                          This opinion will be unpublished and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
                                     A14-0074

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Vida Kay Bjorklund,
                                       Appellant.

                                  Filed March 2, 2015
                                        Affirmed
                                    Johnson, Judge

                            Crow Wing County District Court
                                File No. 18-CR-12-1196


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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

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

         Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,

Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

       A Crow Wing County jury found Vida Kay Bjorklund guilty of aiding an offender

to avoid arrest. On appeal, Bjorklund argues that the district court erred by failing to

obtain her personal waiver of her right to a jury trial when she stipulated to two elements

of the offense and by failing to instruct the jury on the requirement that it reach a

unanimous verdict. We affirm.

                                         FACTS

       On the evening of March 1, 2012, Crow Wing County Sheriff’s Deputies Todd

Holk and Phillip Stanley went to Bjorklund’s home to arrest M.B. for his failure to

appear on a felony charge. Bjorklund and M.B. had divorced in November 2011, but law

enforcement records still showed Bjorklund’s home as M.B.’s place of residence.

       Deputy Holk had viewed photographs of M.B. and Bjorklund earlier that evening.

As the deputies approached the house, Deputy Holk saw through a window that M.B. was

standing inside the house before M.B. ducked away from the window. Deputy Holk

knocked loudly on the front door and informed M.B. that they had a warrant for his

arrest. Deputy Holk received no response and continued to knock on the door.

       As Deputy Holk was knocking, Bjorklund drove into the driveway. She asked the

deputies why they were there; they explained that they were executing a warrant for the

arrest of M.B. and had seen him inside the house. She stated that there was no one in the

house and demanded that the deputies leave. Deputy Holk asked Bjorklund whether she

had a key to the house; she said that she did not have a key with her. Bjorklund called


                                            2
911 and asked to have someone “come out and take these officers off my property.” The

dispatcher told her that the deputies were there to execute an arrest warrant. She called

911 two more times to complain about the officers being on her property, and the

dispatcher told her to stop calling. After Deputy Holk requested back-up, three more

law-enforcement officers came to the home. Deputy Holk kicked open the front door.

Once inside, the officers found M.B. in a bedroom. The officers arrested M.B. and

brought him to the county jail.

       While awaiting arraignment, M.B. called Bjorklund from the jail and asked her to

bring him a phone card. Bjorklund told him to “plead the fifth” and “don’t say nothin’.”

She also indicated that she was consulting with an attorney about M.B.’s arrest. Before

the call ended, she said, “we’ll figure it out, okay?”

       On March 19, 2012, the state charged Bjorklund with one count of aiding an

offender to avoid arrest, in violation of Minn. Stat. § 609.495, subd. 1(a) (2012). Before

trial, the parties stipulated “that [M.B.] was charged with a felony level offense on

December 27, 2011, that Vida Kay Bjorklund was an alleged victim of that crime and the

warrant for arrest was for failing to appear in court for that offense.” The case was tried

on one day in July 2013. The state called two witnesses: Deputy Holk and Deputy

Stanley. The state also played for the jury audio-recordings of Bjorklund’s three 911

calls and M.B.’s call to Bjorklund from jail.            M.B. testified for the defense, and

Bjorklund testified on her own behalf.

       During the instructions conference, the district court expressed concerns about

whether the stipulation was consistent with the evidence presented at trial. Specifically,


                                              3
the district court asked counsel whether the state sought to prove that Bjorklund aided

M.B.’s pending felony charges or M.B.’s failure to appear. The stipulation stated that the

arrest warrant was for M.B.’s failure to appear, but Deputy Holk had testified that “the

warrant was for introducing methamphetamine to a child.” The prosecutor clarified that

the arrest warrant was for M.B.’s failure to appear on the pending felony offense. The

district court also identified some confusion concerning the stipulation’s statement that

Bjorklund was a victim of M.B’s predicate offense; the district court observed that the

state’s evidence did not indicate that Bjorklund was a victim. The parties agreed to

amend the stipulation to say that Bjorklund was a witness to M.B’s predicate offense.

Ultimately, the district court incorporated the stipulation into the marshaling instruction

as follows:

              The elements of aiding an offender are:

                       First, the person aided by the Defendant committed a
              crime.

                     Second, the Defendant knew that the other person had
              committed a crime. To know requires only that the Defendant
              believed that the other person had committed the crime.

                     The Defendant has stipulated that [M.B.] was charged
              with a felony level offense on December 27, 2011, that Vida
              Bjorklund was a witness to that crime, and that a warrant for
              [M.B.’s] arrest was for failing to appear in court for that
              offense.

                     Third, the Defendant harbored, concealed, or aided the
              other person. . . .




