A04-733

State of Minnesota,

Respondent,

vs.

Marco Harmon,

Appellant.

Filed July 5, 2005

Affirmed

Willis, Judge

Hennepin County District Court

File No. 03033682

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

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

WILLIS, Judge

Appellant challenges his conviction of prohibited person in possession of a firearm, arguing that (1) the district court erred by informing the jury of the parties’ stipulation to an element of the charged offense without appellant’s personal oral or written waiver of his right to a jury trial on that element; and (2) the district court abused its discretion by admitting a hearsay statement by an unreliable and unavailable declarant. Because the error, if any, was not prejudicial and because we find no abuse of discretion, we affirm.

FACTS

On the night of May 14, 2003, after responding to 911 calls in a high-crime area of south Minneapolis, Officers Brandy Steberg and Timothy Costello of the Minneapolis Police Department saw what appeared to be narcotics-related activity taking place. Officer Steberg saw a vehicle drive around the block two or three times before stopping in front of a house. He also saw a group of people who had been loitering in front of the house approach the vehicle and quickly disperse, and he heard someone from the group yell, “He ain’t playing around, he got a gun!”

Appellant Marco Harmon then got out of the passenger side of the vehicle, walked up to the house, removed a black object from his waistband, placed it between a bush and the porch of the house, and walked back toward the vehicle. Officer Costello approached Harmon and the vehicle to investigate, and Officer Steberg went to the area where he had seen Harmon place the object. He recovered a 9 mm handgun, and the officers arrested Harmon.

The state subsequently charged Harmon with one count of prohibited person in possession of a firearm. At a Rasmussen hearing, before any witnesses were called, Harmon personally stated for the record that he agreed to stipulate to the fact that he was a person prohibited from possessing a firearm, an element of the charged offense. Harmon and the state also submitted the stipulation in written form. At the conclusion of the hearing, the district court granted the state’s motion to admit the statement by the unidentified declarant—“He ain’t playing around, he got a gun!”—as an excited utterance.

Before the September 2003 trial, the district court read the parties’ stipulation to the jury. At the conclusion of the trial, the jury could not reach a verdict, and the district court granted Harmon’s motion for a mistrial. A new trial was scheduled for December 2003.

Before the December 2003 trial, Harmon requested that the district court reconsider the prior Rasmussen rulings. The district court denied Harmon’s request and later admitted the hearsay statement over his objection during trial. The district court included in the jury’s materials for deliberation the parties’ written stipulation and twice read the stipulation to the jurors before dismissing them. The jury found Harmon guilty, and the district court sentenced him to 40 months in prison. This appeal follows.

D E C I S I O N

Harmon concedes that a defendant may effectively waive his right to a jury trial on an element of the charged offense by stipulating to the existence of that element. See State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984) (stating that “generally in a prosecution for being a felon in possession of a weapon the defendant should be permitted to remove the issue of whether he is a convicted felon by stipulating to that fact”). And he also concedes that his defense counsel and the state stipulated that he was ineligible to possess a gun at the time of the offense. But Harmon argues that he is entitled to a new trial because the record does not show that at the second trial “the district court asked [him] whether he agreed to the stipulation or agreed to waive his right to a jury trial on the stipulated element.”

On the record before us, there is no indication that the district court considered this issue. On January 23, 2004, Harmon moved the district court, apparently without a supporting memorandum,

to enter a judgment of acquittal, pursuant to Minn. R. Crim. P. 26.03, subd. 17(3), or, in the alternative, . . . a new trial pursuant to Minn. R. Crim. P. 26.04, subd. 1(1) and (7), on the grounds that it will be in the interest of justice, and the verdicts are contrary to the evidence present to the jury and the law governing the same.

But a motion under Minn. R. Crim. P. 26.03, subd. 17(3), if not made during trial, “may be made or renewed within 15 days after the jury is discharged or within such further time as the court may fix during the 15-day period.” And a motion under Minn. R. Crim. P. 26.04, subds. 1(1) and (7), “shall be served within 15 days after the verdict or finding of guilty.” Id., subd. 1(3). Here, the jury returned a verdict of guilty on December 5, 2003. Harmon’s motion was made more than a month after the 15-day limits had passed. Thus, the district court was not required to consider, and apparently did not consider, Harmon’s motions.

Harmon also failed to object at trial to evidence of the stipulation. See State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002), review denied (Minn. Dec. 17, 2002) (holding that generally a party’s failure to object at trial effectively waives the opportunity to challenge the alleged error on appeal). In any event, we generally will not consider issues that were neither argued nor considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Because there is no indication on the record before us that the district court considered this issue, we conclude that Harmon has waived this issue on appeal.

But Harmon claims that evidence of the stipulation essentially “directed a verdict of guilty against [him] on an element of the charged offense,” amounting to structural error. Harmon concedes, however, that “the Minnesota Supreme Court has approved of such a practice.” And this court reviews alleged errors regarding a district court’s decision to accept 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) (holding that the district court erred by accepting a stipulation to an element of the offense without the defendant’s personal waiver but that the error was harmless because, among other things, the defendant did not object when the district court read the stipulation into the record). Under a harmless-error analysis, we determine whether the alleged constitutional error was prejudicial. Id. “A constitutional error will be found prejudicial if there is a reasonable possibility that the error . . . might have contributed to the conviction.” Id. (quotation omitted). But if “the verdict was surely unattributable to the error, the error is harmless.” Id. (quotation omitted).

