                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1072

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Dustin James Wallin,
                                       Appellant.

                               Filed December 14, 2015
                         Affirmed in part and reversed in part
                                   Peterson, Judge

                               Anoka County District Court
                                File No. 02-CR-13-8085

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Derek T. Archambault, Hawkins & Baumgartner, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Peterson, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         This appeal is from convictions of third-degree driving while impaired (DWI),

obstructing a peace officer while engaged in the performance of official duties, violating

the terms of a restricted driver’s license, and leaving the scene of a property-damage
accident. Appellant argues that (1) the district court erred by (a) accepting a stipulation

to an element of the DWI offense without obtaining appellant’s personal waiver, and

(b) instructing the jury on appellant’s right not to testify without first obtaining his

personal consent to give the instruction; (2) defense counsel improperly conceded

appellant’s guilt; and (3) the evidence is insufficient to support the conviction for

violating a driver’s-license restriction. We affirm in part and reverse in part.

                                          FACTS

       At about 6:30 p.m. on November 22, 2013, S.X. was driving his car northbound on

Round Lake Boulevard. As he slowed down to turn right onto Bunker Lake Boulevard, a

U-Haul truck rear-ended his car. The U-Haul did not stop.

       At about the same time, M.D. was driving her SUV northbound on Round Lake

Boulevard about four blocks away from Bunker Lake Boulevard. She heard a loud noise

and felt a thud and realized that her SUV had been hit. A U-Haul truck was passing her

SUV on the right side. M.D. called 911 and followed the U-Haul until it stopped in a

traffic lane about three blocks away.

       Anoka County Deputy Sheriff Kevin Ivory responded to the scene. The U-Haul

driver, later identified as appellant Dustin James Wallin, did not respond to Ivory’s

repeated requests to identify himself. Ivory smelled alcohol on Wallin’s breath and noted

that his eyes were glassy and watery. Paramedics and deputy sheriffs Anne Bluml and

Troy Edmund also responded to the scene. Bluml smelled a very strong odor of alcohol

coming from Wallin and described him as having very poor coordination and walking

unsteadily. After Wallin was cleared medically, he was uncooperative about leaving the


                                              2
ambulance and had to be forcibly escorted to a squad car.           Wallin resisted being

handcuffed and then tensed up and refused to enter the squad car. Edmund tased Wallin

in the abdomen three times to get him to bend at the waist so that he could be placed in

the squad car. Edmund smelled a strong odor of alcohol coming from Wallin.

       The officers did not ask Wallin to submit to a portable breath test or perform any

field sobriety testing. Bluml was concerned that Wallin would become aggressive and

combative. A driver’s-license check showed that Wallin’s license had a restriction that

required the use of an ignition interlock device. The U-Haul was not equipped with an

ignition interlock.

       A jury found Wallin guilty of third-degree DWI, obstructing legal process,

violating the terms of a restricted driver’s license, and leaving the scene of a property-

damage accident. The district court sentenced Wallin on the third-degree DWI and

obstruction offenses. This appeal followed.

                                     DECISION

                                              I.

       Accepting stipulation without obtaining personal waiver

       A criminal defendant has the constitutional right to a jury trial for any offense

punishable by incarceration. U.S. Const. amend. VI; Minn. Const. art. I, § 6.

              This right includes the right to be tried before a jury on every
              element of the charged offense. But a defendant may waive
              the right to a jury trial on any element of an offense by
              stipulation. However, because the right to a jury trial is a
              fundamental right, waiver of this right must be personal,
              explicit, and in accordance with rule 26.01.



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State v. Fluker, 781 N.W.2d 397, 400 (Minn. App. 2010) (citations and quotation

omitted); see Minn. R. Crim. P. 26.01, subd. 1(2)(a) (“The defendant, with the approval

of the court may waive a jury trial on the issue of guilt provided the defendant does so

personally, in writing or orally on the record in open court, after being advised by the

court of the right to trial by jury and after having had an opportunity to consult with

counsel.”).

