A05-2023

State of Minnesota,

Respondent,

vs.

Nathan Wayne Carr,

Appellant.

Filed January 30, 2007

Affirmed

Willis, Judge

Clay County District Court

File No. K8-05-476

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Brian J. Melton, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.

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

WILLIS, Judge

Appellant challenges his convictions of first-degree refusal to submit to a chemical test, felon in possession of a firearm, and obstructing legal process. Appellant argues that (1) his refusal-to-test conviction must be reversed because the district court improperly allowed two prior impaired-driving incidents that took place in North Dakota to be used to enhance appellant’s refusal-to-test charge from a misdemeanor to a felony; and (2) he is entitled to a new trial because the district court allowed the state to impeach him with two prior felony convictions without ruling on the admissibility of the prior-conviction evidence and then failed to give a limiting instruction to the jury regarding the evidence. Because a recent decision of the Minnesota Supreme Court disposes of the first issue and because appellant waived any objection to the admission of the prior-conviction evidence and to the omission of a limiting instruction to the jury, and the district court did not commit plain error, we affirm.

FACTS

On March 9, 2005, at approximately 1:15 a.m., appellant Nathan Wayne Carr was at a bar in Moorhead. Craig Danielson, an off-duty deputy sheriff who was also at the bar, heard something “heavy, . . . metallic sounding” hit the floor when a man wearing a red fleece jacket and “sweat-pant type pants [with] some sort of stripe or buttons down the side” walked past Danielson’s table. Danielson observed the man bend down to pick up what Danielson said looked like a “small handgun with a black handle.” Danielson later located the man wearing the red fleece jacket and sweat pants and recognized him as Carr, whom Danielson knew from his “prior law enforcement experience” and who Danielson believed was ineligible to possess a gun. Danielson notified the Moorhead Police Department of the situation, spoke with the first officer to arrive on the scene, and identified Carr to the officer as Carr walked out of the bar.

As Carr walked toward his car, which was running, and began to get into the driver’s seat, an officer ordered him to step away from the car and put his hands up, explaining that the officer had received a report that Carr was carrying a gun. Carr claimed not to have a gun and resisted the officer’s attempt to restrain him. Other officers assisted in restraining and handcuffing Carr and searching him, and, in the struggle, one of the assisting officers saw a gun slide out of Carr’s pant leg and onto the ground and saw Carr try to push the gun away with his foot. Several officers testified that Carr was visibly intoxicated at the time. At the police station, Carr was given the implied-consent advisory, stated that he wanted to contact his lawyer, and attempted but failed to do so. He ultimately refused to take a blood, breath, or urine test.

Carr was charged with three offenses: first-degree refusal to submit to a chemical test, in violation of Minn. Stat. งง 169A.20, subd. 2, .24 (2004); felon in possession of a firearm, in violation of Minn. Stat. ง 624.713, subds. 1(b), 2(b) (2004); and obstructing legal process, in violation of Minn. Stat. ง 609.50, subds. 1(2), 2(2) (2004). At a pretrial hearing, Carr stipulated to the fact that he was ineligible to possess a firearm because he had committed a crime of violence in the past ten years. A jury found Carr guilty of all three charges. This appeal follows.

D E C I S I O N

Minn. Stat. ง 169A.24, subd. 1(1) (2004), provides: “A person who violates section 169A.20 (driving while impaired) [which includes refusal to test] is guilty of first-degree driving while impaired if the person . . . commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” Carr argues that his refusal-to-test conviction must be reversed because two of the “qualified prior impaired driving incidents” used to enhance his refusal-to-test charge from a misdemeanor to a felony occurred in North Dakota, and North Dakota law does not recognize the constitutional right that Minnesota law recognizes to consult an attorney before deciding whether to submit to a chemical test. The district court’s decision to allow Carr’s North Dakota impaired-driving incidents to be used to enhance his failure-to-test charge raises a question of law, which this court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004), abrogated on other grounds by State v. Schmidt, 712 N.W.2d 530 (Minn. 2006).

After Carr submitted his brief to this court, the Minnesota Supreme Court released a decision that disposes of this issue. In State v. Schmidt, 712 N.W.2d 530, the supreme court held that the defendant’s prior impaired-driving convictions, which occurred in South Dakota, whose laws do not provide a right to consult an attorney before submitting to a chemical test, could be used to enhance the defendant’s DWI charge to a felony because to hold otherwise would allow an impermissible collateral attack on the out-of-state convictions. Id. at 536-37. Under Schmidt, the district court’s decision to allow Carr’s impaired-driving incidents in North Dakota to be used to enhance his refusal-to-test charge is not a basis for reversal of Carr’s refusal-to-test conviction.

II.

At a pretrial hearing, Carr stipulated to the fact that he had committed a crime of violence in the past ten years, which rendered him ineligible to possess a firearm, to preclude the state from mentioning Carr’s prior felony convictions to prove that element of the felon-in-possession charge. The state agreed not to discuss Carr’s prior convictions for that purpose but expressed its intent to use the convictions to impeach Carr if he took the stand. In response, defense counsel stated, “[W]e would anticipate that Mr. Carr would take the stand and we were aware that if he did take the stand that his criminal history would come into play . . . .” Defense counsel did not move to exclude the evidence of Carr’s prior convictions. During its cross-examination of Carr, the state elicited testimony confirming that Carr is a convicted felon, having one conviction of third-degree burglary and one of conspiracy to deliver a controlled substance. Defense counsel did not object to the questioning.

