                         This opinion will be unpublished and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
                                    A15-1798

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  David Wayne Grauel,
                                       Appellant.

                                 Filed October 3, 2016
                                       Affirmed
                                  Rodenberg, Judge

                             Kanabec County District Court
                                File No. 33-CR-14-218

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

Barbara McFadden, Kanabec County Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Tracy M., Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his convictions of five counts of receiving stolen property, appellant

argues he is entitled to a new trial because the district court plainly erred by reading a
no-adverse-inference instruction to the jury concerning appellant’s decision not to testify.

Appellant did not personally consent on the record to the instruction. We affirm.

                                           FACTS

       Following a two-day jury trial in March 2015, appellant David Wayne Grauel was

convicted of five counts of receiving stolen property. Appellant did not testify, and defense

counsel specifically requested the no-adverse-inference instruction concerning that

decision. Counsel also assented on the record to the district court’s prepared instructions,

which included the requested instruction. But the appellant himself was never asked on

the record whether he wanted the instruction to be given to the jury.

       The district court instructed the jury both orally and in writing, and in each version

gave the no-adverse-inference instruction. The instruction was: “The defendant has the

right not to testify. This right is guaranteed by the federal and state constitutions. You

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

       In summation, defense counsel highlighted appellant’s decision not to testify and

appellant’s right not to testify and argued concerning the state’s burden of proof as follows:

              There’s a few constitutional rights the judge covered and I want
              to highlight those because they’re important. One of them is
              that my client does not have any duty to take the stand in his
              own case. He’s not required to take the stand and testify in his
              own case. And you can’t draw any inferences from that, from
              his invoking that constitutional right, that is a right that we’re
              all entitled to, and I want to highlight that because he did not
              testify in this trial.
                      Now, the [other] constitutional right I want to highlight
              is that he’s presumed innocent. My client does not have to
              prove that he is innocent. The state has the burden of proof to
              prove to you all beyond a reasonable doubt that my client is
              guilty. Now, these are all rights that we’re entitled to and I just


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              want to take a moment to make sure to highlight those for you
              all.

       The jury returned guilty verdicts on all counts. This appeal followed.

                                      DECISION

       Appellant argues that he is entitled to a new trial because the district court erred by

giving the no-adverse-inference instruction without making a record of appellant’s express,

personal consent to the instruction. Because appellant did not make this objection at trial,

we review for plain error. See State v. Davis, 820 N.W.2d 525, 537 (Minn. 2012); State v.

Darris, 648 N.W.2d 232, 240 (Minn. 2002).

              Under our plain-error test, we consider whether the jury
              instructions contained an (1) error (2) that was plain and (3)
              that affected the defendant’s substantial rights. If these three
              prongs of our plain-error test are met, we then decide whether
              we must address the error to ensure fairness and the integrity
              of the judicial proceedings.

State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotation and citation omitted).

       There is no dispute that the district court’s no-adverse-inference instruction to the

jury was substantively correct. See 10 Minnesota Practice, CRIMJIG 3.17 (2015); see also

Minn. Stat. § 611.11 (2014) (stating that “failure to testify shall not create any presumption

against the defendant”).     But a district court “ordinarily should obtain a criminal

defendant’s permission before giving CRIMJIG 3.17,” and should make a record of such

consent. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988) (emphasis added). The

supreme court has held that “giving the instruction without [a defendant]’s permission on

the record [is] error.” Darris, 648 N.W.2d at 240. The supreme court made an even

stronger statement in State v. Gomez, 721 N.W.2d 871 (Minn. 2006), holding that “[i]f the


                                              3
defendant requests the instruction, the court or the defendant’s counsel must make a record

of ‘the defendant’s clear consent and insistence that the instruction be given.’” Id. at 880

(emphasis added) (quoting McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002)).

       Most recently, however, the supreme court held that it is not plainly erroneous to

give the no-adverse-inference instruction in the absence of the defendant’s explicit personal

consent where the record indirectly demonstrates a defendant’s consent to the instruction

in other ways. State v. Clifton, 701 N.W.2d 793, 798 (Minn. 2005). In Clifton, the

defendant did not explicitly consent to the no-adverse-inference instruction on the record.

Id. But the district court made a record of the defendant’s decision not to testify, “his

acknowledgment that no adverse inference could be drawn” from that decision, and his

understanding that “he could request or decline a no-adverse-inference instruction.” Id.

The record in Clifton also showed that the defendant had a private discussion with his

counsel concerning the instruction. Id. The final jury instructions in Clifton included the

no-adverse-inference instruction, and the record reflected defense counsel’s assent to the

final jury instructions. Id. Ultimately, the supreme court in Clifton held that the words and

conduct of the defendant and his counsel sufficiently demonstrated consent, and that a new

trial was not warranted. Id.

       Here, the district court should have obtained appellant’s personal consent on the

record before giving the no-adverse-inference instruction. But Clifton calls into question

whether the district court’s failure to do so in this case constitutes plain error. We need not

resolve that question, however, because appellant has not shown that the claimed error,

even if it was plain error, affected his substantial rights. See State v. Goelz, 743 N.W.2d


                                              4
249, 258 (Minn. 2007) (“If a defendant fails to establish that the claimed error affected his

substantial rights, we need not consider the other factors.”). “When . . . a defendant fails

to object to a no-adverse-inference instruction, he bears a heavy burden of showing that

substantial rights have been affected.” Davis, 820 N.W.2d at 538 (citation and quotation

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 (citation

and quotation omitted). If the error did not affect the defendant’s substantial rights, a new

trial is not warranted. Milton, 821 N.W.2d at 805.

       The supreme court has held that, where the defense adopts a trial strategy

“highlighting [the defendant’s] right not to testify,” it is very difficult to demonstrate on

appeal that a district court’s no-adverse-inference instruction, even if erroneous, affected

the defendant’s substantial rights. Davis, 820 N.W.2d at 538.

       Here, the record demonstrates that appellant’s defense strategy was to ensure that

the jury was cognizant of his right not to testify and, correspondingly, that the jurors not

be prejudiced against him for exercising his privilege not to testify. Appellant’s trial

counsel used the existence of the privilege to highlight that the state bears the burden of

proof beyond a reasonable doubt and that appellant was not obligated to prove or disprove

anything. This emphasis followed counsel’s request for a no-adverse-inference instruction

and counsel’s assent to the final prepared instructions before they were given to the jury.

Appellant has not demonstrated a “reasonable likelihood” that the no-adverse-inference

instruction had a “significant effect” on the verdict. Even if the district court plainly erred




                                              5
in failing to make an adequate record concerning the no-adverse-inference instruction,

appellant’s substantial rights were not affected. See id. at 537-38.

       Affirmed.




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