       During a pretrial hearing, defense counsel indicated that Wallin wanted to stipulate

to a prior qualified impaired-driving incident, which was an element of the enhanced

gross-misdemeanor DWI charge. After all parties discussed the stipulation, the following

exchange between the district court and Wallin occurred:

              The court: Okay. Then the second issue is you have a prior
              conviction for DWI; true?
              Wallin: Yes, Your Honor.
              The court: And a companion implied consent case, which is a
              civil case, to revoke your license; correct?
              Wallin: Yes, Your Honor.
              The court: And you are stipulating, agreeing today that that’s
              going to come in and that’s going to be the basis for the
              aggravating factor?
              Wallin: Yes, Your Honor.
              The court: So that is an element the State does not have to
              prove; true?
              Wallin: Yes, Your Honor.
              The court: Okay, in other words, sir, you are entitled to have
              a trial on that issue. You are entitled to have a trial as to
              whether or not you have that prior charge that serves as an
              aggravating factor. But if you go forward in this matter
              today, you would be waiving your right to have a trial on that
              issue. You are going to have one on everything else, but you
              are not going to have a trial on that issue. Understand that?
              Wallin: Yes, Your Honor.
              The court: And you had an opportunity to talk to your
              attorney . . . about that; true?


                                            4
              Wallin: Yes, Your Honor.
              ...
              The court: And is that what you want to do today?
              Wallin: Yes, Your Honor.

       Wallin also signed a written waiver of his right to have a jury determine the

presence of the aggravating factor on the third-degree DWI charge. But the parties agree

that, because neither the on-the-record discussion nor the written waiver expressly

waived Wallin’s individual trial rights, the waivers were inadequate, and the district court

erred by accepting the stipulation without obtaining Wallin’s personal waiver.

       Because Wallin did not object to the stipulation during trial, the plain-error

standard of review applies to this acknowledged error. State v. Kuhlman, 806 N.W.2d

844, 852 (Minn. 2011).

              Under plain-error analysis, [the defendant] must show that:
              (1) there was error; (2) that was plain; and (3) his substantial
              rights were affected. . . . If these three prongs are met, the
              reviewing court then assesses whether it should address the
              error to ensure the fairness and integrity of the judicial
              proceedings.

State v. Brown, 815 N.W.2d 609, 620 (Minn.2012) (quotations and citations omitted).

       Wallin was present when the stipulation was discussed on the record, and he

agreed to it. It was undisputed that within the preceding ten years, he had a prior

conviction for a DWI and an implied-consent driver’s-license revocation. Those facts are

objective and easily confirmed by judicial records.        Wallin notes that the written

stipulation does not say why his license was revoked in 2012. But on the record, the

district court stated, and Wallin confirmed, that he had a DWI and that there was a

companion implied-consent proceeding to revoke his license. Finally, Wallin benefitted


                                             5
from the stipulation by not having the facts about the prior offense presented to the jury.

Wallin has not shown that his substantial rights were affected when the district court

accepted the stipulation without obtaining his personal waiver of the right to trial by jury.

See Fluker, 781 N.W.2d at 402-03 (concluding that district court’s failure to obtain the

defendant’s personal jury-trial waiver was harmless error when evidence of the prior

conviction was potentially inflammatory, the stipulated elements were highly objective

and readily confirmed by public judicial records, and the defendant was present and did

not object when the stipulation was read into the record and referred to during trial).

       Instructing jury on defendant’s right not to testify without obtaining personal

consent

       “[A]t the defendant’s own request and not otherwise, [the defendant shall] be

allowed to testify; but failure to testify shall not create any presumption against the

defendant, nor shall it be alluded to by the prosecuting attorney or by the [district] court.”

Minn. Stat. § 611.11 (2014). Due to concerns about calling a defendant’s silence to the

jury’s attention, a district court ordinarily should not give a no-adverse-inference jury

instruction without first obtaining the defendant’s personal consent. McCollum v. State,

640 N.W.2d 610, 617 (Minn. 2002).

       The district court instructed the jury that “[t]he defendant has the right not to

testify. This right is guaranteed by the federal and state constitution[s]. You should not

draw any inference from the fact that the defendant has not testified in this case.” Wallin

did not request the no-adverse-inference instruction, and the state concedes that the

district court erred in giving the instruction without obtaining Wallin’s personal consent.


