                           This opinion will be unpublished and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
                                      A15-0414

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                     Jesse B. Bennett,
                                        Appellant.

                                 Filed March 14, 2016
                    Affirmed in part, reversed in part, and remanded
                                       Kirk, Judge

                             Blue Earth County District Court
                                 File No. 07-CR-13-4166

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

KIRK, Judge

         Appealing his convictions for third-degree controlled-substance crime and fourth-

degree controlled-substance crime, appellant asserts that he is entitled to a new trial
because the district court erroneously: (1) allowed a police officer to testify at trial about

appellant’s prior incarceration; (2) instructed the jury on appellant’s right to testify without

obtaining his consent; and (3) convicted him of a lesser-included offense. We affirm in

part, reverse in part, and remand.

                                       DECISION

       Challenging his convictions for third-degree controlled-substance crime and fourth-

degree controlled-substance crime (possession), appellant Jesse B. Bennett asserts the

district court made three errors, which we address in turn.

        “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203

(Minn. 2003). “A court abuses its discretion when it acts arbitrarily, without justification,

or in contravention of the law.” State v. Mix, 646 N.W.2d 247, 250 (Minn. App. 2002),

review denied (Minn. Aug. 20, 2002). Where a defendant fails to object to the admission

of evidence, we review for plain error. See Minn. R. Crim. P. 31.02. “The plain error

standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected

substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “If those three

prongs are met, we may correct the error only if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. (quotation omitted).

       Officer’s testimony regarding appellant’s prior incarceration

       Appellant argues that his convictions should be reversed and that he should be

granted a new trial because the district court plainly erred by allowing Police Officer Matt

Vitale, who, at the time in question, worked for the Minnesota River Valley Drug Task


                                               2
Force, to testify about appellant’s prior incarceration during trial. Officer Vitale testified

about appellant’s sale of OxyContin tablets to a confidential informant (C.I.) during a sting

operation, and that appellant told the C.I. that he was going out of town for two months to

serve jail time. Appellant did not object to the officer’s testimony. The state concedes that

the officer’s testimony may have been inadmissible, but argues that any error did not affect

appellant’s substantial rights.

       Minnesota appellate courts have found that references to a defendant’s prior

incarceration can be unfairly prejudicial. State v. Manthey, 711 N.W.2d 498, 506 (Minn.

2006); State v. Hjerstrom, 287 N.W.2d 625, 627-28 (Minn. 1979). Here, Officer Vitale’s

testimony referencing appellant’s incarceration is plain error. Manthey, 711 N.W.2d at

506. “An error is plain if it was clear or obvious,” and “[u]sually this is shown if the error

contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d at

294, 302 (Minn. 2006) (citations omitted) (internal quotation marks omitted).

       To determine whether Officer Vitale’s testimony affected appellant’s substantial

rights, we apply the factors set forth in State v. Prtine, 784 N.W.2d 303, 314-15 (Minn.

2010). “To determine if the error was prejudicial, we evaluate the strength of the evidence

against the defendant, the pervasiveness of the improper suggestions and whether the

defendant had an opportunity to (or made efforts to) rebut the improper suggestions.”

Prtine, 784 N.W.2d at 314 (citations omitted). “Unobjected-to error affects substantial

rights if there is a reasonable likelihood that the absence of misconduct would have had a

significant effect on the jury’s verdict.” Id.




                                                 3
       We conclude that Officer Vitale’s testimony did not affect appellant’s substantial

rights. Strommen, 648 N.W.2d at 686. There was overwhelming evidence of appellant’s

guilt. The C.I., who was respondent State of Minnesota’s key witness at trial, testified to

his direct involvement in purchasing OxyContin tablets from appellant and was subjected

to extensive cross-examination. The C.I. positively identified appellant at trial as the

person who sold him the drugs.

       There was also strong circumstantial evidence tying appellant to the crime. Prior to

the sting operation, the C.I. told Officer Vitale that appellant drove a 1999 Plymouth

Voyager, and identified appellant through his driver’s license photograph, which was

provided by Officer Vitale. During the sting operation, Officer Vitale observed the C.I.

enter what appeared to be a 1998 Plymouth Voyager, which was driven by appellant.

Although Officer Vitale was unable to discern the middle letter of the Plymouth Voyager’s

license plate, he observed that the vehicle’s license plate was largely consistent with the

license plate registered to appellant. The C.I. was outfitted with an audio wire. Officer

Vitale listened to a live audio recording of the drug transaction and only heard the voices

of two people inside the vehicle. After the transaction, drug-force agents followed the

Plymouth Voyager and observed it stop at an address with which appellant was known to

be associated.