                                             4
       The jury found Bjorklund guilty. The district court imposed a sentence of one

year and one day of imprisonment but stayed execution of the sentence and ordered

probation and jail time. Bjorklund appeals.

                                       DECISION

                                    I. Right to Jury Trial

       Bjorklund argues that the district court erred by failing to obtain her personal

waiver of her right to a jury trial when the district court accepted the stipulation

concerning M.B.’s predicate offense and the arrest warrant.

       A defendant has a constitutional right to a jury trial if she is charged with an

offense that is punishable by incarceration. U.S. Const. amend. VI; Minn. Const. art. I,

§§ 4, 6; State v. Weltzin, 630 N.W.2d 406, 410 (Minn. 2001). The right to a jury trial

includes the right to be tried by a jury on each element of the charged offense. State v.

Kuhlmann, 806 N.W.2d 844, 848 (Minn. 2011). A defendant may, however, waive her

right to a jury trial with respect to one or more elements of the charged offense by

stipulating to facts that satisfy that element. Id. In Minnesota, the right to a jury trial on

each element of the charged offense must be waived “personally, in writing or on the

record in open court, after being advised by the court of the right to trial by jury.” Minn.

R. Crim. P. 26.01, subd. 1(2)(a).

       This court applies a de novo standard of review when analyzing whether a

criminal defendant has been denied the right to a jury trial. Kuhlmann, 806 N.W.2d at

848-49. Because Bjorklund did not object to the district court’s failure to obtain her

personal waiver, we review for plain error. Id. at 852; see also Minn. R. Crim. P. 31.02.


                                              5
Under the plain-error test, an appellant is not entitled to relief on an issue to which no

objection was made at trial unless (1) there is an error, (2) the error is plain, and (3) the

error affects the appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740

(Minn. 1998). An error is “plain” if it is clear or obvious under current law, and an error

is clear or obvious if it “contravenes a rule, case law, or a standard of conduct, or when it

disregards well-established and longstanding legal principles.”       State v. Brown, 792

N.W.2d 815, 823 (Minn. 2011). An error affects the defendant’s substantial rights “if the

error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741.

If the first three requirements of the plain-error test are satisfied, we must consider the

fourth requirement, whether the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” State v. Washington, 693 N.W.2d 195, 204 (Minn.

2005) (quotation omitted). If we conclude that any requirement of the plain-error test is

not satisfied, we need not consider the other requirements. State v. Brown, 815 N.W.2d

609, 620 (Minn. 2012).

       The statute setting forth the offense of which Bjorklund was convicted states that a

person commits a crime if she

              harbors, conceals, aids, or assists by word or acts another
              whom the actor knows or has reason to know has committed
              a crime under the laws of this or another state or of the
              United States with intent that such offender shall avoid or
              escape from arrest, trial, conviction, or punishment.

Minn. Stat. § 609.495, subd. 1(a).      In this case, the parties’ stipulation essentially

established that M.B. committed a crime and that Bjorklund knew that he committed a

crime, which left the jury to decide only whether Bjorklund harbored, concealed, aided,


                                             6
or assisted M.B. in his effort to avoid or escape. See State v. Hager, 727 N.W.2d 668,

673 (Minn. App. 2007) (explaining elements of aiding offender).

       Our review of the record confirms Bjorklund’s argument that the district court did

not obtain her personal waiver of her right to a jury trial on the stipulated elements. The

state does not contend that the district court did not err by failing to do so, which

effectively is a concession of that issue. The state’s responsive brief is confined to the

third requirement of the plain-error test, which asks whether the absence of a personal

waiver affected Bjorklund’s substantial rights. See Griller, 583 N.W.2d at 741. In light

of the existing caselaw, the district court erred by not obtaining Bjorklund’s personal

waiver of her right to a jury trial on the two stipulated elements, and the error was plain.

See Kuhlmann, 806 N.W.2d at 852.

       Accordingly, we will analyze the third requirement of the plain-error test, which

asks whether the district court’s “error was prejudicial and affected the outcome of the

case.” Griller, 583 N.W.2d at 741. Bjorklund bears a “heavy burden” of persuasion on

the third requirement of the plain-error test. Id.; see also State v. Davis, 820 N.W.2d 525,

535 (Minn. 2012). Bjorklund contends that the district court’s error was prejudicial

because she did not benefit from the stipulation. In Kuhlmann, the supreme court held

that the defendant was not prejudiced by the district court’s failure to obtain a waiver of

his jury-trial rights on the previous-conviction element of his offense, in part because the

stipulation benefitted him by “protecting [him] from the possibility that the jury might

improperly use his previous convictions as evidence that he committed the current

offenses.” 806 N.W.2d at 853. In this case, the stipulation made it unnecessary for the


                                             7
state to introduce evidence that M.B. had committed a crime when he gave

methamphetamine to a child and that Bjorklund witnessed the crime. If the jury had

heard the allegations against M.B., and had learned that Bjorklund witnessed M.B.’s

predicate offense, the jury easily could have believed that Bjorklund was partially

responsible for that crime, especially in light of her supportive statements to M.B. when

he called her from jail. In fact, the record indicates that counsel for the parties entered

into the stipulation to avoid any reference to the child who allegedly was given

methamphetamine. As in Kuhlmann, the stipulation in this case protected Bjorklund

from the likelihood of prejudice. Thus, we reject her argument that the stipulation did not

benefit her.

