                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1663

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Wayland Deshawn Jones,
                                      Appellant.

                                Filed September 8, 2014
                                       Affirmed
                                      Kirk, Judge

                             Hennepin County District Court
                               File No. 27-CR-11-37345


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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, Eagan, Minnesota (for appellant)


         Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Kirk,

Judge.
                         UNPUBLISHED OPINION

KIRK, Judge

       On appeal from his conviction of being an ineligible person in possession of a

firearm, appellant argues that the district court committed reversible error by accepting

his stipulation to an element of the offense without securing a sufficient jury-trial waiver

on that element. We affirm.

                                         FACTS

       On November 30, 2011, three plainclothes Minneapolis police officers were on

patrol in an unmarked squad car in the area of 23rd Avenue North and Sixth Street North

in Minneapolis. At approximately 12:00 a.m., the officers observed two individuals

dressed in black cross 23rd Avenue North and head south on Sixth Street North. The

officers saw one of the individuals yank on the front doors of two houses, while the

second individual stood watch. The officers requested that uniformed officers in marked

squad cars stop the two individuals.

       Police officers in two marked squad cars responded to the request. The officers

illuminated the area with their headlights, revealing two individuals who immediately

began running westbound on Sixth Street.          The undercover officers followed the

individuals in their unmarked car. One of the officers observed an individual, who was

later identified as appellant Wayland Deshawn Jones, cross an alley that was illuminated

by the unmarked car’s headlights. The officer saw a silver handgun in appellant’s right

hand. The second individual split off from appellant and began running down the alley

towards the unmarked squad car, and the officer observed a black handgun in his right


                                             2
hand. The other two undercover officers also observed both men carrying handguns in

their right hands as they crossed the alley, but they could not see the colors of the

handguns.

      One of the uniformed officers who responded to the undercover officers’ request

for assistance observed a silver semi-automatic handgun lying in the driveway in the back

of 2206 Lyndale Avenue North as he ran after appellant. The handgun was missing the

magazine, which he saw a few feet away. When the officer stopped running and stood

near the handgun, he observed appellant hiding approximately 20 feet away in the

backyard of 2210 Lyndale Avenue North. The officer pointed his gun at appellant and

ordered him to lie on the ground; appellant cooperated. One of the undercover officers

placed appellant in handcuffs and took the silver handgun into evidence. A short time

later, police officers arrested the second individual and located a black Smith & Wesson

handgun nearby.

      A forensic scientist at the Minnesota Bureau of Criminal Apprehension analyzed

DNA evidence recovered from both handguns.          The DNA profile that the scientist

obtained from the silver Ruger handgun indicated a mixture of DNA from three or more

individuals. The DNA profile that the scientist obtained from the black Smith & Wesson

handgun was also consistent with a mixture of DNA from three or more individuals. The

scientist compared appellant’s DNA profile with the DNA profiles on both guns, and she

concluded that appellant could not be excluded from being a contributor to the DNA

mixture on either one of them.     The scientist concluded that 96.7% of the general

population would be expected to be excluded from the DNA mixture found on the Ruger


                                           3
handgun, and 93.6% of the general population could be excluded from being a

contributor to the DNA mixture found on the Smith & Wesson handgun.

       Respondent State of Minnesota charged appellant with possession of a firearm by

an ineligible person. The complaint alleged that appellant was ineligible to possess a

firearm because he was adjudicated delinquent for second-degree assault in 2007, and

that he illegally possessed a firearm on November 30, 2011.

       The district court held a six-day jury trial. Before testimony began, the parties

discussed their agreement to present the following stipulation to the jury: “Both parties

stipulate and agree [that] the defendant, Wayland Jones, is a person who is prohibited

from possessing firearms under the laws of the State of Minnesota. This stipulation is

evidence for your consideration just like any other evidence presented in this case.” The

district court asked appellant if he agreed that the stipulation could be read to the jury,

and appellant replied, “Yes.” Appellant’s counsel then questioned appellant as follows:

              [APPELLANT’S COUNSEL]: [W]e’re here for a jury trial
              today, and you understand that at a trial you’re presumed
              innocent. And it’s [the prosecutor’s] job to prove you’re
              guilty beyond a reasonable doubt.
              [APPELLANT]: Yeah.
              [APPELLANT’S COUNSEL]: And in order to prove you
              guilty beyond a reasonable doubt, she has to prove each and
              every [element] of the offense. Do you understand that?
              [APPELLANT]: Yes.
              [APPELLANT’S COUNSEL]: And one of the elements of
              being a prohibited person in possession of a firearm is that
              you were actually prohibited from possessing a firearm. Do
              you understand that’s one of the elements?
              [APPELLANT]: Yeah.
              [APPELLANT’S COUNSEL]: And the reason that you’re
              prohibited from possessing a firearm is because you were
              adjudicated delinquent of a second[-]degree assault which is


                                            4
considered a crime of violence under the statutes. Do you
understand that?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]:                  And that juvenile
adjudication for second[-]degree assault then subsequently
prevents you from possessing a firearm. Do you understand
that?
[APPELLANT]: Yeah.
[APPELLANT’S COUNSEL]: So by agreeing to this
stipulation, what we’re doing is we’re agreeing that the jury
be informed that you’re not—that you’re a person who’s
prohibited from possessing a firearm, but they will not have
the information that it’s because of an adjudication for
second-degree assault. Do you understand that?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: And by agreeing that you’re a
prohibited person, you’re agreeing that [the prosecutor] does
not have to prove to a jury that you in fact have this juvenile
adjudication for second-degree assault?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: Do you have any questions
about what that stipulation means?
[APPELLANT]: No.
[APPELLANT’S COUNSEL]: And are you agreeing to that
stipulation freely and voluntarily, meaning nobody’s forcing
you to do so?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: And you and I talked about
the pros and cons so to speak of having that stipulation?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: And you’ve been able to ask
me the questions you want to ask me?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: And you understood the
answers?
[APPELLANT]: Yes.
[APPELLANT’S COUNSEL]: So you do admit that you did
have a prior felony adjudication, a crime of violence in 2007?
[APPELLANT]: Yep.




