This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-165

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Reinartz,

Appellant.

 

 

Filed April 24, 2007

Affirmed
Crippen, Judge*

 

Mower County District Court

File No. K9-05-418

 

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

 

Kristen M. Nelsen, Mower County Attorney, Mower County Courthouse, 210 First Street Northeast, Austin, MN 55912 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Challenging convictions for possessing a tear-gas compound and marijuana in a motor vehicle, appellant Jason Reinartz argues that the district court undermined his pretrial stipulation by allowing the jury to learn that he has a past felony conviction, that the court failed to make on-the-record findings addressing the admissibility of impeachment evidence, and that the evidence was insufficient to prove that he possessed the tear-gas compound.  We affirm.

FACTS

In April 2005, a police officer stopped the vehicle appellant was driving after observing that the vehicle traveled slowly, swerved within its lane, and crossed the fog line.  In the vehicle, the officer found a bag with 3.3 grams of marijuana, a can of mace, and a pouch with a syringe containing methamphetamine.  Appellant has a past felony conviction that makes it illegal for him to possess mace, which is a tear-gas compound.

Before trial, appellant stipulated that he had a felony conviction.  The jury convicted appellant of possessing a tear-gas compound and possessing marijuana in a motor vehicle.

D E C I S I O N

1.

 

The defendant facing a criminal accusation has a constitutional right to a jury trial on each element of the charge.  State v. Hinton, 702 N.W.2d 278, 281 (Minn. App. 2005), review denied (Minn. Oct. 26, 2005).  But a defendant may waive a jury determination on a particular element by stipulating to its truth.  Id.  By stipulating, the defendant is able to remove from the jury’s consideration evidence that is prejudicial and of little probative value to any issue except a formal element of the offense.  State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998), review denied (Minn. July 16, 1998).  Because a stipulation is a waiver of the defendant’s right to a jury trial on the element, the defendant must personally execute a written or oral waiver of rights.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. May 18, 2004).

            Appellant argues that the district court erred when, rather than merely saying appellant’s possession of a tear-gas compound was unlawful, the court advised the jury that appellant had a past felony conviction—and by allowing the state to refer to the conviction in its opening and closing arguments.  He asserts that these references did not conform to his pretrial stipulation. 

            At trial, appellant did not object to any of the statements he now challenges.  When a defendant fails to object to the district court, this court reviews the challenged statements for plain error.  State v. Martin, 695 N.W.2d 578, 582-83 (Minn. 2005).  The appellant must show that an error occurred, that the error was plain, and that the error affected the defendant’s substantial rights, and that “it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation omitted) (alteration in original).

In this case, no error occurred.  Before trial, appellant orally agreed to stipulate that he had been convicted of third-degree possession of a controlled substance, which is a crime of violence and makes him unable to possess a tear-gas compound.  See Minn. Stat. §§ 624.713, subd. 1(b) (prohibiting person convicted of crime of violence from possessing firearm), .731, subd. 3(b) (2004) (prohibiting possession of tear-gas compound by person ineligible to possess firearm under section 624.713, subdivision 1(b)).  Although the parties did not establish what the jury would be told, at no time did appellant suggest that the court eliminate all references to the prior conviction.  It is clear from several parts of the record that appellant and his counsel believed that the jury would learn that appellant had a prior felony conviction but wanted assurance that the jury would not know any details of the conviction.

During the waiver colloquy, the court asked appellant, “You are stipulating or agree that you do have a prior conviction for Third Degree Controlled Substance, which is considered a violent crime in the state of Minnesota is that correct?”  Appellant responded, “Yes.”  Before opening arguments, the state confirmed that, in its opening statement, it could refer to the fact that appellant was a convicted felon.  The court clarified that the state could say he had been convicted of a felony but not of a crime of violence.  Appellant agreed, stating, “Perfect.”  The state complied and told the jury only that appellant “is a convicted felon. . . . It is illegal for him to possess any type of a tear gas compound.” 

When discussing the potential use of impeachment evidence, appellant argued, “We have already conceded that he is a felon.”  Finally, when discussing jury instructions, the court told the parties it intended to tell the jury that appellant “acknowledges that he has been convicted of a felony.”  The state objected, seeking to replace “felony” with the statutory phrasing, “crime of violence.”  Appellant vigorously argued against the change, asserting that the convicted-felon language should stay.  At one point, he stated, “at the outset, we didn’t agree to stipulate to a crime of violence to the jury.  We agreed to simply stipulate there was a felony, and we have acknowledged that from the start.”  The court agreed to retain the convicted-felon reference, and asked appellant personally what instruction he felt would be appropriate.  Appellant responded, “That I am a convicted felon.”

            Appellant did not state that he wanted to keep the stipulation from the jury’s knowledge, and he did not object to the state’s or the court’s characterization of the stipulation.  See Collins, 580 N.W.2d at 42 (finding appellant failed to frame stipulation in terms furnishing grounds for objection and waived right to challenge evidence on appeal); see also State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982) (finding no error in allowing state to question defendant on prior felonies when defendant did not try to keep fact of convictions from jury).  Appellant repeatedly confirmed his position and even endorsed the district court’s decisions.  Appellant never indicated to the court that he did not want the jury to know he was a convicted felon.  See State v. Davidson, 351 N.W.2d 8, 12 (Minn. 1984) (holding that district court erred by denying motion when defendant sought to stipulate to element to prevent jury from learning that he was a convicted felon).  Even if an error had occurred, appellant certainly contributed to it.  See State v. Gisege, 561 N.W.2d 152, 158-59 (Minn. 1997) (noting that although normally defendant who invites error or fails to object to instruction waives right to claim error on appeal, court may still consider claim on merits).  Appellant cites no authority suggesting that a defendant who stipulates to a prior felony conviction is entitled to eliminate all references to the conviction when he did not propose the restriction to the district court.

