This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Richard Robert Wemyss,

a/k/a Richard Robert Weyness,



Filed January 3, 2006


Dietzen, Judge


Ramsey County District Court

File No. K2-03-2511



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota St., St. Paul, MN  55101; and


Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent);


Timothy Mulrooney, Special Ass’t State Public Defender, Henson & Efron, 220 South Sixth Street, Suite 1800, Minneapolis, MN  55402 (for appellant)



            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N



            This appeal from a judgment of conviction for failure to register as a predatory offender has been remanded by the supreme court for proper application of the correct harmless-error standard.  State v. Wemyss, 696 N.W.2d 802, 805-07 (Minn. App. 2005), review granted and remanded  (Minn. Aug. 16, 2005).  We affirm.


            Appellant Richard Wemyss was charged with a single count of violating the predatory-offender-registration statute.  Following a traffic stop of Wemyss, police went to 1003 Montclair Avenue in Mounds View to arrest Wemyss on outstanding arrest warrants.  Wemyss was at the residence and told police he had been living there for weeks with his girlfriend.  The last address Wemyss had registered with the Bureau of Criminal Apprehension (BCA), however, was 435 E. University Avenue in St. Paul.  The complaint acknowledged that Wemyss had filled out a number of BCA change-of-address forms, but alleged that the last one he had completed was in August 2002, reporting 435 E. University Avenue as his address.

            Before trial, the prosecutor and defense counsel stipulated “that [Wemyss] is a person who is required to register as a predatory offender.”  Wemyss also stipulated that the ten-year period during which he was required to register had not expired.

            Despite this stipulation, the prosecutor was allowed to present, over defense objection:  (1) nineteen “predatory offender information forms” that had been completed by Wemyss; (2) one “Sex Offender Notification and Registration Form” that indicated Wemyss was a “sex offender” and stated he was convicted of engaging in sexual penetration with a 14-year-old girl; and (3) nine exhibits requesting Wemyss provide updated information (four of the exhibits were marked “Returned to Sender”).  Id. at 806-07.  The prosecutor also elicited testimony from several police officers and from a BCA supervisor referring to Wemyss’s duty to register as a “sex offender” or “predatory offender,” and used that terminology herself.

            The jury found Wemyss guilty of failing to register as a predatory offender.  This court concluded it was error to fail to redact the “sex offender” and “predatory offender” language from the forms, to allow the prosecutor to use that terminology, to fail to redact the description of Wemyss’s prior offense from the “Sex Offender Notification and Registration Form,” and to admit the nine exhibits that requested updated information.  Id. at 809-10.  The court, however, concluded that the error was harmless.  Id. at 810.



The supreme court has granted review of this court’s earlier decision and remanded for this court “to determine and properly apply the correct harmless-error standard for erroneous evidentiary rulings.”  In the earlier opinion, we stated the following harmless error standard:

“[A]ppellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  Id.  The inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”


Id. (citation omitted).

It is necessary to distinguish between the harmless-error standard for ordinary evidentiary rulings and the standard for those rulings that constitute constitutional error.  See State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).  The ordinary harmless-error standard for the erroneous admission of evidence is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If the ruling involves constitutional error, however, the court must look to whether the error was harmless “beyond a reasonable doubt.”  Richardson, 670 N.W.2d at 277.  The error is not harmless “beyond a reasonable doubt” if there is a reasonable possibility that it contributed to the conviction.  Id. (quotation omitted).

As the state points out, there was no finding in this court’s earlier opinion of constitutional error.[1]   And Wemyss does not show that the evidence was admitted in violation of any constitutional right.  The admission of the evidence violated Wemyss’s right to stipulate to the prior offense and keep evidence of it from the jury.  But this is not a constitutional right.  See State v. Berkelman, 355 N.W.2d 394, 397 n.2 (Minn. 1984) (noting that the holding permitting defendant to stipulate was a “limited exception” to the general rule that a defendant could not by stipulation control the extent of prosecution evidence presented); State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (noting the general rule that the defendant has no right to “unilaterally control” the extent of the state’s evidence by means of stipulation).

Wemyss argues, however, that the trial court’s rulings violated his right to due process, citing Maurer v. Dep’t of Corr., 32 F.3d 1286, 1289 (8th Cir. 1994).  But Maurer involved a federal habeas claim, and federal habeas review does not extend to evidentiary errors that raise no constitutional issue.  See id. 