                              5
       At the end of the state’s presentation of its case, the district court read the

stipulation to the jury. Appellant then waived his right to testify at trial. The jury found

appellant guilty of possession of a firearm by an ineligible person. This appeal follows.

                                       DECISION

       To convict appellant of possession of a firearm by an ineligible person, the state

was required to prove that appellant (1) was previously convicted of “a crime of

violence” and (2) possessed a firearm.         Minn. Stat. § 624.713, subd. 1(2) (2010).

Appellant argues that the district court erred by accepting his stipulation to the first

element without obtaining his waiver of all his jury-trial rights, in particular his right to

call witnesses, to cross-examine witnesses, and to testify on his own behalf. He contends

that the district court’s error necessitates reversal of his conviction and a new trial.

       Because appellant did not object to the district court’s failure to obtain his

personal waiver of some of his jury-trial rights, this court applies plain error review.

State v. Kuhlmann, 806 N.W.2d 844, 852 (Minn. 2011). “On appeal, an unobjected-to

error can be reviewed only if it constitutes plain error affecting substantial rights.” State

v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006).               The plain error standard requires

(1) error; (2) that is plain; and (3) that affects substantial rights. State v. Griller, 583

N.W.2d 736, 740 (Minn. 1998). “An error is plain if it was clear or obvious.” State v.

Strommen, 648 N.W.2d 681, 688 (Minn. 2002) (quotations omitted). “An error affects

substantial rights if the error was prejudicial and affected the outcome of the case.”

Kuhlmann, 806 N.W.2d at 853.




                                               6
       A defendant has a right to a jury trial in a criminal case under both the United

States and Minnesota Constitutions. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The

right to a jury trial “includes the right to a jury determination that the defendant is guilty

of every element of the crime with which he is charged, beyond a reasonable doubt.”

Kuhlmann, 806 N.W.2d at 848. A defendant may waive his right to a jury trial and that

waiver must be knowing, intelligent, and voluntary. Id. A defendant also may waive his

right to have a jury determine an element of the offense by stipulating to that element.

State v. Craig, 807 N.W.2d 453, 466 (Minn. App. 2011), aff’d, 826 N.W.2d 789 (Minn.

2013). “A defendant’s stipulation must specifically waive his or her right to testify, to

require favorable witnesses to testify in his or her defense, to have the state’s witnesses

testify, and to question the state’s witnesses.” Id. The defendant must personally waive

these jury-trial rights. Id.

       Here, appellant’s counsel questioned appellant extensively on the record about his

decision to stipulate that he is prohibited from possessing firearms; whether he

understood that the prosecutor had to prove his guilt beyond a reasonable doubt on each

element of the offense, including that he is prohibited from possessing firearms; and

about the previous offense that resulted in him being prohibited from possessing a

firearm.   Appellant also agreed that he understood that the jury would not receive

information about his underlying offense; that he was entering into the stipulation freely

and voluntarily after having an opportunity to discuss it with his counsel; and admitted

that he has a prior felony adjudication from 2007. But appellant’s counsel did not

question appellant on the record to establish that, as to the stipulated element, he was


                                              7
giving up his jury-trial rights, including his right to call witnesses, to cross-examine

witnesses, and to testify. It was error to fail to obtain appellant’s waiver of these trial

rights.

          But the error does not affect appellant’s substantial rights because it was not

prejudicial and did not affect the outcome of the case. See Kuhlmann, 806 N.W.2d at

853. Appellant does not argue that he did not call witnesses, cross-examine witnesses, or

testify because he was not advised of his right to do so. He also does not dispute the

existence of his prior juvenile adjudication or argue that the stipulation was not

admissible. See id. And appellant benefitted from the stipulation because it prevented

the state from presenting evidence of the circumstances surrounding his prior offense,

which protected him “from the possibility that the jury might improperly use his previous

conviction[] as evidence that he committed the current offense.” Id. Accordingly, the

district court did not commit plain error affecting appellant’s substantial rights by

accepting appellant’s stipulation to the prior-conviction element of the offense and

waiver of his jury-trial rights on that element.

          Minnesota courts are seeing more and more cases where a prior conviction is an

element of a criminal prosecution, including ineligible-possession-of-a-firearm cases,

domestic-abuse cases, driving-while-impaired cases, and others. This court regularly

reviews cases where stipulations by defendants do not adequately address all of the jury-

trial waiver requirements of Craig, as well as cases where a defendant claims ineffective

assistance of counsel because his counsel did not advise him to stipulate to his prior

conviction or adjudication. When a prior conviction or adjudication is an element in a


                                              8
case, the best practice is for the parties and the district court to address issues surrounding

the defendant’s prior conviction or adjudication before trial. This helps facilitate the

early entry of stipulations to a prior conviction or adjudication and a proper waiver of all

of the defendant’s jury-trial rights. It also affords the district court the opportunity to

fully address the advantages and disadvantages of stipulating to a prior conviction or

adjudication with a pro se defendant.

       Affirmed.




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