This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1758

 

State of Minnesota,

Respondent,

 

vs.

 

Izell Wright Robinson,

Appellant.

 

Filed September 27, 2005

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Otter Tail County District Court

File No. K1-02-1908

 

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

 

David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, Minnesota 56537 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Parker, Judge*.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges his conviction of violating a harassment restraining order, arguing that the district court abused its discretion by denying appellant’s request to stipulate to prior convictions and erred by denying appellant’s motion for a new trial on the grounds of newly discovered evidence.  Appellant also contends that the verdict form for count I was prejudicial.  We conclude that the verdict form for count I was not prejudicial, but because the district court abused its discretion by denying appellant’s request to stipulate to prior convictions, we reverse and remand for a new trial.  As a result of this determination, we need not address appellant’s argument that newly discovered evidence warrants a new trial. 

FACTS

            The state charged appellant Izell Wright Robinson with violation of a harassment restraining order under Minn. Stat. § 609.748, subd. 6(d)(1) (Supp. 2001) (two or more previous convictions) (count I), and Minn. Stat. § 609.748, subd. 6(d)(6) (Supp. 2001) (underage contact) (count II).  Before his jury trial, appellant requested that the district court allow him to stipulate to two prior convictions with regard to count I, making a conviction of the current charge an automatic felony-level offense.  The district court denied appellant’s request. 

At trial, R.A. testified that she first met appellant in June 2001 while working at a grocery store in Morris, Minnesota.  She was 16 and appellant was 19 at the time.  The first day that R.A. met appellant they engaged in sexual activity and immediately began a serious relationship.  R.A. testified that her parents were initially unaware of her relationship with appellant, whom she saw about three times a week.  After learning of the relationship, R.A’s parents obtained a restraining order that prohibited appellant from having contact with R.A.  The restraining order was in effect from August 6, 2001, until December 25, 2002, when R.A. turned 18.  R.A. opposed the restraining order. 

R.A. became pregnant in July 2001.  She testified that appellant was arrested in August 2001 for having contact with her.  R.A. and appellant’s child, K.W.R, was born on April 17, 2002.  Shortly thereafter, R.A. and K.W.R. moved into an apartment.  R.A. testified that she last had physical contact with appellant on September 5, 2002.  R.A. testified that she left her apartment in Morris and went to the Lakeland Motel in Fergus Falls, Minnesota, on September 3, where appellant was living.  R.A. testified that appellant called her and told her that he had arranged for a couple, who also lived at the motel, to give her and K.W.R. a ride to the motel.  The couple picked up R.A. and K.W.R. around 1:00 a.m. in the morning and drove them to the motel. 

Two days later, around 9:00 a.m., a police officer came to appellant’s motel room.  According to R.A., she answered the door at appellant’s request while he hid under the bed.  The officer asked R.A. for her name and told her that her parents had filed a runaway report that indicated a harassment restraining order was in effect against appellant.  R.A. testified that she denied to the officer that appellant was in the motel room because appellant told her to lie if asked.  R.A. and K.W.R. left with the officer and returned to Morris. 

            R.A. testified that she ended her relationship with appellant in April 2003, against appellant’s wishes.  In May 2003, appellant told R.A. that he wanted to see K.W.R.  R.A. opposed appellant having contact with K.W.R.  In November 2002, R.A. became involved in a physical relationship with Andrew Kress.  At trial, R.A. testified that Kress was her current boyfriend. 

            Officer Bruce Kolle testified that on September 5, 2002, he was asked to investigate whether R.A. was staying at the Lakeland Motel.  Kolle was informed that appellant was probably with R.A. and that a restraining order prohibited contact between appellant and R.A.  Kolle reviewed appellant’s criminal history, which consisted of convictions of fourth-degree criminal sexual conduct on April 5, 2002, and violation of a harassment restraining order on July 15, 2002. 

            Darlene Reiter, program manager for Fathers’ Resource Program, testified that on July 15, 2003, she helped appellant fill out court papers to establish custody and parenting time with K.W.R. 

