This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


David S. Hobbs,


Filed May 1, 2007


Minge, Judge


Hennepin County District Court

File No. 04048710



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


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


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge

On remand of State v. Hobbs, 713 N.W.2d 884 (Minn. App. 2006) for reconsideration in light of State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), and State v. Kendall, 723 N.W.2d 597 (Minn. 2006),  appellant David Hobbs reiterates arguments that our earlier opinion did not address: (1) that appellant was denied due process because the state gave him insufficient notice of its intent to seek an enhanced sentence; (2) that the district court erred by not accepting his offer to stipulate and by instructing the jury that burglary is a violent crime; and (3) that the district court abused its discretion in failing to instruct the jury on the definition of the term “danger to public safety.”  713 N.W.2d at 890.  Because we conclude that there was not a denial of due process, an error, or an abuse of discretion, we affirm.


1.         Sufficiency of Notice of Basis for Enhanced Sentence

            Whether an individual was denied due process is reviewed de novo.  Plocher v. Comm’r of Pub. Safety, 681 N.W.2d 698, 702 (Minn. App. 2004).   Appellant claims he was denied due process because he did not receive adequate notice of the statutory basis on which the state would seek enhancement of his sentence.[1]  Allegations of denial of due process based on lack of notice of the factors to be used for enhancement of a sentence are reviewed under a harmless-error standard. State v. Chauvin,723 N.W.2d 20, 30 (Minn. 2006). 

Here, the transcript reflects that, at the hearing held two days before trial, the prosecutor told the district court and appellant’s attorney that the state would seek enhancement of appellant’s sentence under “Minnesota statute [section] 1095.”  The prosecutor specified that “Under the [applicable] section of the statute . . ., this conviction . . . would need to be the third or greater of a violent felony.”   The prosecutor also said, “[Appellant] under [section] 1095 clearly has at least two prior convictions” and referred to “the application of [section] 1095.”  Finally, the prosecutor offered to amend the complaint “to confirm what has been undisputed all along, which is that [appellant] has a great many prior convictions that I intend to try to get in through the application of [section] 1095.”  Appellant’s counsel did not ask for a precise citation to the relevant portion of the statute.  In fact, when he was asked for a response to the prosecutor’s offer, appellant’s counsel replied, “Nothing further.”[2]  Thus, it does not appear that there is a basis in the record for the claimed lack of notice.

            Moreover, even if the prosecution did err by not providing appellant with adequate notice of the specific subdivision of the section under which it sought to enhance his sentence, that error was harmless.  The transcript clearly shows that the prosecutor indicated to appellant’s counsel the ground for the proposed sentence enhancement.  In this circumstance, we conclude that there is no basis for reversal.

2.         Rejected Stipulation

            Appellant offered to stipulate that he had “two or more prior convictions for violent crimes” required for conviction under Minn. Stat. § 609.1095, subd. 2, if the district court would refrain from instructing the jury that first-degree burglary is defined by statute as a violent crime.  The district court rejected appellant’s offer, stating that, in any event, it would advise the jury that first-degree burglary is a violent crime because the jury needed this information to determine whether appellant met the “danger to public safety” requirement for conviction under Minn. Stat. § 609.1095, subd. 2.  Appellant then withdrew his offer to stipulate. 

This court has reviewed alleged errors regarding a district court’s decision to accept or reject a stipulation to an element of an offense under a harmless-error analysis.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).  In that analysis, if there is error, this court examines “all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.”  State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989).  If the error might have prompted a harsher verdict, the defendant receives a new trial.  Id.; State v. Wemyss, 696 N.W.2d 802, 809-10 (Minn. App. 2005) (holding that, after defendant stipulated to being required to register as a predatory offender, district court erred in admitting evidentiary references and allowing prosecutor to refer to defendant as “predatory offender” and “sex offender,” but that error was harmless because jury’s verdict was surely unattributable to it), aff’d on remand (Minn. App. Jan. 3, 2006), review denied (Minn. March 28, 2006).

Stipulations generally involve not the district court’s duty to instruct the jury but rather the state’s right to offer evidence.  See, e.g., State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (“[A] defendant should not be able to unilaterally control the issue of the need for relevant evidence by offering to stipulate . . . .”).  We review these determinations for abuse of discretion.  See, e.g., State v. Durfee, 322 N.W.2d 778, 785-86 (Minn. 1982) (holding that district court did not abuse its discretion by allowing proof of victim’s injuries, including photographs, regardless of defendant’s offer to stipulate that victim suffered great bodily harm).  Especially in aggravated DWI and felon-in-possession cases, we have concluded that district courts have abused their discretion in failing to accept stipulations to minimize a jury’s prejudicial exposure to evidence of a defendant’s past crimes.  See, e.g., State v.Allen, 375 N.W.2d 82, 84 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985); State v. Berkelman, 355 N.W.2d 394, 397 (Minn. App. 1984).  However, a defendant’s offer to stipulate does not eliminate the state’s right to offer evidence, especially evidence relevant to issues not covered by the stipulation.  Davidson, 351 N.W.2d at 10.  While there appears to be no caselaw concerning the effect of a defendant’s offer to stipulate on a district court’s right to instruct the jury, the caselaw on stipulation cited above supports the conclusion that a defendant’s offer to stipulate does not foreclose the district court’s discretion to instruct the jury, especially if the instruction is relevant to matters not covered by the stipulation.

