This opinion will be unpublished and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
Richard Robert Wemyss,
a/k/a Richard Robert Weyness,
Filed January 3, 2006
Ramsey County District Court
File No. K2-03-2511
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota St., St. Paul,
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 (
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
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”).
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.
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:
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 (
is necessary to distinguish between the harmless-error standard for ordinary
evidentiary rulings and the standard for those rulings that constitute
the state points out, there was no finding in this court’s earlier opinion of
constitutional error. 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
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
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
The properly admitted evidence
showed Wemyss was still registered at
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 (
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 (
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
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.
 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.
 Most of the case law regarding “harmless error impact
analysis” examines the harmlessness of constitutional error.