                        This opinion will be unpublished and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
                                   A13-1340

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Reinaldo Quesada,
                                      Appellant.

                              Filed September 2, 2014
                                     Affirmed
                                  Johnson, Judge

                            Freeborn County District Court
                               File No. 24-CR-12-1933


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

Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Hooten, Judge.
                         UNPUBLISHED OPINION

JOHNSON, Judge

       A Freeborn County jury found Reinaldo Quesada guilty of being an ineligible

person in possession of a firearm. During the trial, the district court permitted the

prosecutor to refer to the charged offense as “felon in possession of a firearm,” and the

district court instructed the jury that Quesada was charged with the offense of “felon in

possession of a firearm.” Quesada argues that these references to him as a “felon”

deprived him of his right to a fair trial. We affirm.

                                          FACTS

       On the evening of October 29, 2012, Officer Adam Hamberg of the Albert Lea

Police Department responded to a report of a fight at a residence.          The dispatcher

informed the officer that the fight might have involved a gun. After Officer Hamberg

arrived at the scene, witnesses said that Quesada had been at the home earlier in the

evening and, after an altercation, pointed a black handgun at several people in the home

and threatened to kill them. One witness also said that Quesada and another man fled the

home on foot. Officer Hamberg drove to the area of Quesada’s home and found him

hiding in a neighbor’s backyard storage shed. Officers searched the shed and found a

“black handgun style” BB gun.

       The state charged Quesada with one count of second-degree assault, in violation of

Minn. Stat. § 609.222, subd. 1 (2012); one count of being an ineligible person in

possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2012); and one

count of making terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2012).


                                              2
       The case was tried over three days in January and February 2013. Immediately

before trial, Quesada and the state tentatively agreed to stipulate that Quesada is

ineligible to possess a firearm, which would have made it unnecessary for the state to

introduce evidence of Quesada’s prior felony convictions. But Quesada withdrew from

the agreement before the stipulation was finalized. Quesada’s attorney expressed concern

that a stipulation might be inconsistent with an affirmative defense that might be pursued.

       Before the jury was brought into the courtroom, the prosecutor indicated his

intention use the term “felon in possession of a firearm” in his opening statement.

Quesada objected on the ground that the proper term for the second charged offense is

“prohibited person in possession of a firearm.” The district court overruled Quesada’s

objection on the ground that the statute defines an “ineligible person” to include a person

who has a previous “felony conviction.” During his opening statement, the prosecutor

referred to Quesada as a “convicted felon . . . prohibited by Minnesota law from

possessing any firearm,” described the second charged offense as “prohibited person, in

this case meaning a convicted felon, in possession of a firearm,” and described the second

charged offense a second time as “felon in possession of a firearm.”

       The state called nine witnesses; Quesada called one witness and testified in his

own defense. The state’s witnesses testified that Quesada and another man were at a

party and attempted to take another guest’s wallet. The state’s witnesses testified that,

after a physical altercation, Quesada pointed a handgun at various people in the home and

threatened to kill them. In his own testimony, Quesada agreed that he was at the home

that evening but denied trying to take another guest’s wallet and denied possessing a gun,


                                             3
other than to pick it up momentarily to move it as a safety precaution when others began

fighting.

         After the close of the evidence, the district court instructed the jury that the second

charged offense was entitled “felon in possession of a firearm.” On five occasions during

his closing argument, the prosecutor referred to the second charged offense as “felon in

possession of a firearm.” The jury found Quesada guilty on all three counts. In April

2013, the district court imposed concurrent prison sentences of 60 months for being an

ineligible person in possession of a firearm and 45 months for second-degree assault.

Quesada appeals.

                                        DECISION

         Quesada argues that the district court erred by allowing the prosecutor to refer to

him as a felon and by describing the second charged offense as “felon in possession of a

firearm.” Quesada contends that the district court’s rulings and instructions denied him

his right to a fair trial. The state did not file a responsive brief. The appeal is submitted

for a decision on the merits despite the absence of a responsive brief. See Minn. R. Civ.

App. P. 142.03.

         Quesada makes a relatively narrow argument on appeal by relying on only three

opinions, only one of which is precedential. In short, Quesada argues that the district

court’s rulings and instructions are contrary to State v. Davidson, 351 N.W.2d 8 (Minn.

1984).      In that case, the defendant was charged with being an ineligible person in

possession of a firearm and sought a stipulation concerning his ineligibility so that the

jury would not learn that he was a “convicted felon.” Id. at 9. The district court denied


                                                4
his request for a stipulation and instructed the jury that Davidson previously had been

convicted of arson. Id. On appeal, the supreme court determined that the district court

had erred because, “in a prosecution for being a felon in possession of a weapon, the

defendant should be permitted to remove the issue of whether he is a convicted felon by

stipulating to that fact” to avoid encouraging the “jury to find defendant guilty for the

wrong reason.” Id. at 11. But the supreme court also concluded that the error “was not

so prejudicial as to require reversal.” Id. at 12.

       The Davidson opinion is distinguishable from this case. The holding in Davidson

is based on the fact that the district court denied the defendant’s request for a stipulation.

Id. at 10-12. In this case, however, Quesada and his trial counsel chose not to enter into a

stipulation. Quesada does not argue that either the state or the district court prevented

him from entering into a stipulation that he was ineligible to possess a firearm. In the

absence of such a stipulation, the state was required to prove, beyond a reasonable doubt,

that Quesada was ineligible to possess a firearm. See Minn. Stat. § 624.713, subd. 1(2).

To satisfy its burden of proof, the state introduced evidence that Quesada previously was

convicted of two crimes of violence, specifically, a “third-degree felony drug” conviction

and an “aiding and abetting third-degree drug” conviction.           The Davidson opinion

provides no assistance to a person such as Quesada, who did not enter into a stipulation

concerning his ineligibility.    The Davidson opinion may even undermine Quesada’s

argument because it refers to the charged offense in that case as “felon in possession of a

handgun” on four separate occasions. Id. at 9, 10, 11.        Thus, Quesada is incorrect in

arguing that Davidson requires the reversal of his convictions.


                                               5
       Quesada also relies on two unpublished opinions of this court.         Unpublished

opinions of this court are not precedential. Minn. Stat. § 480A.08, subd. 3(c) (2012);

Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004); State v. Porte, 832

N.W.2d 303, 312 n.1 (Minn. App. 2013). Thus, Quesada may not obtain the reversal of

his convictions based on unpublished opinions. Nonetheless, the unpublished opinions

he cites are distinguishable.

       Although we are confident that no error occurred, we nonetheless note that, even if

there were an error, it would be a harmless error. See Minn. R. Crim. P. 31.01; State v.

Bouwman, 354 N.W.2d 1, 8 n.7 (Minn. 1984); Porte, 832 N.W.2d at 312. The state

introduced evidence of Quesada’s prior felony convictions for the purpose of impeaching

his credibility. See Minn. R. Evid. 609. Quesada does not argue that the state did so

improperly. In Davidson, the supreme court expressly qualified its opinion by stating,

“Prior convictions would still be useable under Minn. R. Evid. 609 to impeach the

defendant if he testified.” 351 N.W.2d at 11. Thus, the jury in this case would have

learned that Quesada is a convicted felon even if the prosecutor and the district court had

not used the word “felon” when referring to the second offense charged.

       Affirmed.




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