The jury found appellant guilty of both charges.  Appellant moved for a new trial.  Because appellant failed to move the district court for a new trial within 15 days, as required by Minn. R. Crim. P. 26.04, subd. 1(3), the district court considered appellant’s motion as a petition for postconviction relief.  The district court denied appellant’s petition for postconviction relief.  This appeal follows.

D E C I S I O N

I

            Appellant argues that the district court abused its discretion by refusing to allow appellant to stipulate to two prior convictions for domestic-violence-related offenses.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  Reversal is warranted only when there is any reasonable doubt the result would have differed had the evidence not been admitted.  State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997).

A criminal defendant’s offer to stipulate does not necessarily eliminate the state’s right to offer evidence on the subject, especially when the evidence has relevance beyond the stipulation.  See State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (stating that “[t]he reason for the general rule is that a defendant should not be able to unilaterally control the issue of the need for relevant evidence by offering to stipulate.”); see also State v. Durfee, 322 N.W.2d 778, 785–86 (Minn. 1982) (holding that the district court did not abuse its discretion by allowing proof of the victim’s injuries, including photographs, regardless of the defendant’s offer to stipulate that the victim suffered great bodily harm), review denied (Minn. Aug. 29, 1991); State v. Stillday, 646 N.W.2d 557, 562 (Minn. App. 2002) (holding that the district court did not abuse its discretion by admitting evidence related to a prior conviction for terroristic threats despite the defendant’s offer to stipulate to his prior conviction, when the stipulation did not provide all of the evidence about that incident that was relevant to the charged crime of pattern of harassing conduct); State v. Matelski, 622 N.W.2d 826, 833 (Minn. App. 2001) (holding that the district court did not abuse its discretion in admitting gang-related evidence and testimony despite the defendant’s offer to stipulate that he was a member of a criminal gang, because such evidence and testimony was necessary to prove that the defendant aided and abetted the crime), review denied (Minn. May 15, 2001); State v. Barsness, 473 N.W.2d 325, 328 (Minn. App. 1991) (holding that the state was not required to accept a stipulation on the cause of an infant’s death and could present photographs and videotape relevant to the issue).

An exception to this general rule has been made when the potential for unfair prejudice substantially outweighs the probative value of the evidence underlying a conviction and the stipulation supplies all of the relevant information on the subject.  See State v. Berkelman, 355 N.W.2d 394, 396–97 (Minn. 1984) (holding that in a gross-misdemeanor DWI prosecution, the district court should have accepted the defendant’s offer to stipulate to a prior conviction); see Davidson, 351 N.W.2d at 11 (holding that in a felon-in-possession-of-a-handgun prosecution, the district court should allow the defendant to stipulate to being a convicted felon); State v. Clark, 375 N.W.2d 59, 62 (Minn. App. 1985) (holding that in an aggravated-DWI prosecution, the district court should allow the defendant to avoid introduction of evidence regarding his license revocation by stipulating to his prior offenses); see also Old Chief v. United States, 519 U.S. 172, 190–91, 117 S. Ct. 644, 654–56 (1997) (holding that in a trial for possession of a handgun by a felon, it was an abuse of discretion to admit evidence of the facts underlying the felony conviction when the defendant offered to stipulate to the conviction and the only relevance of the conviction was to show the defendant’s status as a felon). 

The harassment-restraining-order statute provides:

(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:

 

            (1) during the time period between the first of two or more previous qualified domestic violence-related offense convictions^[[1]] and the end of the five years following discharge from sentence for that offense; . . . .

 

Minn. Stat. § 609.748, subd. 6(d)(1) (Supp. 2001).

 

Appellant argues that the district court should have permitted him to stipulate to his prior convictions because prior domestic-violence-related convictions were an element of the charged offense.  Appellant argues that he was prejudiced because the jury knew that he had previously violated the restraining order and would therefore have a difficult time objectively assessing whether appellant was in violation of the restraining order in September.  Further, appellant argues that the state had no need to admit the prior violations to explain appellant and R.A.’s relationship. 

