A04-1392

State of Minnesota,

Respondent,

vs.

Chebon Jackson Yahola,

Appellant.

Filed August 16, 2005

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 03091594

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

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

O P I N I O N

HUDSON, Judge

Appellant challenges his conviction of being a prohibited person in possession of a firearm under Minn. Stat. § 624.713, subds. 1(b), 2 (2004), arguing that the district court erred by failing to secure appellant’s waiver of his right to a jury trial on an element of the charged offense either orally on the record or in writing. We agree that the district court erred by failing to properly secure appellant’s waiver, but affirm appellant’s conviction because the error was harmless beyond a reasonable doubt.

FACTS

On December 13, 2003, R.R. shot T.E. in the arm during a party. Pursuant to Minn. Stat. § 624.713, subds. 1(b), 2 (2004), the state charged appellant Chebon Yahola with being a prohibited person in possession of the firearm that R.R. used to shoot T.E. During trial, the parties stipulated that appellant is legally prohibited from possessing a firearm; but the record does not demonstrate that appellant agreed to the stipulation orally on the record or in writing.

Before the state rested, the district court read the parties’ stipulation to the jury: “Both parties stipulate that the defendant is legally prohibited from possessing a handgun.” After reading the stipulation, the district court explained, “[t]his stipulation is evidence for your consideration just like any other evidence in the case.” Appellant did not object to the district court’s reading of this stipulation to the jury. After closing arguments, the district court again instructed the jury that “the parties have stipulated that [appellant] is a legally prohibited person from possessing a firearm.”

Appellant has a prior felony conviction from 2002 for simple robbery. The district court ruled that the state could use appellant’s prior felony conviction to impeach appellant if he testified. Appellant chose not to testify. The jury found appellant guilty of being a prohibited person in possession of a firearm. This appeal follows.

D E C I S I O N

Appellant argues that he is entitled to a new trial because the district court erred by failing to secure appellant’s waiver of his right to a jury trial on an element of the charged offense either orally on the record or in writing.

The United States and Minnesota constitutions guarantee the right to a jury trial in a criminal case. U.S. Const. amend. VI; Minn. Const. art. I, § 6; see also Minn. R. Crim. P. 26.01, subd. 1(1). A defendant’s right to a jury trial includes the right to be tried on each and every element of the charged offense. State v. Bluhm, 457 N.W.2d 256, 259–60 (Minn. App. 1990), aff’d in part, rev’d in part on other grounds, 460 N.W.2d 22 (Minn. 1990). A defendant may agree to stipulate at trial to one of several elements of an offense by waiving this right, but such waiver must be made personally by the defendant in writing or orally on the record. Minn. R. Crim. P. 26.01, subd. 3; State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004); see also State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984) (“We believe 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 the fact.”). By stipulating to an element of the offense, a defendant effectively waives the right to a jury trial on that element and removes unduly prejudicial evidence from the jury’s consideration. See State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984).

Appellant argues that he is entitled to a new trial because the district court never determined whether appellant personally agreed to waive his right to a jury trial on a charged element before instructing the jury that the parties had stipulated that appellant was legally prohibited from possessing a firearm.

The state concedes that, under State v. Wright, the district court erred by failing to secure an oral or written waiver from appellant before permitting the stipulation at trial of an element of the charged offense. We agree with both parties that the district court erred by failing to secure appellant’s waiver of his right to a jury trial because there is no evidence in the record that appellant personally waived this right orally or in writing.

We next consider the state’s argument that the district court’s failure to properly secure appellant’s waiver was not plain error, or alternatively, that it was not prejudicial error. The state argues that because appellant did not object to the stipulation, we should apply the plain-error test under State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). But the state’s position is not supported by current case law. In State v. Wright, on nearly identical facts, we analyzed the district court’s error of accepting a stipulation to proof of an element of an offense without obtaining the defendant’s consent in writing or orally on the record under the harmless-error test. 679 N.W.2d at 191 (noting the defendant’s failure to object to the stipulation at trial).

The Wright court noted that we will find a constitutional error prejudicial if there is “a reasonable possibility” that the error might have contributed to the conviction. Id. A new trial is not warranted, however, if the state can establish beyond a reasonable doubt that the constitutional error was harmless. Id. If, after reviewing the evidence on which the jury rested its verdict, we conclude that the verdict was “surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Id. Accordingly, the applicable test is the harmless-error test.

Here, applying the harmless-error test, we conclude that the verdict was surely unattributable to the error. By accepting the stipulation, the district court sought to treat appellant’s prior conviction in a way that would minimize prejudice to appellant. The error was not prejudicial because appellant benefited from keeping the knowledge of his prior robbery conviction from the jury. Appellant did not deny his prior conviction and presumably chose not to testify in order to prevent the jury from learning of his prior felony conviction. On this record, there is no reasonable likelihood that the verdict would have been different had the jury not been instructed to consider the stipulation. Thus, the error was harmless beyond a reasonable doubt.

Affirmed.