Both the United States and Minnesota Constitutions afford a defendant the right to a jury trial on all elements of the charged offense. U.S. Const. amend. VI; Minn. Const. art. I, § 6. A defendant may stipulate to an element of the charged offense, and, by doing so, the “defendant effectively waives the right to a jury trial on that element and removes unduly prejudicial evidence from the jury’s consideration.” Wright, 679 N.W.2d at 191. “[A]n oral or written waiver of rights . . . is required before a defendant personally elects to stipulate at trial to one of several elements of an offense.” Id.

The state charged Harmon with a violation of Minn. Stat. § 624.713, subd. 1(b) (2002), which provides that “a person who has been convicted . . . as an extended jurisdiction juvenile for committing . . . a crime of violence” is prohibited from possessing a firearm “unless ten years have elapsed since . . . the sentence or disposition has expired.” At both the September and December 2003 trials, the attorneys for Harmon and the state submitted a signed document stipulating that “[d]uring May 2003, [Harmon] was a person prohibited from possession of a handgun” and that “[l]ess than ten (10) years had elapsed since defendant was determined to be a person so prohibited.” Before the September trial, Harmon personally and orally waived his right to a jury determination of that element. At the December trial, the district court twice read the stipulation to the jury but without a renewed personal and oral waiver from Harmon.

Again, Harmon asserts that the district court erred by reading the stipulation to the jury without his renewed personal and oral waiver. But stipulations to remove from the jury’s deliberation an element of the charged offense are presumably for the benefit of a defendant in a trial before a jury. State v. Greenfield, 622 N.W.2d 403, 408 (Minn. App. 2001), review denied (Minn. May 15, 2001) (stating that “defendants and defense counsel have the right to offer to stipulate to certain facets of the state’s case for the purpose of admitting the obvious and holding down unwarranted prejudicial overtones”). Thus, even if it were error for the district court to read the stipulation to the jury without Harmon’s renewed personal and oral waiver, we conclude that the verdict was surely unattributable to admission of the stipulation, which was presumably intended to benefit Harmon and of which he had personally availed himself in a prior proceeding. The error, if any, was therefore harmless.

II.

Evidentiary rulings are within the sound discretion of the district court, and we will not reverse absent a clear abuse of that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” Id.

Harmon argues that the district court abused its discretion by admitting the statement by an unidentified declarant: “He ain’t playing around, he got a gun!” Before the second trial, Harmon argued for the district court’s reconsideration of the omnibus court’s rulings, including the admission of the statement. The district court ruled that the circumstances did not merit reconsideration. See State v. Lyons, 423 N.W.2d 95, 98 (Minn. App. 1988) (holding that omnibus order may only be reconsidered by a second court under extraordinary circumstances), review denied (Minn. July 6, 1988). At trial, the district court admitted the statement over Harmon’s objection.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Generally, hearsay is inadmissible unless it qualifies under one of the exceptions provided in Minn. R. Evid. 803. One exception is for a statement that is made as an “excited utterance,” which is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. 803(2). When determining whether a statement is an excited utterance, district courts “consider all relevant factors including the length of time elapsed, the nature of the event, the physical condition of the declarant, any possible motive to falsify, etc.” State v. Daniels, 380 N.W.2d 777, 782-83 (Minn. 1986) (quoting Minn. R. Evid. 803(2) 1977 comm. cmt.).

Harmon concedes that “the language of rule 803(2) does not require that the declarant be identified and [that] case law suggests that the identity of the declarant is not necessary for admission of an excited utterance.” But he claims that this particular statement “does not take on an indicia of reliability and trustworthiness” because Officer Steberg did not know the normal speaking tone or the emotional state of the declarant.

But again, it is “a matter for the trial judge to determine whether the statement was given at such a time when the aura of excitement was sufficient to insure a trustworthy statement.” Daniels, 380 N.W.2d at 782 (quoting Minn. R. Evid. 803(2) 1977 comm. cmt.). Officer Steberg testified that from a distance of 25 yards, he observed the group that had been loitering in front of the house approach the vehicle to engage in what appeared to be a narcotics transaction; that the group then hurriedly dispersed and appeared scared and nervous; and that, as the group dispersed, Steberg heard someone from the group excitedly yell, “He ain’t playing around, he got a gun!” Because the testimony supports a determination that there was a sufficient aura of excitement to insure a trustworthy statement, we conclude that the district court did not abuse its discretion by admitting the statement under the excited-utterance exception to the hearsay rule.

Harmon also argues that because the declarant was unavailable, Harmon’s “ability to attack the declarant’s credibility under the rules of evidence was severely limited.” But the availability of the declarant is “immaterial” to hearsay exceptions listed in Minn. R. Evid. 803. And after the United States Supreme Court decision in Crawford v. Washington, “the Sixth Amendment Confrontation Clause analysis turns on whether a particular [hearsay] statement is ‘testimonial’ in nature.” State v. Lasnetski, 696 N.W.2d 387, 392 (Minn. App. 2005).

Under Crawford, the general category of “core” testimonial hearsay applicable here would be “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. at 52, 124 S. Ct. at 1364. In Lasnetski, we recently held that excited utterances made in the context of thwarting a threatened suicide are not testimonial in nature. 696 N.W.2d at 393. Similarly, we conclude that the unidentified declarant here would not have reasonably expected that his statement—“He ain’t playing around, he got a gun!”—would be used in later judicial proceedings. Harmon’s right of confrontation, therefore, was not violated, and the district court did not abuse its discretion by admitting the statement.

Affirmed.