       Bjorklund also contends that the stipulation prejudiced her because it was the only

evidence in the record to satisfy the knowledge element of the offense. In Kuhlmann, the

supreme court held that the district court’s failure to obtain the defendant’s jury-trial

waiver on stipulated elements was not prejudicial “[b]ecause the [s]tate could have

readily proven” the stipulated elements. Id. In this case, it appears that there was no

dispute that M.B. had committed a crime and that Bjorklund knew about it, which

indicates that the state could have proven the first and second elements, if necessary.

While discussing the stipulation, the prosecutor stated that Bjorklund knew that M.B. had

given a statement in which he admitted giving methamphetamine to a child, and

Bjorklund’s counsel did not disagree with the prosecutor’s statement. Bjorklund does not

address whether the state could have proved the stipulated elements; she merely contends

that the state did not offer any other evidence to prove the knowledge element. But the


                                            8
reason for the absence of such evidence is obvious: the stipulation itself. In light of the

stipulation, it would have been error for the district court to allow the state to introduce

evidence of M.B.’s crime or Bjorklund’s knowledge of the crime.                See State v.

Berkelman, 355 N.W.2d 394, 396-97 (Minn. 1984). Bjorklund has not demonstrated that,

absent the stipulation, the state would not have been able to prove the first and second

elements.

       Thus, the district court’s error in failing to obtain Bjorklund’s personal waiver of

her right to a jury trial did not affect the outcome of the trial and, therefore, is not

reversible error.

                                  II. Jury Instructions

       Bjorklund also argues that the district court erred when instructing the jury by

failing to “identify the crime committed by [M.B.] which Bjorklund was alleged to have

aided.”

       A district court must instruct the jury in a way that “fairly and adequately

explain[s] the law of the case” and does not “materially misstate[] the applicable law.”

State v. Koppi, 798 N.W.2d 358, 362 (Minn. 2011). A district court has “considerable

latitude” in selecting language for jury instructions. State v. Gatson, 801 N.W.2d 134,

147 (Minn. 2011) (quotation omitted). Accordingly, we apply an abuse-of-discretion

standard of review to a district court’s jury instructions. Koppi, 798 N.W.2d at 361.

Because Bjorklund did not object to the jury instruction at trial, we review for plain error.

State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002); Griller, 583 N.W.2d at 740-41.




                                             9
       Bjorklund’s argument is based on the requirement that the jury reach a unanimous

verdict. See Minn. R. Crim. P. 26.01, subd. 1(5). “Where jury instructions allow for

possible significant disagreement among jurors as to what acts the defendant committed,

the instructions violate the defendant’s right to a unanimous verdict.” State v. Stempf,

627 N.W.2d 352, 354 (Minn. App. 2001). If a defendant is charged with a violation of

section 609.495, subdivision 1(a), a district court must specify “what predicate conduct

by the original offender constitutes the crime.” Hager, 727 N.W.2d at 673. “Specificity

in an aiding-the-offender offense instruction is important,” because “unless the full jury

identifies the offender’s criminal act that the accused has aided, the accused may be

denied the right to a unanimous verdict.” Id. at 673-74.

       Bjorklund contends that the district court erred because, she asserts, the stipulation

refers to two predicate offenses that were committed by M.B., without requiring the jury

to unanimously agree on which offense Bjorklund aided. According to Bjorklund, the

two offenses are, first, M.B.’s commission of a felony for giving methamphetamine to a

child and, second, M.B.’s failure to appear in court on that felony charge. The state

contends, however, that the stipulation identifies only one predicate offense, namely, the

felony for giving methamphetamine to a child. Although the stipulation refers to M.B.’s

failure to appear, the stipulation does not characterize his failure to appear as a separate

predicate crime. The reference to M.B.’s failure to appear seems to have been included

in the stipulation only to allow the jury to make a connection between M.B.’s predicate

crime and M.B.’s arrest, which was the occasion when Bjorklund aided him. Because

Bjorklund stipulated to only one predicate crime, it was unnecessary for the district court


                                             10
to instruct the jury on the unanimity requirement. Thus, the district court did not err in its

jury instructions.

       Affirmed.




                                             11