       Officer Vitale’s testimony relating to appellant’s prior incarceration was brief,

isolated, and not repeated by the prosecutor. Prtine, 784 N.W.2d at 315. Officer Vitale

made a single, brief reference to appellant’s incarceration. The key things that stand out

from his testimony are not that appellant was going to jail for two months, but that he sold


                                             4
OxyContin for money, and that he was interested in doing further drug deals with the C.I.

in the near future. Moreover, a curative instruction by the district court might have

unnecessarily drawn the jury’s attention to Officer Vitale’s statement. State v. Haglund,

267 N.W.2d 503, 506 (Minn. 1978). Appellant also had an opportunity to rebut Officer

Vitale’s testimony, but failed to do so. Hence, reversal of the jury’s verdict is not warranted

because appellant has not shown the error affected his substantial rights.

       No adverse-inference instruction

       Generally, a district court should not instruct the jury about a defendant’s right not

to testify unless the defendant specifically requests the instruction. McCollum v. State, 640

N.W.2d 610, 616-17 (Minn. 2002); see also Minn. Stat. § 611.11 (2014) (stating that a

defendant in a criminal trial has the right to testify, but failure to do so “shall not create any

presumption against the defendant”). Because caselaw defines this standard, it is therefore

plain error when the district court instructs the jury on a defendant’s right not to testify

without first obtaining his consent on the record. State v. Gomez, 721 N.W.2d 871, 880-81

(Minn. 2006). We are left to determine whether the error affected appellant’s substantial

rights. See Strommen, 648 N.W.2d at 686.

       In Gomez, the Minnesota Supreme Court analyzed whether the defendant was

prejudiced when the district court gave the jury a no-adverse-inference instruction without

his consent, and he did not object at trial. 721 N.W.2d at 880. The court stated that the

primary issue at trial was the identity of the murderer, and examined the strength of the

circumstantial evidence tying appellant to the crime. Id. at 881. It concluded that “it

seem[ed] unlikely that the jury would have reached a different verdict” based on the strong


                                                5
circumstantial evidence presented by the state, including the testimony of the state’s key

witness, who was subjected to extensive cross-examination. Id. at 881-82.

       Here, appellant has failed to show that the district court’s error was prejudicial. As

previously explained, the state presented both strong direct and circumstantial evidence of

appellant’s guilt. The C.I.’s testimony constituted direct evidence of appellant’s crime,

and the C.I. was subjected to extensive cross-examination.          There was also strong

circumstantial evidence linking appellant to the drug sale. Appellant fails “to meet his

heavy burden of showing that there is a reasonable likelihood that the giving of the

instruction would have had a significant effect on the jury’s verdict.” Id. (quotation

omitted). Because appellant’s substantial rights were not affected by the error, we need

not consider the fairness and integrity of the proceedings.

       Lesser-included offense conviction

       Both appellant and the state agree for vacation of appellant’s conviction for fourth-

degree controlled-substance crime (possession) under Minn. Stat. § 152.024, subd. 2(2)

(2012), because it is a lesser-included crime of third-degree controlled-substance crime

under Minn. Stat. § 152.023, subd. 1(1) (2012).

       Minn. Stat. § 609.04, subd. 1 (2012), states that “[u]pon prosecution for a crime, the

actor may be convicted of either the crime charged or an included offense, but not both.”

Minn. Stat. § 609.04 also “bars multiple convictions under different sections of a criminal

statute for acts committed during a single behavioral incident.” State v. Jackson, 363

N.W.2d 758, 760 (Minn. 1985).




                                             6
       We conclude that the district court erred when it entered convictions on both crimes.

Fourth-degree possession is a lesser-included offense of third-degree controlled-substance

crime. See Minn. Stat. § 609.04, subd. (1)(1) (2012) (defining “included offense” as “[a]

lesser degree of the same crime”). Both convictions arose out of a single behavioral

incident. Jackson, 363 N.W.2d at 760. In this circumstance, we remand to the district

court to vacate and “adjudicate formally and impose sentence on one count only.” State v.

LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).

       Pro se arguments

       In his pro se supplemental brief, appellant raises several new issues on appeal,

including: violation of his Fourth Amendment rights; entrapment; prosecutorial

misconduct; cumulative errors; insufficient evidence; and ineffective assistance of counsel.

While it is difficult to fully understand all of his arguments, we conclude that his claims

lack merit because he does not support them with facts or the appropriate legal authority.

See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding that if the brief does not

contain an argument or citation to legal authority in support of the allegation raised, the

allegation is deemed waived). Appellant’s claims are deemed waived.

       Affirmed in part, reversed in part, and remanded.




                                             7