                                              6
       But Wallin did not object to the erroneous instruction, and an unobjected-to jury

instruction is subject to plain-error analysis. State v. Baird, 654 N.W.2d 105, 113 (Minn.

2002). A defendant who fails to object to a no-adverse-inference instruction “bears a

heavy burden of showing that substantial rights have been affected, and absent a showing

of prejudice, the instruction is harmless.” State v. Davis, 820 N.W.2d 525, 538 (Minn.

2012) (quotations omitted). “Substantial rights are affected if there is a reasonable

likelihood that giving the instruction in question had a significant effect on the jury

verdict.” Id. at 537-38 (quotation omitted).

       Wallin was involved in two crashes within a few blocks of each other and

continued driving after each crash. When he stopped a few blocks after the second crash,

he stopped in a traffic lane. Many witnesses testified that Wallin exhibited indicia of

intoxication, including poor coordination and an unsteady gait; a strong odor of alcohol;

bloodshot, watery, and glassy eyes; and belligerence. In light of the overwhelming

evidence that Wallin was intoxicated while he drove the U-Haul, continued driving after

both crashes, and was uncooperative with police officers, there is not a reasonable

likelihood that giving the no-adverse-inference instruction had a significant effect on the

jury’s verdict.

                                               II.


       To prevail on a claim of ineffective assistance of counsel, a defendant must show

“(1) that his counsel’s representation ‘fell below an objective standard of

reasonableness’; and (2) ‘there is a reasonable probability that, but for counsel’s



                                               7
unprofessional errors, the result of the proceeding would have been different.’” Nissalke

v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S.

668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). The supreme court has “held that,

when counsel for a defendant admits a defendant’s guilt without the defendant’s consent,

the counsel’s performance is deficient and prejudice is presumed. That is so because the

decision to concede a defendant’s guilt is the defendant’s decision alone to make.” State

v. Jorgensen, 660 N.W.2d 127, 132 (Minn. 2003) (citations omitted).

      At the end of closing argument, defense counsel stated:

             You [know], I told you this isn’t going to be a pleasant job.
             This is the job we give you today. Is this good enough? In
             the United States of America court system, when our proof is
             beyond a reasonable doubt, when the evidence is there, the
             threshold is clear .08, the evidence is available, and it is not
             even asked. Is that good enough for you?

             On the counts that the officers investigated, we encourage
             you to return a guilty verdict. But on the ones that they chose
             to turn a blind eye and not look for this evidence, ask yourself
             is that good enough. If you don’t think that’s good enough, I
             would ask you to return a not guilty verdict.

      Read as a whole, the gist of the argument is that the investigation was inadequate

because the police did not get evidence that was available and necessary to convict

Wallin. Wallin’s argument that defense counsel conceded guilt seems to assume that

defense counsel suggested that there were counts for which the investigation was

adequate, but defense counsel did not say that. Although the argument to which Wallin

objects was made in the context of the DWI charge, defense counsel did not identify any

charge as having been adequately investigated. Instead, defense counsel stated that the



                                            8
jury should convict only if there was a count that was properly investigated. Defense

counsel’s argument left it to the jury to decide if any count had been adequately

investigated and, therefore, was not an admission of Wallin’s guilt to any charge. Cf.

Dukes v. State, 621 N.W.2d 246, 252-53 (Minn. 2001) (remanding for new trial when

defense counsel acknowledged defendant’s guilt to aiding and abetting attempted

aggravated robbery in attempt to avoid first-degree murder conviction); State v. Moore,

458 N.W.2d 90, 97 (Minn. 1990) (granting new trial when defendant testified that he

accidentally shot the victim, but defense counsel conceded in closing argument that

defendant committed an intentional heat-of-passion crime).

                                           III.

       The state concedes that, because the record contains no evidence of willfulness,

the evidence was insufficient to support Wallin’s conviction of violating a driver’s-

license restriction.   We reverse that conviction and, therefore, we need not address

Wallin’s argument that the district court erred in instructing the jury on the elements of

that offense.

       Affirmed in part and reversed in part.




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