Appellant argues alternatively that he received ineffective assistance of counsel at trial based on the stipulation.  This court must presume that an attorney acted competently, and we are to give particular deference to an attorney’s trial strategy.  Bruestle v. State, 719 N.W.2d 698, 705 (Minn. 2006) (stating that court defers to trial strategy); State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (stating strong presumption of attorney’s competence).  To prove ineffective assistance of counsel, an appellant must establish that his counsel’s representation fell below an objective standard of reasonableness and that his counsel’s errors affected the outcome of the proceeding.  Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064 (1984); Martin, 695 N.W.2d at 587.  An attorney’s representation is objectively reasonable when he “provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  Doppler, 590 N.W.2d at 633 (quotation omitted). 

            Appellant has not met his burden of proving that his trial counsel’s representation fell below an objective standard of reasonableness.  Stipulating to his prior conviction was a trial strategy and such a stipulation is not uncommon.  By stipulating to the conviction, appellant’s attorney kept the details of appellant’s criminal past out of the trial and prevented any prejudice that may have resulted from admitting the evidence.  His attorney competently cross-examined the state’s witnesses, called his own witness, made appropriate objections throughout the trial, and advocated on appellant’s behalf.

2.

 

A party may use a witness’s prior conviction for impeachment purposes if the conviction was for a crime punishable by imprisonment for more than one year and the district court determines that the probative value of admitting the conviction evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a)(1).  To determine whether the probative value of a defendant’s prior conviction outweighs its prejudicial effect, courts consider several factors.  State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (detailing five factors).  The court must demonstrate on the record that it considered and weighed the Jones factors.  State v. Swanson, 707 N.W.2d 645, 654-55 (Minn. 2006).  This court reviews a district court’s decision on impeachment evidence for an abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

            Appellant argues that the district court failed to analyze on the record the admissibility of impeachment evidence, and that appellant made the consequent decision not to testify.  The record does not support appellant’s argument.  Following the district court’s denial of the state’s motion to admit evidence of three prior convictions for Spreigl purposes, the prosecutor raised the prospect of using the past convictions for impeachment purposes if appellant testified.  The court and parties briefly discussed the issue and the court preliminarily indicated that it would not permit the state to use the convictions, but stated that it would address the issue further when or if it arose.  But after calling one witness, appellant rested his case, never asking the court to rule on the motion.  The court confirmed on the record that appellant was waiving his right to testifyandtoldappellant, “If you decide not to testify, no one can use that against you in any way . . . .  Of course, if you do decide to testify, you would be subjected to cross-examination or possible impeachment or other things that could happen with any witness, whether it’s you or any other person.”  Appellant stated that he did not want to testify.  Again, he did not ask the court to rule on the admissibility of the state’s impeachment evidence.

The district courttook no erroneous action.  Although told by the court that it would further address the impeachment evidence if needed, appellant never asked for a ruling on the motion.  The court’s caution to appellant that he would be subjected to possible impeachment indicates that the court had not yet made a final decision.  Appellant’s claim of error is based on a mischaracterization of the court’s approach, and he has no basis to claim that he did not testify because he would have been impeached.

3.

A person who has been convicted of a crime of violence is prohibited from possessing or using an authorized tear-gas compound.  Minn. Stat. §§ 624.713, subd. 1(b) (prohibiting person convicted of crime of violence from possessing firearm), .731, subd. 3(b) (prohibiting possession of tear-gas compound by person ineligible to possess firearm under section 624.713, subdivision 1(b)).  Appellant challenges the sufficiency of the evidence to support the jury’s determination that he possessed a tear-gas compound.  When reviewing a claim of insufficient evidence, we carefully review the record to determine whether the evidence, when viewed in the light most favorable to the jury verdict, is sufficient to support the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The court assumes that the jury believed evidence supporting the verdict and disbelieved contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989); see also State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004) (noting that jury is in best position to evaluate circumstantial evidence).

Possession may be either actual or constructive.  See Porter, 674 N.W.2d at 427 (discussing possession of firearm).  The state may prove constructive possession of an item by proving that the police found the item in a place to which others had access but the evidence implies a strong probability that the defendant was consciously exercising dominion and control over the item.  Id.

            The evidence is sufficient to support the jury verdict.  Before and after appellant stopped his vehicle, the officer observed him fumbling around suspiciously near the floor of the driver’s seat.  The officer found the can of mace between the driver’s seat and the driver-side door.  When confronted with the can and his past felony conviction, appellant told the officer it was for his personal protection.  The assisting deputy also heard this statement.  Appellant points to the testimony of a friend, Emily Young, that she owned the vehicle and the mace and that she let appellant use her vehicle the day he was stopped.  But the state presented evidence that, when the stop occurred, the vehicle was registered to a man whom Young testified she did not know.  And Young’s testimony that she owned the mace presents a question of credibility.  Determining witness credibility and the weight to be given to a witness’s testimony is the exclusive province of the jury.  State v. Colbert, 716 N.W.2d 647, 653 (Minn. 2006).

Affirmed.