The state cites Stillday, arguing that whether appellant knowingly violated the harassment restraining order in effect at the time of the offense was at issue.  Further, the state argues that the prior-conviction evidence is relevant to show that appellant and R.A.’s relationship was “continuous in nature before and after the alleged violation” in September of 2002.

Here, the only relevance of the prior convictions was to show that appellant had two prior convictions of domestic-violence-related offenses, thus making the charged offense a felony.  The facts underlying the prior convictions and the convictions themselves are not relevant to a disputed issue in this case.  Officer Kolle testified that he reviewed appellant’s criminal history, which consisted of convictions of criminal sexual conduct on April 5, 2002, and violation of a harassment restraining order on July 15, 2002.  Neither Kolle nor R.A. testified to the facts underlying appellant’s prior conviction for criminal sexual conduct.  It is possible that this conviction was unrelated to appellant’s relationship with R.A.  Therefore, we reject the state’s argument that the facts underlying these convictions are relevant to a disputed issue.  

            The jury-instruction guides also lend support to our holding that the district court abused its discretion by not accepting appellant’s offer to stipulate.  The jury instruction for violation of a harassment restraining order states:

The elements of violation of a harassment restraining order are:

            First, there was an existing court order restraining defendant from harassing ___.

            Second, the defendant violated a term or condition of the order.

            Third, the defendant knew of the order.

            Fourth, the defendant’s act took place on (or about) ____ in ____ County.

 

            If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.

 

            [If you find the defendant is guilty of violation of a restraining order, you have (an) additional question(s) to determine, and (it) (they) will be put to you in the form of (a) question(s) on the verdict form.  The question(s) (is) (are): Did the defendant commit this crime during the time period between defendant’s previous conviction for ____ and the end of the five years following discharge from sentence for that conviction?  Did the defendant commit this crime during the time period between the first of defendant’s two or more convictions for ___ and the end of five years after being discharged from sentence for that conviction? . . .]

 

10 Minnesota Practice, CRIMJIG 13.63 (1999).  The comment to this guide states, “The bracketed portion of the instruction should be used only in case of a gross misdemeanor or felony prosecution.  If the defendant stipulates to a prior conviction, the court should accept that stipulation and remove that element from the jury.” Id. cmt. (citing State v. Davidson, 351 N.W.2d 8 (Minn. 1984)).

This jury-instruction guide indicates that the first four elements that the state is required to prove are the same whether a criminal defendant is charged with a misdemeanor, gross misdemeanor, or felony.  Therefore, the jury has no reason to know the fact of the prior convictions or the underlying details of the convictions.  Here, the probative value of introducing evidence of appellant’s prior convictions was outweighed by the risk of unfair prejudice. 

Moreover, the state’s reliance on Stillday is misplaced.  There, the defendant was charged with committing a pattern of harassing conduct, which required the state to prove that the defendant engaged in a pattern of harassing conduct that the actor knew or had reason to know would cause the victim to feel terrorized or to fear bodily harm.  See Stillday, 646 N.W.2d at 562.  This court in Stillday held that the district court did not abuse its discretion by rejecting Stillday’s offer to stipulate to a prior conviction of terroristic threats because the offer to stipulate did not provide all of the information relevant to the crime.  Id.  Admitting the stipulated conviction, by itself, would not necessarily enable the jury to determine whether Stillday knew or should have known that the incident would cause the victim to feel terrorized or to fear bodily harm.  Id.  But here, there was no element that required the state to prove that the prior convictions were for offenses involving any particular mental state.  The state must prove the same four elements whether the violation is charged as a misdemeanor, gross misdemeanor, or felony.  Therefore, we conclude that the district court abused its discretion by not allowing appellant to stipulate to two prior domestic-violence-related convictions. 

Having concluded that the district court erred by refusing to allow appellant to stipulate to two prior domestic-violence-related convictions, we analyze whether the error was harmless.  “[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.  If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citation omitted).  But if there is a “reasonable possibility” that the error contributed to the conviction, the error will be found prejudicial.  State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (quotation omitted).