            Wemyss does not present any authority establishing that the erroneous admission of the unredacted documents or the “sex offender” and “predatory offender” references violated his right to due process.  The admission of evidence may be so fundamentally unfair as to violate a defendant’s right to due process.  See generally Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668 (1990) (noting the Court had defined the category of infractions that would violate “fundamental fairness” very narrowly, and holding that admission of evidence of prior bad act on which defendant had been acquitted did not fall within that category).  But the Eighth Circuit has rejected two claims that admission of prior bad-acts evidence violated the defendant’s right to due process and fundamental fairness.  See Poole v. Wood, 45 F.3d 246, 250 (8th Cir. 1995) (relying on Rainer);  Rainer v. Dep’t of Corr., 914 F.2d 1067, 1072 (8th Cir. 1990) (holding that admission of prior bad-acts evidence that was sufficiently similar to charged offense and rebutted defense of accidental discharge of the gun was not a violation of due process).  What the trial court erroneously admitted here was in essence prior bad-acts evidence, either explicitly, in the form of the brief sketch of the facts of Wemyss’s prior conviction, or implicitly, in the “sex offender” and “predatory offender” terminology used on the forms and in the testimony of the witnesses.

            The Eighth Circuit in Rainer enunciated a standard for finding an evidentiary error to be a violation of due process:

To justify the grant of habeas corpus, the error must be “so ‘gross’ . . . ‘conspicuously prejudicial’ . . . or otherwise of such magnitude that it fatally infected the trial and failed to afford [appellant] the fundamental fairness which is the essence of due process.”


914 F.2d at 1072 (citation omitted).  We conclude that the error of permitting references to Wemyss’s status as a sex offender and a predatory offender, and failing to redact a brief description of his prior offense, does not, even when considered cumulatively, rise to the level of a denial of due process.  The error in admitting the evidence in question was not so gross, or of such a magnitude that it fatally infected the trial.

            The harmless-error standard to be applied, therefore, is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d at 102 n. 2.  In applying this standard, we must look not only to the strength of the state’s evidence.  See State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (holding it was error for this court to state that whether the error was harmless depended on the sufficiency of the evidence);  cf. State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (holding the relevant consideration in harmless-error analysis is the strength of the evidence, not its sufficiency).  Rather, we must examine the error “and its impact . . . within the context of the record as a whole,” including the strength of the state’s evidence and the weakness of any defense evidence.  State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).[2]

            The properly admitted evidence showed Wemyss was still registered at 435 University Avenue, although he told police he had been staying at 1003 Montclair “for weeks,” and was found at the Montclair address, along with his driver’s license and clothes apparently belonging to him.  The evidence also established that Wemyss had not registered the 1003 Montclair address, although the evidence showed he knew about the registration requirement and had complied in the past.  The defense presented only the testimony of a Roseville police officer that Wemyss had talked to him about reporting a change of address.

            In the context of this evidence, we must look at the extent of the error and assess its likely impact on the jury.  First, we note that the prosecutor in her closing argument, although referring to the term “predatory offender” as something Wemyss had stipulated to being, did not use the more prejudicial term of “sex offender.”  She made no reference to Wemyss’s prior conviction itself and focused on his flouting of the registration requirement without implying any broader issues, such as the risk to the community from a sex offender’s failure to register.  See generally State v. Bolte, 530 N.W.2d 191, 198  (Minn. 1995) (noting prosecutor’s decision not to rely on improperly admitted other-crime evidence in closing argument in concluding error was harmless).

            Second, the most prejudicial of the erroneously admitted evidence, the reference to the details of Wemyss’s prior sex-offense conviction, was a brief sentence contained in one of the forms admitted as an exhibit.  Given the testimony offered from witnesses, it was not necessary for the jury to examine the details of the exhibits to decide the contested issues before it, and we conclude that it is unlikely this brief reference had a significant impact on the jury.  See generally Townsend v. State, 646 N.W.2d 218, 223 (Minn. 2002) (holding one factor in harmless-error test is “the manner in which the evidence was presented”).

            Finally, as the outline of the evidence in this opinion and this court’s earlier opinion shows, the evidence was overwhelming that Wemyss failed to register the 1003 Montclair address, and that this was at least a secondary residence that he was required to register.  And, given the number of registration forms that Wemyss had completed in the past, the testimony of his probation officer, and the defense’s own witness’s testimony that Wemyss had inquired about reporting a change of address, we also conclude the evidence was overwhelming that Wemyss knowingly violated the registration statute.

            Based on the limited extent and degree of the error, the prosecutor’s restraint in not exploiting it, and the overwhelming nature of the state’s evidence, we conclude that there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  Therefore, we conclude that the error was harmless, and that Wemyss’s conviction must be affirmed.


[1] This court’s earlier opinion cited the “beyond a reasonable doubt” harmless-error standard for constitutional error, but did not identify any constitutional provision implicated by admission of the wrongfully admitted evidence.  692 N.W.2d at 810.

[2] Most of the case law regarding “harmless error impact analysis” examines the harmlessness of constitutional error.  See State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997).  But the same principle is applied in Dillon and VanWagner to what appears to be non-constitutional error.