Appellant argues that the fact that first-degree burglary is defined as a “violent crime” is not relevant to a determination of whether a person convicted of first-degree burglary would be a “danger to public safety.”  However, appellant was offering to stipulate that his two prior convictions were for crimes of violence.  His apparent goal was to keep any further information about those convictions and their similarity to his current offense from the jury.  But Minn. Stat. § 609.1095, subd. 2(2), provides that a finding of dangerousness to public safety may be based on “the offender’s past criminal behavior.” Therefore, the jury was entitled to information that appellant’s past convictions were for burglary or attempted burglary.  Appellant’s offer to stipulate did not eliminate the district court’s right to instruct the jury on information to be considered in establishing one element of appellant’s crime.

Appellant further argues that refusing to accept his offer to stipulate and instructing the jury that first-degree burglary is defined as a “violent crime” was prejudicial because the jury, having already convicted him of first-degree burglary, was more apt to find he was a danger to public safety and convict him under Minn. Stat.         § 609.1095, subd. 2.  This is a complex argument.  We do not explore all the details in this opinion.  However, we observe that if appellant’s offer to stipulate had been accepted, the jury would have known he had two prior convictions for crimes of violence. As previously noted, the prosecution was then free to introduce evidence of the details of appellant’s record on crimes of violence.  See Minn. Stat. § 609.1095, subd. 2(2).  The jury’s knowledge of those details would undoubtedly contribute to a jury’s finding of dangerousness to the public safety.  In addition, appellant conceded on cross-examination that his burglaries would have been “a frightening or harmful experience” for the people whose homes he entered.  Such a record furnished the jury with an extremely strong basis for concluding that appellant was a danger to public safety. 

Appellant asserts that “The fact that the definition [of first-degree burglary as a violent crime] came not from the prosecutor . . . but from the district court judge in her instructions on the law only magnified the unfair prejudice.”  However, this judge-prosecutor distinction assumes that making the definitional link was unfairly prejudicial and disregards the fact that appellant’s criminal history and the law defining first-degree burglary as a violent crime are uncontested.  On this record, appellant’s argument is not persuasive.

We conclude that the district court did not err or abuse its discretion in rejecting appellant’s offer to stipulate.

3.         Failure to define “danger to public safety”

            The district court instructed the jury that it was to determine if appellant was a “danger to public safety.”  Appellant argues that the district court erred by failing to define “danger to public safety” for the jury.[3]  Aharmless error analysis also applies to allegations of error in jury instructions.  See, e.g., State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (“We evaluate the erroneous omission of a jury instruction under a harmless error analysis.”).

            Definitions are not necessary unless the key words or phrases in the instruction would confuse or mislead a jury or allow undue speculation.  See, e.g., Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979) (jury instruction need not define “great bodily harm”; jury need not be given detailed definitions of elements of a crime unless instructions would mislead jury or allow it to speculate over the meaning of the elements); State v. Schmitz, 559 N.W.2d 701, 705 (Minn. App. 1997) (rejecting argument that jury instruction on pattern harassment did not include definition of “pattern” because defendant’s conduct would fit under “any reasonable definition” of the term), review denied (Minn. Apr. 15, 1997); State v. Grube, 531 N.W.2d 484, 491 n.11 (Minn. 1995) (same).  Here, the jury heard that appellant had repeatedly been convicted of entering other people’s houses in order to burglarize them and that appellant himself acknowledged that his burglaries were “a frightening or harmful experience” for the victims.  The jury’s task in developing its own definition of “danger to public safety” and applying it to appellant’s history was not unduly speculative.  The word, “danger,” and the phrase, “public safety,” are commonly used.  There is no claim that they have a special meaning in criminal law.  In these circumstances, we conclude that it was not plain error for the district court to charge the jury without defining the phrase “danger to public safety.”

Appellant relies on State v. Ihle, 640 N.W.2d 910 (Minn. 2002), to argue that the district court, sua sponte, should have defined “danger to public safety” and provided the statutory information. But Ihle is distinguishable.  There, the instruction failed to indicate that caselaw had given the statutory language a narrow construction and thus materially misstated the law.  Id. at 917.  Here, there is not a special definition of the key words and phrases that has been developed by caselaw or otherwise. 


[1] Appellant originally argued that the state erred by not indicating in the complaint its intention to have him sentenced as a habitual offender.  He now concedes that, under State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006), the state need not specify enhancement factors in a complaint. 

[2] After trial, appellant’s counsel claimed not to know which subdivision of Minn. Stat.    § 609.1095 (2004) applied.  This claim is unpersuasive.  Only subdivision 2, pertaining to dangerous offenders committing a third violent crime, could possibly have been relevant to appellant’s situation because subdivision 3 pertains to mandatory sentences, not sentence enhancement, and subdivision 4 pertains to offenders committing a sixth felony without any need for a finding of dangerousness or violence, the key factors in this appeal. 

[3] As a threshold matter, this argument may not be properly before the court: appellant concedes that he did not propose this instruction to the district court.  Failure to propose an instruction generally operates as a waiver of the right to appeal its omission.  State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984).  Appellant contends, however, that the omission was a plain error and the instructions therefore contained fundamental errors of law, so this court may review it.  See State v. White, 684 N.W.2d 500, 508 (Minn. 2004) (if a jury instruction contains plain error or is based on a fundamental error of law, the right to appellate review is not waived).  In the interest of completeness, we will review the issue.