This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-531

State of Minnesota,

Respondent,

vs.

Nancy Ann Olson,

Appellant.

Filed January 14, 1997

Affirmed

Amundson, Judge

St. Louis County District Court

File No. K194600402

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street,, Suite 500, St. Paul, MN 55103; Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue, Suite 501, Duluth, MN 55802 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

Amundson, Judge

Nancy Ann Olson appeals from her judgments of conviction of two counts of wrongfully obtaining public assistance. She argues that: (1) the prosecution is barred by the statute of limitations on prosecutions; (2) the trial court clearly abused its discretion in admitting evidence of her prior conviction for welfare fraud; and (3) the prosecutor committed misconduct during closing argument. We affirm.

FACTS

In 1989, appellant Nancy Ann Olson was convicted of welfare fraud and placed on probation for failure to report employment income.

On June 10, 1994, a complaint was filed charging Olson with two counts of welfare fraud. This complaint was based on the allegations that: (1) Olson was living in Superior, Wisconsin, and thus was not eligible to receive welfare benefits because she was not a Minnesota resident; (2) she received a $15,000 insurance settlement for a 1988 car accident in which she was injured; and (3) she failed to report 22 of 39 checks she received from employment at the Anchor Bar in Superior.

A jury found Olson guilty of both counts. The trial court sentenced Olson to: (1) 13 months and 15 months (concurrent) stayed; (2) five years probation; (3) six months incarceration in the St. Louis County jail; (4) restitution in the amount of $40,361.98; and (5) two fines of $500 each. This appeal followed.

D E C I S I O N

I. Statute of Limitations on Prosecutions

Olson argues that her convictions should be reversed because the statute of limitations on prosecutions expired before the complaint was filed.

The state contends that Olson did not raise this argument before the trial court and thus she waived the claim. Olson does not deny that she did not raise the issue below, but claims that she did not waive the issue.

The state correctly notes that this court has held that a statute of limitations defense is not jurisdictional. See State v. Johnson, 422 N.W.2d 14, 16 (Minn. App. 1988), review denied (Minn. May 16, 1988). This court stated that "[i]f the defense were jurisdictional, a defendant could raise it for the first time on appeal." Id.

Olson argues that Johnson is distinguishable because the defendant in that case pleaded guilty, and thus waived several constitutional rights. However, this court noted in Johnson that "[t]he clear consensus, and the modern trend, holds that the defense is in the nature of an affirmative defense, and hence is nonjurisdictional." Id. Thus, the holding does not depend on the fact that the case involved a guilty plea, but rather depends on the nature of the defense--i.e., it is an affirmative defense. In addition, some of the cases that the court cited in support of its holding did not involve guilty pleas. See id.

Thus, because Olson did not raise the statute of limitations defense below, we will not consider the issue further.

II. Admission of Spreigl Evidence

Olson argues that the trial court clearly abused its discretion in admitting evidence of her 1989 conviction for welfare fraud.

Admission of Spreigl evidence rests within the sound discretion of the trial court and the trial court's ruling will not be disturbed absent a clear abuse of discretion. State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990).

Olson argues that the evidence was not relevant to show absence of mistake because she never put forth a defense of mistake.

In her short opening argument, Olson's attorney stated:

Nancy reported her earnings. She worked at the Anchor Bar. She reported those earnings. If she forgot to report some earnings, that was a mistake. Committing a mistake doesn't mean that you committed a crime. * * * [A]t the conclusion of this case we are going to ask for one verdict and one verdict only to both counts, and that is a not guilty. The reason being--and it's three issues and it's three things you have to keep in mind throughout the case: Nancy Olson is a resident of Minnesota; Hermantown to be exact. She did not receive the insurance settlement funds; and number three, she reported her income. And if she forgot to report some in all these complicated forms, that was a mistake. That doesn't mean she committed a crime. Thank you.

(Emphasis added). In closing, her attorney emphasized how confusing the welfare forms are and how the government had an obligation to send her the right forms and tell her when she was making a mistake:

Remember when I asked Ms. MacKay, Gee, on some of these Household Report Forms Nancy gave you the wrong month--and look at those forms. It's confusing. It has a date of the form, then the income report period and then another month. They're very confusing.

Ms. Olson had provided income for the wrong month and I asked Ms. MacKay about that and she said, yeah, that was a mistake. Well, gee did you point it out to Ms. Olson? * * * Did you point that out to her? No, huh-uh.

Well, what is your job? What are you doing? And how hard would it be to say to someone, or call her up, Nancy. Thanks. You know, you gave--you gave the income here, but it's the wrong month. I need this month. How hard is that to do? Is that too much to ask for? I don't think so.

Thus, Olson clearly argued explicitly and implicitly that she made a mistake. In fact, it was the last thing her attorney said in her opening statement. Thus, the Spreigl evidence was properly admitted to show a lack of mistake.

She also argues that the trial court did not weigh the probative value of the evidence against its prejudicial effect because the motion to admit the evidence was granted after jury selection and before the state presented its case.

The state correctly notes that the issue was argued to the trial court three times: (1) at the June 7, 1995 hearing; (2) immediately before opening statements; and (3) just after opening statements. After opening statements, the court stated:

[T]he parties have asked the Court to place on the record its ruling on the Spreigl rulings.

I've decided that the Spreigl rulings meet the standards * * * and that the Defense (sic) can use them for--for rebuttal and impeachment testimony. I will not permit going into the details of them, however.

Thus, the trial court clearly considered the arguments at some length. And it did state that the rulings "meet the standards"--obviously referring to the standards for admission of such evidence.

In addition, although it is preferable to wait until the end of the state's case before deciding whether to admit Spreigl evidence, it is not required. See State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). In this case, the trial court had a legitimate reason for not waiting until the end of the state's case---one of the key Spreigl evidence witnesses, Olson's probation officer, would have been unavailable later in the trial. Because DeWald does not make the procedure mandatory, this was a reasonable accommodation of the witness's schedule.

Thus we conclude that the trial court did not clearly abuse its discretion in admitting the Spreigl evidence.

III. Prosecutorial Misconduct in Closing Argument

Olson argues that she is entitled to a new trial because of prosecutorial misconduct in closing argument. Olson's attorney did not object to the allegedly inflammatory statements at trial and did not ask for curative instructions.

A defendant who fails to object to a prosecutor's statement in closing argument generally forfeits her right to have the issue considered on appeal. See State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996). Olson notes that the supreme court has reversed convictions on the basis of prosecutorial misconduct in closing argument by using its supervisory power. However, this court has repeatedly stated that it does not possess supervisory power. See State v. Gilmartin, 535 N.W.2d 650, 651 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995) ("As an intermediate appellate court, this court will not exercise supervisory powers reserved to the Minnesota Supreme Court."); Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 640 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995) ("Since this court does not have supervisory power, we are reluctant to expand the holding beyond the rule announced in Scales."). Thus, because Olson did not object or ask for curative instructions, we will not consider this issue further.

Affirmed.