Carr argues that he must be granted a new trial (1) because the state used evidence of Carr’s two prior felony convictions, despite his stipulation to those convictions, to impeach him without first obtaining a ruling on the admissibility of the evidence; (2) because the district court failed to consider the admissibility of the prior-conviction evidence under Minn. R. Evid. 609(a) and make findings applying the admissibility factors set forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978); and (3) because the district court failed to give the jury “a limiting instruction on how to use this highly prejudicial evidence.” The state argues that Carr’s failure to object to the impeachment evidence or to the omission of a limiting instruction waived those issues on appeal. We agree.

To preserve his objection to the admission of the prior-conviction evidence, Carr was required to move to exclude the evidence, object to the evidence when the state elicited it, or raise the issue before the district court on a motion for a new trial. Gourd v. Morrison County, 118 Minn. 294, 299, 136 N.W. 874, 875 (1912); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). When a party fails to object to the admission of evidence, we review only for plain error that affects substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

Although Carr is correct that in State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984), the supreme court concluded that the defendant ought to have been able to stipulate to prior felony convictions on the ground that “[i]n the vast majority of such cases the potential of the evidence for unfair prejudice clearly outweighs its probative value,” the Davidson court also noted that “[p]rior convictions would still be usable under Minn. R. Evid. 609 to impeach the defendant if he testified.” Id. Rule 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect . . . .

Unlike the defendant in Davidson, Carr testified, so he was not entitled to keep evidence of his prior convictions from reaching the jury by stipulating to those convictions because they fell within the contemplation of Minn. R. Evid. 609 and therefore within the exception noted in Davidson. It was not plain error for the district court to allow the state to examine Carr regarding his prior felony convictions despite the fact that Carr stipulated to the convictions.

Carr does not dispute that his prior convictions were punishable by more than one year’s imprisonment or that the convictions fell within the ten-year time limitation imposed in rule 609(b). He does argue that the district court failed to apply the State v. Jones factors to ensure that the evidence of his prior convictions was more probative than prejudicial, as required by rule 609(a). Carr relies on the language of a committee comment to rule 609(a) to argue that the district court’s failure to make findings regarding the Jones factors when it allowed the evidence of Carr’s prior convictions warrants a new trial. But Carr quotes only half a paragraph of the comment when he asserts that the district court “should make explicit findings on the record as to the factors considered and the reasons for admitting or excluding the evidence.” Minn. R. Evid. 609(a) 1989 comm. cmt. The preceding sentence states that “the defendant can preserve the issue at a motion in limine and need not testify to litigate the issue in post trial motions and appeals,” which confirms that the defendant must preserve the issue. Id.

Because Carr failed to preserve the issue by objecting to the admission of the evidence, we review only for plain error affecting substantial rights. Strommen, 648 N.W.2d at 686. A district court’s failure to place a Jones analysis on the record does not warrant reversal if the appellate court applies the Jones factors itself and determines that the impeachment evidence was properly admitted. See State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006). Courts applying the Jones factors must consider (1) the impeachment value of the prior crime, (2) the date of conviction and the defendant’s subsequent history, (3) the similarity of the past and charged crimes, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. Jones, 271 N.W.2d at 538; Minn. R. Evid. 609(a).

Applying the Jones factors to Carr’s prior convictions supports the admission of the impeachment evidence. First, Carr’s prior convictions had impeachment value because they helped “the jury see the ‘whole person’ of the defendant and better evaluate his . . . truthfulness.” Swanson, 707 N.W.2d at 655. Second, Carr’s prior convictions took place within the past ten years. Third, the prior convictions are entirely dissimilar to the charges of which Carr was convicted here, which decreases the likelihood that they were more prejudicial than probative and weighs in favor of admissibility. Id. The fourth and fifth factors can be combined. Because Carr’s version of the facts differed from those of the police officers on the scene, his testimony at trial was important, and his credibility was therefore central. All five Jones factors weigh in favor of admitting the impeachment evidence of Carr’s prior convictions, so the district court did not commit plain error affecting substantial rights when it allowed the evidence before the jury without applying the Jones factors.

Carr’s assertion that the district court abused its discretion when it failed to give a limiting instruction to the jury regarding Carr’s prior convictions is also not properly before us because Carr proposed no limiting instruction and did not object to the omission of a limiting instruction. “[A] defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). In the absence of an objection, we review jury instructions only for plain error that affects substantial rights and for error of fundamental law. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (citation omitted). To establish that an error affects substantial rights, the party challenging the jury instructions must show that “the error was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An error is “prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” Id. (quotation omitted). Carr essentially argues only that the limiting instruction should have been given; he fails to sustain his burden of establishing prejudice. See id. (noting that a defendant bears the “heavy burden” of persuading an appellate court that the error affected substantial rights). There is no reasonable likelihood that the jury would have credited Carr’s version of events over the state’s version upon hearing the limiting instruction. Under a plain-error analysis, omission of a limiting instruction does not warrant a new trial here.

III.

Carr raises several arguments in his pro se supplemental brief, but none warrants reversal of his convictions. To the extent that Carr’s pro se arguments duplicate the arguments that his attorney makes on appeal, we have addressed them above. Additionally, Carr argues that police officers improperly searched him without a warrant. Generally, police officers must secure a warrant before searching an individual. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971). But two exceptions to the warrant requirement justify the warrantless search here. First, a person’s body and the area within his immediate control may be searched incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969). Because Carr’s arrest was supported by probable cause, the arrest was lawful and the search was valid. Second, a police officer may make an investigative seizure, commonly referred to as an investigative stop, or a Terry stop, of an individual if the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980). Here, the off-duty police officer recognized Carr, saw a gun in Carr’s possession, believed Carr to be ineligible to possess a gun, and communicated this information to the officers arriving on the scene, who then had an articulable suspicion that Carr was armed and engaged in criminal activity. Under either of the exceptions above, the warrantless search of Carr was valid. We have carefully considered Carr’s remaining pro se arguments and conclude that none warrants reversal of his convictions.

Affirmed.