to submit to a chemical test, felon in possession of a firearm, and obstructing legal process. Appellant argues that (1) his refusal-to-test conviction must be reversed because the district court improperly allowed two prior impaired-driving incidents that took place in North Dakota to be used to enhance appellant’s refusal-to-test charge from a misdemeanor to a felony; and (2) he is entitled to a new trial because the district court allowed the state to impeach him with two prior felony convictions without ruling on the admissibility of the prior-conviction evidence and then failed to give a limiting instruction to the jury regarding the evidence. Because a recent decision of the Minnesota Supreme Court disposes of the first issue and because appellant waived any objection to the admission of the prior-conviction evidence and to the omission of a limiting instruction to the jury, and the district court did not commit plain error, we affirm.
As Carr walked toward his car, which was running, and began to get into the driver’s seat, an officer ordered him to step away from the car and put his hands up, explaining that the officer had received a report that Carr was carrying a gun. Carr claimed not to have a gun and resisted the officer’s attempt to restrain him. Other officers assisted in restraining and handcuffing Carr and searching him, and, in the struggle, one of the assisting officers saw a gun slide out of Carr’s pant leg and onto the ground and saw Carr try to push the gun away with his foot. Several officers testified that Carr was visibly intoxicated at the time. At the police station, Carr was given the implied-consent advisory, stated that he wanted to contact his lawyer, and attempted but failed to do so. He ultimately refused to take a blood, breath, or urine test.
Carr was charged with three offenses: first-degree refusal to submit to a chemical test, in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004); and obstructing legal process, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2004). At a pretrial hearing, Carr stipulated to the fact that he was ineligible to possess a firearm because he had committed a crime of violence in the past ten years. A jury found Carr guilty of all three charges. This appeal follows.
D E C I S I O N
Stat. § 169A.24, subd. 1(1) (2004), provides: “A person who violates section
169A.20 (driving while impaired) [which includes refusal to test] is guilty of
first-degree driving while impaired if the person . . . commits the violation
within ten years of the first of three or more qualified prior impaired driving
incidents.” Carr argues that his
refusal-to-test conviction must be reversed because two of the “qualified prior
impaired driving incidents” used to enhance his refusal-to-test charge from a
misdemeanor to a felony occurred in North Dakota, and North Dakota law does not
recognize the constitutional right that Minnesota law recognizes to consult an
attorney before deciding whether to submit to a chemical test. The district court’s decision to allow Carr’s
After Carr submitted his brief to
this court, the Minnesota Supreme Court released a decision that disposes of
this issue. In State v. Schmidt, 712 N.W.2d 530, the supreme court held that the
defendant’s prior impaired-driving convictions, which occurred in South Dakota,
whose laws do not provide a right to consult an attorney before submitting to a
chemical test, could be used to enhance the defendant’s DWI charge to a felony
because to hold otherwise would allow an impermissible collateral attack on the
At a pretrial hearing, Carr stipulated to the fact that he had committed a crime of violence in the past ten years, which rendered him ineligible to possess a firearm, to preclude the state from mentioning Carr’s prior felony convictions to prove that element of the felon-in-possession charge. The state agreed not to discuss Carr’s prior convictions for that purpose but expressed its intent to use the convictions to impeach Carr if he took the stand. In response, defense counsel stated, “[W]e would anticipate that Mr. Carr would take the stand and we were aware that if he did take the stand that his criminal history would come into play . . . .” Defense counsel did not move to exclude the evidence of Carr’s prior convictions. During its cross-examination of Carr, the state elicited testimony confirming that Carr is a convicted felon, having one conviction of third-degree burglary and one of conspiracy to deliver a controlled substance. Defense counsel did not object to the questioning.
argues that he must be granted a new trial (1) because the state used evidence
of Carr’s two prior felony convictions, despite his stipulation to those
convictions, to impeach him without first obtaining a ruling on the
admissibility of the evidence; (2) because the district court failed to
consider the admissibility of the prior-conviction evidence under Minn. R.
Evid. 609(a) and make findings applying the admissibility factors set forth in State v. Jones, 271 N.W.2d 534 (
preserve his objection to the admission of the prior-conviction evidence, Carr
was required to move to exclude the evidence, object to the evidence when the
state elicited it, or raise the issue before the district court on a motion for
a new trial. Gourd v.
Carr is correct that in State v. Davidson,
351 N.W.2d 8, 11 (
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect . . . .
Unlike the defendant in Davidson, Carr testified, so he was not entitled to keep evidence of his prior convictions from reaching the jury by stipulating to those convictions because they fell within the contemplation of Minn. R. Evid. 609 and therefore within the exception noted in Davidson. It was not plain error for the district court to allow the state to examine Carr regarding his prior felony convictions despite the fact that Carr stipulated to the convictions.
does not dispute that his prior convictions were punishable by more than one
year’s imprisonment or that the convictions fell within the ten-year time
limitation imposed in rule 609(b). He
does argue that the district court failed to apply the State v. Jones factors to
ensure that the evidence of his prior convictions was more probative than prejudicial,
as required by rule 609(a). Carr relies
on the language of a committee comment to rule 609(a) to argue that the
district court’s failure to make findings regarding the Jones factors when it allowed the evidence of Carr’s prior
convictions warrants a new trial. But Carr
quotes only half a paragraph of the comment when he asserts that the district
court “should make explicit findings on the record as to the factors considered
and the reasons for admitting or excluding the evidence.”
Carr failed to preserve the issue by objecting to the admission of the evidence,
we review only for plain error affecting substantial rights. Strommen, 648 N.W.2d at 686. A district court’s failure to
place a Jones analysis on the record
does not warrant reversal if the appellate court applies the Jones factors itself and determines that
the impeachment evidence was properly admitted.
the Jones factors to Carr’s prior
convictions supports the admission of the impeachment evidence. First, Carr’s prior convictions had
impeachment value because they helped “the jury see the ‘whole person’ of the
defendant and better evaluate his . . . truthfulness.” Swanson,
707 N.W.2d at 655. Second, Carr’s prior
convictions took place within the past ten years. Third, the prior convictions are entirely
dissimilar to the charges of which Carr was convicted here, which decreases the
likelihood that they were more prejudicial than probative and weighs in favor
assertion that the district court abused its discretion when it failed to give
a limiting instruction to the jury regarding Carr’s prior convictions is also not
properly before us because Carr proposed no limiting instruction and did not object
to the omission of a limiting instruction.
“[A] defendant’s failure to propose specific jury instructions or to
object to instructions before they are given to the jury generally constitutes
a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (
raises several arguments in his pro se supplemental brief, but none warrants
reversal of his convictions. To the
extent that Carr’s pro se arguments duplicate the arguments that his attorney
makes on appeal, we have addressed them above.
Additionally, Carr argues that police officers improperly searched him
without a warrant. Generally, police
officers must secure a warrant before searching an individual. Coolidge