Appellant argues that the record does not conclusively prove his guilt, given that the couple who allegedly drove R.A. to the motel did not testify and R.A.’s credibility was weakened by her admission that she was in a custody dispute with appellant and had ended the relationship and given birth to a child with her current boyfriend.  The state argues that the error was harmless because appellant’s guilt was conclusively proven by R.A.’s testimony and officer Kolle’s corroborating testimony. 

There is a reasonable probability that the jury found appellant guilty of violating the restraining order because he had previously violated the order or because he had a prior conviction of fourth-degree criminal sexual conduct.  The record does not conclusively prove appellant’s guilt because R.A. was the only person who testified that appellant arranged for her and K.W.R. to travel to his motel room to see him.  R.A. had a motive to lie, given that appellant wanted custody or visitation of K.W.R.  And if the jury found that appellant did not arrange for R.A. to come to his motel room, then the jury could have found that appellant did not knowingly violate the harassment restraining order.  Thus, the error was not harmless, and we reverse and remand for a new trial.

II

Next, appellant argues that the district court erred by denying his motion for a new trial on the grounds that (1) the count I verdict form prejudicially implied that appellant had two or more sex-offense convictions; and (2) newly discovered evidence proves that R.A. lied on the witness stand.

A reviewing court should determine whether the findings made by the postconviction court were clearly erroneous and whether the postconviction court abused its discretion in denying the petition for postconviction relief.  Shoen v. State, 648 N.W.2d 228, 231 (Minn. 2002).

Appellant did not object to the count I verdict form at trial, so this court may only reverse if the verdict form was misleading or confusing on fundamental points of law.  See State v. Lindsey, 654 N.W.2d 718, 722 (Minn. App. 2002).  This court may consider a plain error not previously brought to the attention of the district court if the error affects substantial rights.  Minn. R. Crim. P. 31.02.  To establish plain error, an appellant must show that a district court’s ruling (1) was error; (2) that the error was plain; and (3) that the error affected appellant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            A jury instruction is in error if it materially misstates the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  District courts are allowed considerable latitude in the selection of language for jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). 

            The count I guilty-verdict form read as follows:

            If you find the defendant is guilty of violation of Violation of a Harassment/Restraining Order, you have an additional question to determine: Did the defendant commit this crime during the time period between the first of defendant’s two or more convictions for criminal sexual conduct in the fourth degree (Minn. Stat. 609.345) and violation of a harassment/restraining order (Minn. Stat. 609.748), and the end of five years after being discharged from sentence for that conviction?

 

            The district court concluded that appellant’s claim of prejudicial error failed for several reasons.  First, the district court noted that appellant failed to object to the count I verdict form.  Second, the district court found that the verdict form conformed to the recommended jury instruction, CRIMJIG 13.63.  See 10 Minnesota Practice, CRIMJIG 13.63 (1999).  Third, the district court concluded that the “and” phrasing negates appellant’s assertion that the jury was led to believe that appellant had two or more convictions solely for criminal sexual conduct in the fourth degree.  Finally, the district court noted that the introduction of evidence of appellant’s two prior convictions, one for criminal sexual conduct and one for violating a harassing restraining order, contradicted any suggestion that appellant had two prior convictions for criminal sexual conduct.

            The district court’s findings are not clearly erroneous, and it was not an abuse of discretion to deny appellant’s postconviction petition.  Here, the special-verdict form does not materially misstate the fundamental points of law.  The relevant portion of the law states, “during the time period between the first of two or more previous qualified domestic violence-related offense convictions and the end of the five years following discharge from sentence for that offense.”  Minn. Stat. § 609.748, subd. 6(d)(1) (Supp. 2001).  Thus, the verdict form accurately reflects the law and is not erroneous.

            We do not reach appellant’s argument that he is entitled to a new trial based on newly discovered evidence because we remand for a new trial on appellant’s conviction of violating a harassment restraining order under Minn. Stat. § 609.748, subd. 6(d)(1) (Supp. 2001).

Affirmed in part, reversed in part, and remanded.